TAT 2012 EXAM PASS CANDIDATES COURT MATTER CASE DISPOSED ON 22-02-2017.
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C/LPA/1430/2015 CAV JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 1430 of 2015 In SPECIAL CIVIL APPLICATION NO. 4855 of 2015 With LETTERS PATENT APPEAL NO. 1431 of 2015 In SPECIAL CIVIL APPLICATION NO. 6248 of 2015 FOR APPROVAL AND SIGNATURE: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY and HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI ==========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? ==============================================================
STATE OF GUJARAT THRU SECRETARY, & 1....Appellant(s) Versus PATEL AMIT BABULAL S/O. BABULAL PATEL & 61....Respondent(s) ============================================================== Appearance: MR DM DEVNANI, AGP for the Appellant(s) No. 1 - 2 MR AR THACKER, ADVOCATE for the Respondent(s) No. 53 - 62 MR SUBRAMANIYAM IYER, ADVOCATE WITH MR. VINOD PANDYA, CAVEATOR for the Respondent(s) No. 1 - 51 RULE SERVED for the Respondent(s) No. 52 ============================================================== Page 1 of 24 HC-NIC Page 1 of 24 Created On Thu Feb 23 11:06:21 IST 2017 C/LPA/1430/2015 CAV JUDGMENT CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY and HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI Date : 22/02/2017 CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI) 1. Both these appeals are filed under Clause 15 of Letters Patent by the appellants – original respondents against common CAV judgment dated 13.08.2015 passed by the learned Single Judge in Special Civil Application No.4855 of 2015 and allied matter by which the learned Single Judge has allowed both the petitions. 2. As the issue involved in both the appeals are same and learned Single Judge has allowed the captioned petitions by common CAV judgment, these appeals are heard together and they are being disposed of by this common judgment. 3. The brief facts for deciding the controversy involved in the present appeals are as under: 3.1. The State Government in exercise of the powers conferred by Section 35 of the Gujarat Secondary and Higher Secondary Education Act, 1972 (hereinafter referred to as the 'Act of 1972') framed the Rules for selection of Teachers and Headmasters of registered private secondary and higher secondary schools by notification dated 11.02.2011. The said Rules are called the Page 2 of 24 HC-NIC Page 2 of 24 Created On Thu Feb 23 11:06:21 IST 2017 C/LPA/1430/2015 CAV JUDGMENT Teachers and Head Masters of Registered Private Secondary and Higher Secondary Schools (Procedure for Selection) Rules, 2011 (hereinafter referred to as 'the Rules of 2011'). By the said Rules, for the first time, the concept of Teacher Aptitude Test (TAT) was introduced. The said test is to be conducted by the Gujarat Secondary and Higher Secondary Education Board ('Board' for the sake of convenience). For the purpose of constitution of selection committee, duties and function of the Selection Committee, eligibility for appointment, for preparation of select list, various provisions are made in the said Rules. 3.2. After issuance of Rules of 2011, on 11.02.2011, the Board issued an advertisement on 17.09.2011 for TAT for the appointment of Teachers and Headmasters in the private registered schools. As per the Schedule given in the said advertisement, TAT for Headmaster was required to be conducted on 21.10.2011. However, the same was conducted on 25.10.2011. Similarly, TAT for Higher Secondary Teachers was required to be conducted on 20.11.2011 but the same was conducted on 18.12.2011, whereas TAT for secondary teachers was notified to be conducted on 27.11.2011. However, the said examination was conducted on 07.05.2012. 3.3. It is the case of the petitioners that in the meantime, the State Government vide Notification Page 3 of 24 HC-NIC Page 3 of 24 Created On Thu Feb 23 11:06:21 IST 2017 C/LPA/1430/2015 CAV JUDGMENT dated 18.04.2012 framed the Rules in exercise of powers conferred by the proviso to Article 309 of Constitution of India for the teachers of Government secondary and higher secondary schools. The said Rules are called Teachers of Government Secondary and Higher Secondary Schools (Procedure for Selection) Rules of 2012 (hereinafter referred to as the Rules of 2012). The said Rules also provide for the definition of TAT which is to be conducted by the Board. There also the provisions of constitution of selection committee, duties and function of the selection committee, eligibility for appointment as well as select list, etc. in the said Rules. Thus, by way of the said Rules, for the first time, TAT examination was introduced for the Government Secondary and Higher Secondary Teachers. 3.4. It is the say of the petitioners that they appeared in TAT which was held on 07.05.2012 i.e. after the Rules of 2012 were introduced. At this stage, it is the say of the petitioners that thereafter on 12.02.2014 a common advertisement was issued for TAT examination to be conducted by the Board for the appointment of teachers both in the grant-in-aid and Government schools. Pursuant to the said advertisement, TAT for the post of Headmaster was conducted on 20.12.2014, for higher secondary teacher it was conducted on 25.05.2014 and for secondary teacher, the same was conducted on 27.07.2014. However, the Page 4 of 24 HC-NIC Page 4 of 24 Created On Thu Feb 23 11:06:21 IST 2017 C/LPA/1430/2015 CAV JUDGMENT petitioners who have appeared in TAT which was conducted on 07.05.2012 did not appear in TAT which was conducted in the year 2014. 3.5. Thereafter, the appellant No.2 herein issued an advertisement on 17.07.2014 for recruitment for 978 teachers in the secondary government schools. Similarly, an advertisement was also issued for recruitment of 327 teachers in higher secondary government schools. The appellant No.2 published two selection list on 14.11.2014 for the higher secondary and secondary teachers after considering the marks obtained in TAT conducted in the years 2011-2012 and 2014. It is the case of the petitioners that while preparing the selection list, the appellants considered the average marks of two trials of TAT conducted in 2011-2012 as well as 2014. At this stage, it is required to be noted that the selection list prepared by the appellants herein was challenged by the concerned candidates before this Court by filing Special Civil Application No.17666 of 2014 with Special Civil Application No.18917 of 2014. The Division Bench of this Court, by an order dated 02.03.2015, allowed both the petitions whereby the direction was given to the appellants herein to prepare fresh select list of TAT by excluding the result of TAT of 2011. 3.6. However, at this stage, it is also required to be considered that Misc. Civil Application Page 5 of 24 HC-NIC Page 5 of 24 Created On Thu Feb 23 11:06:21 IST 2017 C/LPA/1430/2015 CAV JUDGMENT (Review) No.1359 of 2015 was filed in Special Civil Application No.17666 of 2014 by the third party along with Misc. Civil Application (Review) No.1360 of 2015 before the Division Bench of this Court. The said applications for review were rejected by the Division Bench of this Court by an order dated 17.06.2015. 3.7. Pursuant to the directions issued by this Court vide order dated 02.03.2015 passed in Special Civil Application No. 17666 of 2014 and allied matter, the appellants herein prepared fresh/revised merit list of the secondary and higher secondary government teachers by excluding the marks of TAT 2011 conducted pursuant to the advertisement dated 17.09.2011. Thus, it is the case of the respondents - original petitioners that the appellants have considered the marks obtained by the candidates in TAT conducted in the year 2014 and only those candidates who appeared in TAT of 2014 were included in the select list. Thus, the grievance of the original petitioners is that though they were selected pursuant to the advertisement issued on 17.07.2014, in the revised select list their names were deleted by not considering the result of the petitioners which was conducted in May 2012. 3.8. The petitioners have, therefore, filed the captioned petitions before this Court. The Page 6 of 24 HC-NIC Page 6 of 24 Created On Thu Feb 23 11:06:21 IST 2017 C/LPA/1430/2015 CAV JUDGMENT learned Single Judge by impugned common CAV judgment allowed both the petitions whereby the present appellants – original respondents are directed to prepare fresh select list taking into consideration the marks obtained by the petitioners in TAT held in the year 2012. The appellants – original respondents have, therefore, filed the present appeals against the impugned order passed by the learned Single Judge. 4. Heard learned Assistant Government Pleader Mr. D.M.Devnani for the appellants, learned advocate Mr. Subramaniyam Iyer with learned advocate Mr. Vinod Pandya for respondent Nos. 1 to 25 and 27 to 51, Mr. Rahul Dineshbhai Upadhyay – respondent No.26 as party-in-person and learned advocate Mr.A.R.Thacker for respondent Nos. 52 to 62. 5. Learned Assistant Government Pleader contended that the petitioners had applied for TAT pursuant to the Rules of 2011 which is framed for selection of teachers and headmasters of the registered private secondary and higher secondary schools. Advertisement for conducting TAT was published on 17.09.2011 wherein schedule was fixed for conducting TAT for headmasters, secondary teachers and higher secondary teachers. The petitioners applied pursuant to the Rules of 2011 for secondary teachers. As per the schedule, Page 7 of 24 HC-NIC Page 7 of 24 Created On Thu Feb 23 11:06:21 IST 2017 C/LPA/1430/2015 CAV JUDGMENT the examination was to be conducted on 27.11.2011. However, it could not be conducted on the said date but it was conducted on 07.05.2012. It is, therefore, submitted that the petitioners appeared in pursuant to the Rules of 2011 which are framed for private secondary and higher secondary teachers. Hence, their result of TAT cannot be taken into account for the recruitment process undertaken by the appellants herein for appointment of secondary and higher secondary teachers in Government school in the year 2014. It is submitted that the petitioners have not appeared pursuant to the advertisement issued for TAT conducted in the year 2014. It is submitted that recruitment process is initiated for appointment of secondary and higher secondary teachers in the government school. Learned Assistant Government Pleader further submitted that when the appellants herein had prepared a combined select list for both grant-in-aid private schools and the government schools, the decision of the government was challenged by the concerned candidates by filing the petition before this Court and the Division Bench of this Court by an order dated 02.03.2015 directed the State Government to prepare a fresh select list excluding the marks of TAT 2011 for government schools. 5.1. Learned AGP thereafter contended that in MCA No.1360 of 2015 filed for review in Special Civil Page 8 of 24 HC-NIC Page 8 of 24 Created On Thu Feb 23 11:06:21 IST 2017 C/LPA/1430/2015 CAV JUDGMENT Application No.17666 of 2014 filed by the concerned parties, one of the reliefs prayed for in the said application is the same which is prayed for in the captioned petition by the original petitioners herein and though the Division Bench of this Court has rejected the MCA for review by not granting the said relief, the learned Single Judge has in the captioned petition granted the same relief in favour of the original petitioners and therefore learned Single Judge has committed an error. He, therefore, requested that the order passed by the learned Single Judge be set aside. 6. On the other hand, learned advocate Mr. Iyer appearing for the concerned respondents supported the reasoning given by the learned Single Judge and contended that TAT is a qualification and therefore it is immaterial whether such examination was conducted pursuant to the Rules of 2011 or Rules of 2012. It is submitted that petitioners appeared in TAT on 07.05.2012 i.e. after issuance of Rules of 2012 which are framed for government secondary and higher secondary teachers. The petitioners were under the belief that once they appeared in TAT held in May 2012 and when they secured good marks, it is not necessary for them to appear in TAT which was held in the year 2014. The petitioners applied pursuant to the advertisement for recruitment of secondary teachers issued by the Government on Page 9 of 24 HC-NIC Page 9 of 24 Created On Thu Feb 23 11:06:21 IST 2017 C/LPA/1430/2015 CAV JUDGMENT 17.07.2014 for appointment in government schools where the petitioners were selected. However, by giving wrong interpretation to the order dated 02.03.2015 passed by the Division Bench of this Court in Special Civil Application No.17666 of 2014 and allied matters as well as an order dated 17.06.2015 passed in Review Application No.1360 of 2015, the appellants have prepared a fresh select list and thereby names of the petitioners are wrongly deleted. 6.1. At this stage, it is submitted that issue before the Division Bench of this Court was different. In Special Civil Application No.17666 of 2014 the issue was with regard to recruitment of teachers in higher secondary schools managed by the government and therefore the said petition has nothing to do with the recruitment of teachers in secondary schools. The said petition has nothing to do with the recruitment of teachers in private/aided schools. In fact the issue before the Division Bench was whether the marks obtained by the candidates in TAT held in the year 2011 can be considered for the purpose of calculating average marks under rule 11 of the Rules of 2012 notified by the Governor on 18.04.2012 for recruitment of teachers in the government higher secondary schools? 6.2. The Division Bench of this Court, while answering the aforesaid question, held that from Page 10 of 24 HC-NIC Page 10 of 24 Created On Thu Feb 23 11:06:21 IST 2017 C/LPA/1430/2015 CAV JUDGMENT Rule 11(1), it becomes clear that it lays down the procedure for select list by the Selection Committee and that a candidate shall be allowed to appear in TAT thrice within a period of five years and the said period of five years during which candidate can appear thrice, commences from 18.04.2012 i.e. from when the Rules came into force and within these five years three examinations can be taken, then his/her result would be declared treating the average marks obtained in all the three attempts for the purpose of preparation of select list. In the said case the petitioners appeared in TAT for the first time in the year 2011 and thereafter in the year 2012 and 2013. Therefore, when the Rules of 2012 came into force on 18.04.2012, the Division Bench of this Court has held that the said Rules applied prospectively and they did not save the examination which had taken place prior to 18.04.2012. Thus, it is contended by learned advocate Mr. Iyer that essential requirement is the date of examination. In the case before the Division Bench of this Court, TAT was conducted for higher secondary teachers in 2011 i.e. prior to framing of the Rules of 2012 and therefore the marks obtained in the said examination were required to be excluded. Whereas, in the present case, the petitioners appeared in TAT conducted for secondary teachers which was held on 07.05.2012 i.e. after framing of the Rules of 2012 and therefore result of the said examination Page 11 of 24 HC-NIC Page 11 of 24 Created On Thu Feb 23 11:06:21 IST 2017 C/LPA/1430/2015 CAV JUDGMENT is required to be taken into consideration by the present appellants. Thus, in short, it is contended that the Division Bench order in the aforesaid case is wrongly interpreted by the present appellants and thereby the names of the petitioners are wrongly deleted from the revised select list. Learned Single Judge has, therefore, rightly allowed both the petitions and issued necessary directions to the appellants. Thus, when no error is committed by the learned Single Judge, these appeals be dismissed. 7. Mr. Rahul Dineshbhai Upadhyay – respondent No.26, party-in-person submitted that TAT 2014 was not limited for the government schools but it was a combined examination taken for both grantin-aid private schools as well as government schools. At this stage, it is submitted that the Board issued circular dated 04.03.2014 in which it is stated that the candidates are inquiring frequently regarding TAT-2014, as to whether the candidate who has already passed the TAT, will have to once again appear for the said examination or not? In the said circular, Board has clarified certain aspects with regard to appearing in TAT in different mediums. Party-inperson further submitted that he was selected pursuant to advertisement issued in the year 2014. However, though he is meritorious, the present appellants have deleted his name by misinterpreting the order dated 02.03.2015 passed Page 12 of 24 HC-NIC Page 12 of 24 Created On Thu Feb 23 11:06:21 IST 2017 C/LPA/1430/2015 CAV JUDGMENT by the Division Bench of this Court in Special Civil Application No.17666 of 2014 and order dated 17.06.2015 passed in Misc. Civil Application No.1360 of 2015. He, therefore, requested that when learned Single Judge has not committed any error, these appeals be dismissed. 8. Learned advocate Mr.A.R.Thacker appearing for the concerned respondents supported the submission canvassed on behalf of learned advocate Mr. Iyer and submitted that the appellants have wrongly deleted the names of the meritorious candidates from the revised select list by wrongly interpreting the order passed by the Division Bench of this Court in the aforesaid petition as well as Misc. Civil Application for review. Thus, meritorious students are deprived of their legitimate right because of wrong interpretation of the orders passed by the Division Bench of this Court in Special Civil Application No.17666 of 2014 and Misc. Civil Application No.1360 of 2015 by the appellants and therefore the learned Single Judge has given appropriate direction to the appellants. Hence, these appeals be dismissed. 9. Having considered the submissions canvassed on behalf of the learned advocates appearing for the parties and having gone through the material produced on record, following undisputed aspects emerge from record:- Page 13 of 24 HC-NIC Page 13 of 24 Created On Thu Feb 23 11:06:21 IST 2017 C/LPA/1430/2015 CAV JUDGMENT (i) that the State Government framed Rules of 2011 while exercising powers conferred under Section 35 of the Act of 1972 for selection of teachers and headmasters for registered private secondary and higher secondary schools. By the said Rules, concept of TAT was introduced. (ii) the schedule was given in the advertisement dated 17.09.2011 issued by the Board for conducting TAT for headmaster, higher secondary teachers and secondary teachers. So far as TAT for secondary teachers is concerned, it was notified to be conducted on 27.11.2011. However, in fact the said examination was conducted on 07.05.2012. (iii) in the meantime, on 18.04.2012, Rules of 2012 were framed by the Government in exercise of powers conferred under proviso to Article 309 of the Constitution of India for the teachers of Government secondary and higher secondary schools. (iv) petitioners appeared in TAT conducted on 07.05.2012 in pursuant to the Rules of 2011 which are framed for selection of teachers and headteachers in the registered private secondary and higher secondary schools. It is not in dispute that the petitioners have not appeared pursuant to the Rules of 2012. Page 14 of 24 HC-NIC Page 14 of 24 Created On Thu Feb 23 11:06:21 IST 2017 C/LPA/1430/2015 CAV JUDGMENT (v) after the Rules of 2012 came into force on 12.02.2014 common advertisement was issued for TAT to be conducted by the Board for appointment of teachers both in grant-in-aid private schools as well as Government schools. At this stage, it is required to be noted that the petitioners did not appear in TAT which was conducted on 27.07.2014 for appointment of teachers in grantin-aid and Government schools. (vi) thereafter on 17.07.2014 the appellants issued an advertisement for recruitment of teachers in secondary government schools as well as higher secondary government schools. At this stage, it is also required to be noted that petitioners appeared in TAT pursuant to the Rules of 2011 which are framed for private schools. However, they did not appear in TAT pursuant to the Rules of 2012 which are framed for government secondary and higher secondary schools. 10. Thus, keeping in mind the aforesaid undisputed facts emerged from the record, if the contention of the petitioners is examined, it is the case of the petitioners that they appeared in TAT on 07.05.2012 after the Rules of 2012 came into force on 18.04.2012 and therefore it is immaterial whether they appeared in pursuant to the Rules of 2011 or 2012 because TAT is a qualification. Page 15 of 24 HC-NIC Page 15 of 24 Created On Thu Feb 23 11:06:21 IST 2017 C/LPA/1430/2015 CAV JUDGMENT 11. Thus, a question which is required to be considered in the present appeals is, whether Rules of 2011 and Rules of 2012 operate in different field, and if the answer is yes then, whether the marks obtained by the candidates pursuant to the Rules of 2011 can be taken into consideration for giving appointment to the candidates in Government secondary and higher secondary schools or not? 12. In Special Civil Application No.17666 of 2014 and allied matter, the constitutional validity of Rules of 2012 was under challenge. While considering the said issue, the Division Bench of this Court in the order dated 02.03.2015 has specifically observed that the concerned respondents (present appellants) have committed an error in counting the TAT attempts taken by the candidates in the year 2011. The direction was given to prepare a fresh select list in accordance with Rule 11(1)(d) of the Rules of 2012. It was further held that the concerned respondents – present appellants have illegally and arbitrarily considered TAT 2011 for taking out average of the candidates. It was observed that if the candidates have appeared thrice in TAT then the mistake is required to be corrected by the concerned respondents and fresh select list is required to be prepared. The Division Bench of this Court has not gone into the validity of Rule 11(1)(d) of the Rules of 2012. Page 16 of 24 HC-NIC Page 16 of 24 Created On Thu Feb 23 11:06:21 IST 2017 C/LPA/1430/2015 CAV JUDGMENT 13. At this stage, it is required to be noted that a third party filed Misc. Civil Application No.1359 of 2015 and 1360 of 2015. The Division Bench of this Court dismissed the said review application by an order dated 17.06.2015 in which the Division Bench has observed as under: “In this review petition, learned advocate Mr. Yagnik for learned advocate Mr. Riddhesh Trivedi for the applicants has vehemently urged that the judgement rendered by this Court on 2.3.2015 in Special Civil Application No. 17666 of 2014 with Special Civil Application No. 18917 of 2014 suffers from an error apparent on the face of record as TAT (Teacher Aptitude Test) Examination of 2011 was held under Rules which were notified on 11.2.2011 and therefore that attempt has to be counted in one of the attempts which is permissible under the Rules meaning thereby in five years, three attempts are allowed and 2011 attempt would be treated as one attempt. Learned advocate Mr. Subramainam Iyer who appears for original petitioners has urged that Rules which were notified on 11.2.2011 were with regard to Teachers and Headmasters of registered private Secondary and Higher Secondary Schools and were not applicable to the Government Schools. 2011 Rules are framed under Section 35 of the Gujarat Secondary and Higher Secondary Education Act, 1972 whereas 2012 Rules which are applicable to the Government teachers are framed in exercise of powers conferred by proviso to Article 309 of the Constitution of India by the Governor of Gujarat and the Rules are known as teachers of Government Secondary and Higher Secondary Schools. Page 17 of 24 HC-NIC Page 17 of 24 Created On Thu Feb 23 11:06:21 IST 2017 C/LPA/1430/2015 CAV JUDGMENT They have come into force with effect from 18.4.2012. Both Rules are different. The source of power of framing of Rules are different. Both the Rules apply to two different class of persons, one private school teachers and other Government school teachers. Therefore, it cannot be said that the Rules supplement each other. Therefore, we do not find that any error much less an error apparent on the face of the record has been committed by this Court in deciding the writ petitions by judgement dated 2.3.2015. Accordingly, these review petitions are dismissed. Parties shall bear their own costs.” 14. If the aforesaid order is carefully seen, the original petitioners of Special Civil Application No.17666 of 2014 contended that the Rules of 2011 are framed with regard to the teachers and headmasters of registered private secondary and higher secondary schools and the said Rules are not applicable to the Government schools. It was further contended that Rules of 2011 are framed under Section 35 of the Act of 1972, whereas Rules of 2012 are applicable to the Government teachers which are framed in exercise of powers conferred by proviso to Article 309 of the Constitution of India by the Governor. The Division Bench has, therefore, held that both the Rules are different. The source of power of framing of Rules are different and both the Rules apply to two different class of persons, one private school teachers and other Government school teachers. It was, therefore, held by the Page 18 of 24 HC-NIC Page 18 of 24 Created On Thu Feb 23 11:06:21 IST 2017 C/LPA/1430/2015 CAV JUDGMENT Division Bench that it cannot be said that Rules are supplement to each other. 15. At this stage, we would like to refer to the reliefs prayed for in Misc. Civil Application (For Review) No.1360 of 2015 in Special Civil Application No.17666 of 2014, and more particularly prayer (C), which reads as under: “C. To direct the respondent State of Gujarat and other State respondent authorities to include the petitioners and other identically situated candidates who appeared in TAT in May 2012 in the select list and allow them to participate in the ongoing recruitment process for the post of teacher in secondary and/or higher secondary school;” 16. At this stage, we would like to refer to the reliefs prayed for by the original petitioners in Special Civil Application No.4855 of 2015, and more particularly prayer (B), which reads as under: “(B) That the Hon'ble Court be pleased to issue a writ of Mandamus or any other appropriate writ or order holding that the impugned action of the authorities of not considering the marks of the TAT held in the year 2012 for the purpose of preparing select list of the candidates for recruitment of teachers in government secondary schools is absolutely arbitrary, discriminatory, violative of Article 14 and 16 of the Constitution of India and consequently, direct the respondent Page 19 of 24 HC-NIC Page 19 of 24 Created On Thu Feb 23 11:06:21 IST 2017 C/LPA/1430/2015 CAV JUDGMENT authorities to prepare the select list of the candidates after considering the marks obtained by them in the TAT held in May- 2012 and make recruitment of teachers in the government secondary schools accordingly.” 17. Thus, if we examine the relief sought for in the present proceedings, it is prayed by the original petitioners that the respondent authorities be directed to prepare the select list of the candidates after considering the marks obtained by them in TAT held in May 2012 and make recruitment of teachers in Government schools accordingly. However, though similar relief was prayed by the concerned candidates in M.C.A. No.1360 of 2015, said prayer was not granted by the Division Bench. However, in the present case, the learned Single Judge has granted the same prayer which was not entertained by the Division Bench. 18. It is not in dispute that the petitioners appeared in TAT on 07.05.2012. The said examination was conducted in pursuant to the Rules of 2011, which are framed for the Teachers and Head Masters of registered private secondary and higher secondary schools. It is to be noted that in pursuant to the Rules of 2011, TAT for secondary teachers was notified to be conducted on 27.11.2011. However, for some reasons, it was not conducted on the said date and postponed and in fact it was conducted on 07.05.2012. It is not Page 20 of 24 HC-NIC Page 20 of 24 Created On Thu Feb 23 11:06:21 IST 2017 C/LPA/1430/2015 CAV JUDGMENT in dispute that petitioners have not appeared in TAT conducted pursuant to the Rules of 2012, which are framed for teachers of Government secondary and higher secondary schools. Thus, the petitioners though appeared on 07.05.2012 in TAT but the same was conducted as per the Rules of 2011 i.e. for private schools. The contention of the petitioners that TAT is merely qualification and it is immaterial whether the same is taken in pursuant to Rules of 2011 or Rules of 2012. The said contention is misconceived because the order dated 02.03.2015 passed by the Division Bench of this Court in Special Civil Application No.17666 of 2014 as well as order dated 17.06.2015 passed in Misc. Civil Application No.1360 of 2015 have attained finality. The Division Bench has specifically observed that, “The petitioners appeared in the TAT for the first time in the year 2011, thereafter in 2012 and then in 2013. Since the Rules came into force on 18.04.2012 and these Rules applied prospectively, they do not save the examination which had taken prior to 18.04.2012, nor do they provide for counting for the purpose of Section 11(1)(d) of the Rules. Therefore, in our opinion, the respondents have committed an error in counting the TAT attempts taken by the candidates in the year 2011.” 19. In view of the above observations of the Division Bench, counting the TAT attempt taken by the candidates in the year 2012 in pursuant to Page 21 of 24 HC-NIC Page 21 of 24 Created On Thu Feb 23 11:06:21 IST 2017 C/LPA/1430/2015 CAV JUDGMENT the Rules of 2011 cannot be taken into consideration. Therefore, the contention of the petitioners that TAT is merely a qualification and therefore their result of TAT conducted in pursuant to the Rules of 2011 is required to be taken into consideration, cannot be accepted in light of the aforesaid observations since the Division Bench of this Court has not counted the TAT attempt taken in pursuant to 2011 Rules. If the TAT attempts as per Rules 2011 and Rules of 2012 are same (as per the contention of the petitioners that TAT is merely a qualification) then the Division Bench would have counted the attempt of TAT conducted in pursuant to the Rules of 2011 also. 20. Another contention of learned advocate appearing for the original petitioners is that the said case was for higher secondary teachers, whereas, in the present case, the dispute is with regard to the secondary teachers and therefore the said orders of Division Bench are not applicable. However, the said contention is also misconceived because the issue involved in the said petition was with regard to counting of the the TAT attempt conducted in the year 2011 i.e. prior to coming into force the Rules of 2012, which were notified on 18.04.2012. Therefore, it is immaterial whether the dispute is with regard to higher secondary school teachers or secondary school teachers and hence the said contention is Page 22 of 24 HC-NIC Page 22 of 24 Created On Thu Feb 23 11:06:21 IST 2017 C/LPA/1430/2015 CAV JUDGMENT not accepted. 21. Lastly, we are also of the opinion that Rules of 2011 and Rules of 2012 operate in different field. Rules of 2011 are framed for private secondary and higher secondary school teachers and the said Rules are framed in exercise of powers conferred under Section 35 of the Act of 1972, whereas Rules of 2012 are for the teachers of Government secondary and higher secondary schools which are framed in exercise of powers conferred under proviso to Article 309 of the Constitution of India. 22. In view of the aforesaid discussions, we are of the view that the petitioners appeared in TAT pursuant to the Rules of 2011 which are framed for private secondary and higher secondary schools and though they appeared in the examination held on 07.05.2012, they are not entitled to apply in pursuant to the advertisement issued for appointment of secondary and higher secondary teachers in government schools because Rules of 2011 and Rules of 2012 operate in different field. We are of the view that when the Division Bench of this Court in Misc. Civil Application No.1360 of 2015 has not granted the similar prayer which are sought for in the present proceedings, the learned Single Judge has committed an error while granting the same relief in the present proceedings. Page 23 of 24 HC-NIC Page 23 of 24 Created On Thu Feb 23 11:06:21 IST 2017 C/LPA/1430/2015 CAV JUDGMENT 23. In view of the aforesaid discussions, the appeals are allowed. The impugned common CAV judgment dated 13.08.2015 passed by the learned Single Judge in Special Civil Application No.4855 of 2015 and allied matter is hereby set aside. (R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Jani Page 24 of 24 HC-NIC Page 24 of 24 Created On Thu Feb 23 11:06:21 IST 2017
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