Gujarat High Court
Madhvi Devendrabhai Shukla vs State Of Gujarat on 11 February, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/LPA/182/2020 CAV JUDGMENT DATED: 11/02/2025
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Reserved On : 04/02/2025
Pronounced On : 11/02/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 182 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 5173 of 2010
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 182 of 2020
With
R/LETTERS PATENT APPEAL NO. 322 of 2020
In
R/SPECIAL CIVIL APPLICATION NO. 14457 of 2010
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020 In R/LETTERS PATENT
APPEAL NO. 322 of 2020
In
R/SPECIAL CIVIL APPLICATION NO. 14457 of 2010
With
R/LETTERS PATENT APPEAL NO. 488 of 2020
In
R/SPECIAL CIVIL APPLICATION NO. 5174 of 2010
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2021 In
R/LETTERS PATENT APPEAL NO. 488 of 2020
In
R/SPECIAL CIVIL APPLICATION NO. 5174 of 2010
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 2 of 2020 In
R/LETTERS PATENT APPEAL NO. 488 of 2020
In
R/SPECIAL CIVIL APPLICATION NO. 5174 of 2010
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020 In R/LETTERS PATENT
APPEAL NO. 488 of 2020
In
R/SPECIAL CIVIL APPLICATION NO. 5174 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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NEUTRAL CITATION
C/LPA/182/2020 CAV JUDGMENT DATED: 11/02/2025
undefined
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
==========================================================
Approved for Reporting Yes No
==========================================================
MADHVI DEVENDRABHAI SHUKLA
Versus
STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MR DIPAN DESAI(2481) for the Appellant(s) No. 1 in LPA No. 182 of 2020
with CA No.1 of 2020
MR. DWIJEN JOSHI, for the Appellant(s) No. 1 in LPA No. 322 of 2020 with
CA 1 of 2020
MR. K.B.PUJARA, for the Appellant(s) No. 1 in LPA No. 488 of 2020 with CA
Nos. 1 of 2020, 1 of 2021 and CA No. 2 of 2020.
MS. MEGHA CHITALIA, ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
==========================================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV) 1 These appeals arise out of a common judgement rendered by the learned Single Judge on 26.11.2019, by which, the petitions filed by the appellants for a prayer that the promotions from the cadre of Junior Lecturer to the cadre of Senior Lecturer on the basis of branches of the cadre be quashed and set aside and directions be Page 2 of 21 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:58:42 IST 2025 NEUTRAL CITATION C/LPA/182/2020 CAV JUDGMENT DATED: 11/02/2025 undefined issued to operate and maintain a common seniority list of Junior Lecturers irrespective of the branches in which they were working for the purposes of promotion to the post of Senior Lecturer. The learned Single Judge by the judgement, dismissed the petitions holding that the recruitment rules in question for the purposes of promotion stipulated that the appointment to the post was to be made by promotion on the basis of educational qualifications and experience which included the qualifications of having worked in the seven branches that was set out in the rules.
1.1 The learned Single Judge held that minimum educational qualification as well as experience prescribed for each of the Junior Lecturers working in their branches was necessary for being eligible for promotion and the seniority assigned to the lecturers in their respective branches should therefore be considered as appropriate. 2 Mr.K.B.Pujara, learned advocate appearing for the Page 3 of 21 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:58:42 IST 2025 NEUTRAL CITATION C/LPA/182/2020 CAV JUDGMENT DATED: 11/02/2025 undefined appellant in Letters Patent Appeal No. 488 of 2020, made the following submissions:
2.1 That the Recruitment Rules for the post of Lecturers in the Gujarat Education Services (District Institute of Education & Training) Recruitment Rules, 1990, provided for appointment by direct selection. Referring to the appointment orders and the posting orders of the appellants, Mr.Pujara, learned Counsel, would submit that in the appointment and the posting orders, there was no mention of any branch to which the appellants were to be appointed or posted, and therefore, the interpretation by the respondents that the seniority and experience of working in a branch is the relevant criteria is misconceived.
2.2 Inviting our attention to the Recruitment Rules, namely, the Rules for Appointment to the Post of Senior Lecturer, Mr.Pujara, learned Counsel, would submit that appointment to the post of Senior Lecturers was either by Page 4 of 21 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:58:42 IST 2025 NEUTRAL CITATION C/LPA/182/2020 CAV JUDGMENT DATED: 11/02/2025 undefined direct selection or by promotion. As per the criteria for promotion, the person was eligible for such promotion if the person was having proved merit and efficiency from amongst the persons who had worked for not less than seven years in the cadre of Lecturer Class-III. Mr.Pujara, would therefore submit that there was no criteria for considering work experience in a particular branch for the purposes of promotion.
2.3 Inviting our attention to the impugned communication dated 09.04.2010, Mr.Pujara, learned counsel, would submit that in the respective branches that was shown in the impugned communication, namely, PSTE Branch, W.E Branch, CMDI Branch and IFCI Branch etc., incumbents much junior to the appellants i.e. whose dates of initial appointments were either of 1995 i.e. similar to the appellant or post 1995 i.e. of the year 1997-98, were considered for promotion. Mr.Pujara, learned counsel, would submit that, therefore, there was no reason why persons junior to the appellant be Page 5 of 21 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:58:42 IST 2025 NEUTRAL CITATION C/LPA/182/2020 CAV JUDGMENT DATED: 11/02/2025 undefined considered for promotion.
2.4 Mr.Pujara, learned Counsel, therefore also invited our attention to the representations made by the appellants to support his submission that the appellant concerned, after being appointed on 05.10.1995 as a Junior Lecturer, had worked in various branches, and therefore, the branch-wise seniority orders could not have been the criteria for assigning seniority and inturn be considered for promotion. He would submit that, therefore, there was no question on any branch-wise seniority. Mr.Pujara, learned Counsel, would submit that, before the learned Single Judge, the appellant-petitioner had relied on a decision of the Hon'ble Supreme Court in the case of K.Kappusamy Vs. State of Tamil Nadu, reported in 1998 (8) SCC 469, to support his submission that when there are statutory rules providing for cadre-
wise seniority and which did not have a criteria for branch-wise seniority, such rules cannot be overridden by executive orders.
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NEUTRAL CITATION C/LPA/182/2020 CAV JUDGMENT DATED: 11/02/2025 undefined 2.5 Mr.Pujara, learned Counsel, in support of his submissions relied upon a decision of the Guwahati High Court annexed to the memo of appeal rendered by the Guwahati High Court in W.P (C) No. 3572 of 2014 dated 15.12.2014. He would submit that the learned Single Judge committed an error in holding that since the rules are different than the one governing the case on hand, the judgement would not apply. Mr.Pujara, relying on a decision of the Hon'ble Supreme Court in the case of Neon Laboratories Limited Vs. Medical Technologies & Ors., reported in 2016 (2) SCC 672, would submit that the Hon'ble Supreme Court has held that every High Court must give due deference to the enunciation of law made by another High Court even though it is free to charter a divergent direction. 2.6 Extensively reading the decision of the Guwahati High Court, Mr.Pujara, learned Counsel, would submit that though the situation was converse in the writ petition before the Guwahati High Court, inasmuch as, the Page 7 of 21 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:58:42 IST 2025 NEUTRAL CITATION C/LPA/182/2020 CAV JUDGMENT DATED: 11/02/2025 undefined contention of the petitioners was that the seniority should be branch-wise, after considering the submissions, the High Court upheld the State's objection and held that the Seniority List has to be prepared cadre-wise. He would submit that the Guwahati High Court held that since D.I.E.T Service Rules did not provide for branch-wise seniority, the seniority had to be governed by cadre-wise seniority. The Guwahati High Court, in fact, held that branch-wise seniority cannot be the basis of seniority. The judgement, therefore, was clearly applicable to the petitioner-appellants.
2.7 Inviting our attention to the National Education Policy of which an extract was shown to us through the additional affidavit filed in the appeal, Mr.Pujara, learned Counsel, by relying on para 2.8 of the Policy, would submit that as per the Policy, particularly 2.8 thereof, it was clearly stipulated that though a branch-wise organizational structure was recommended, the branch- wise structure was made purely for practical Page 8 of 21 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:58:42 IST 2025 NEUTRAL CITATION C/LPA/182/2020 CAV JUDGMENT DATED: 11/02/2025 undefined convenience. He would submit that since the National Education Policy is equally applicable pan-India, the contention of the State that the appointments were made branch-wise, and therefore, the seniority of the appellants would be governed accordingly, is misconceived. 2.8 Mr.Pujara, learned Counsel, would invite our attention to the affidavit-in-rejoinder filed in the appeal to contend and bring to our notice certain important facts which are as under:
(a) The appointment of the appellants in the year 1995 did not envisage distribution of posts into different branches.
(b) That there was no branch-wise sanction of posts of Lecturers.
(c) The interview call letter dated 05.06.1995 was only for the post of lecturer and not for any particular branch.
(d) The appointment was made in the cadre of lecturer and not in any particular branch. Page 9 of 21 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:58:42 IST 2025
NEUTRAL CITATION C/LPA/182/2020 CAV JUDGMENT DATED: 11/02/2025 undefined
(e) The joining report also was in the post and not in particular branch.
(f) The transfer orders cum relieving orders were also as lecturer and not as lecturer of any other branch.
(g) The lecturers were to work in different branches and not as per choice.
(h) Departmental examination held by the State Examination Board was common and not branch- wise.
(I) The promotion from the post of Lecturer to the post of Senior Lecturer did not provide for branch- wise departmental examination.
2.9 Mr.Pujara, learned Counsel, would therefore submit that the criteria or yardsticks would clearly indicate that for the purposes of considering the case of the appellants for promotion on the basis of branch-wise seniority and not a common cadre-wise seniority was misconceived and the learned Single Judge ought not to have dismissed the Page 10 of 21 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:58:42 IST 2025 NEUTRAL CITATION C/LPA/182/2020 CAV JUDGMENT DATED: 11/02/2025 undefined petitions only on the ground that the appellants had accepted the final seniority branch-wise in the year 2002, when in fact, it was only in the year 2017, that the transfer orders were issued branch-wise. 2.10 On the submission of the respondent that the appellants ought to have joined the selected candidates as parties, reliance was placed on para 23 of the decision of the Hon'ble Supreme Court in the case of Post Graduate Institute of Medical Education & Research & Anr Vs. A.P.Wasan & Ors., reported in (2003) 5 SCC 321, to submit that when the challenge is on the basis of a principle, the affected party need not be joined as a party respondent. He would, therefore, submit that the learned Single Judge committed an error in dismissing the petitions when in fact, the petitioners were entitled to the reliefs prayed for as their case was squarely covered by the decision of the Guwahati High Court on which reliance was placed by the appellants. Page 11 of 21 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:58:42 IST 2025
NEUTRAL CITATION C/LPA/182/2020 CAV JUDGMENT DATED: 11/02/2025 undefined 3 Ms.Megha Chitalia, learned Assistant Government Pleader appearing for the State relied upon the affidavit- in-reply filed before the learned Single Judge. She, in substance, would reiterate the submissions made by her counter part before the learned Single Judge. 4 Perusal of the order of the learned Single Judge would indicate that it was the stand of the State before the learned Single Judge that in light of the provisional list prepared on 07.02.2002, which became final on 04.05.2002, since the appellants did not lodge any objection, the Seniority List had become final and it was only after so many years that the appellants had come forward to challenge the list.
4.1 The stand of the State further was that though the appointment orders may not have reflected the branch- wise appointments, what is evident from reading the rules is that there were seven branches which required separate nature of duties and qualifications which were Page 12 of 21 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:58:42 IST 2025 NEUTRAL CITATION C/LPA/182/2020 CAV JUDGMENT DATED: 11/02/2025 undefined prescribed in the recruitment rules. Reliance was placed on the annexure to the recruitment rules of Senior Lecturers in support of their submission. 5 Having heard the learned advocates appearing for the respective parties, the controversy that needs to be appreciated is as to whether the seniority in the cadre of Junior Lecturers has to be maintained on the basis of "branch-wise" position. The recruitment rules are on record, both of "Junior Lecturer" and "Senior Lecturer". The rule position has to be considered in light of the submission made by the learned advocate Shri K.B.Pujara while bringing out certain important facts as set out above in Clauses A to I. Merely because the advertisement, nor the sanctioned establishment, nor the appointment orders suggest a branch-wise classification as submitted by him, what reading of the rules would indicate is that for the purposes of promotion to the post of Senior Lecturer, a person apart from being of proved merit and efficiency, has to possess work experience of Page 13 of 21 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:58:42 IST 2025 NEUTRAL CITATION C/LPA/182/2020 CAV JUDGMENT DATED: 11/02/2025 undefined not less than seven years in the cadre of Lecturer and also possess educational qualifications as prescribed in Clauses 2(b) & 2(c) of Rule 4.
5.1 With the rules, a Schedule has been annexed which is a part of the rule where different minimum educational qualifications and experience branch-wise has been set out. In other words, when reading of rules is done in entirety, it is evident that for each class, different minimum educational qualifications are prescribed along with requisite experience. In other words, for considering candidates for promotion, their branch and the commensurate requisite qualification mentioned against the branch has to be considered for the purposes of promotion to the post of Senior Lecturer. 5.2 The learned Single Judge, in our opinion, rightly so has therefore considered this while interpreting the rules. Paragraphs 9 to 12 and 14 of the decision, read as under:
" 9. At this stage, it would be apposite to incorporate relevant rules governing the promotion to the post of Senior Lecturer.
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NEUTRAL CITATION C/LPA/182/2020 CAV JUDGMENT DATED: 11/02/2025 undefined "2.appointment to the post of Senior Lecturer in Gujarat Education Service, ClassII shall be made either
(a) by promotion of a person of proved merit and efficiency from amongst the persons who
(i)have worked for not less than seven years in the cadre or Lecturer, ClassIII under District Institute of Education and Training and
(ii)have passed the prescribed departmental examination and
(iii)possess the educational qualification as prescribed in clasues (b) and (c) of rules
(b)XXX XXX XXX
(c)XXX XXX XXX
3.XXX XXX XXX
4.To be eligible for appointment by direct selection to the post mentioned in rule 2, a candidate shall
(a)not be more than 40 years of age;
(b)possess educational qualification and experience as prescribed in Annexure appended to these rules;
(c)Possess adequate knowledge of Gujarati and Hindu;"
9.1 The aforenoted rules stipulate that the appointment to the post of Senior Lecturer in Gujarat Education Service (ClassII) is to be made by promotion of person of proved merit and efficiency from amongst the person, who has Page 15 of 21 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:58:42 IST 2025 NEUTRAL CITATION C/LPA/182/2020 CAV JUDGMENT DATED: 11/02/2025 undefined worked for not less than seven (7) years in the cadre or Lecturer, ClassIII under the District Institute of Education and Training (DIET). SubRule
(iii) of Rule 2 mandatesthat the candidate must possess the educational qualification as prescribed under Clauses (b) and (c) of Rule 4.
SubRule (b) of Rule 4 mentions that candidate must possess educational qualification and experience as prescribed in Annexure appended to Rule 4. Thus, provision of Rule 2(a)(i) cannot be read in isolation, but has to read in conjunction with Rule 4(b) and Annexure appended to the rules. 9.2 Annexure appended to Rule 4 stipulates seven (7) branches i.e.
i) PreService Teacher Education
ii) Inservice Programme and Extension Services
iii) Curriculum and Evaluation
iv) Educational Technology
v) Planning and Management
vi) Work Experience
10. The aforesaid rules are further substituted by the "Senior Lecturer" in Gujarat Education Service (ClassII) at DIET (amended) Rules 2008, wherein seven (7) branches are prescribed over and above aforesaid six (6) branches and District Resources Unit (DRU) branch is added. A glance of the aforesaid branches would reveal that for each class different minimum educational qualifications are prescribed along with requisite experience. Such qualifications along with experience are required to be considered for the promotion for the post of Senior Lecturer. Thus, the feeder cadre to the promotional post of Senior Lecturer prescribe different educational qualifications and experience. Hence, the seniority of Junior Lecturers of different branches having different qualifications and experience cannot be consolidated in one Page 16 of 21 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:58:42 IST 2025 NEUTRAL CITATION C/LPA/182/2020 CAV JUDGMENT DATED: 11/02/2025 undefined seniority list.
11. The candidates, who are serving in the specified branches, have to possess requisite qualification mentioned therein for the purpose of promotion to the post of Senior Lecturer. Accordingly in order to see that no anomalous situation is created, the GSERT, after due deliberation in the meeting held on 12.11.2001, decided to assign the seniority to the Junior Lecturers as per the respective branches, in which they were appointed.
12. Thus, looking to the diverse minimum educational qualification as well as experience prescribed for each of the Junior Lecturer working in their respective branches, no illegality and infirmity can be said to have been committed by the GSERT, by assigning the seniority to the Junior Lecturers as per their respective branches. In view of the aforesaid decision held by the governing body, the seniority list was prepared in the year of 2002, after inviting objection from the concerned employees. After considering such objections, all the petitioners were assigned the seniority and they have accepted the same. Thus, after accepting the decision of the governing body determining their seniority as per their branches, the petitioner cannot take volteface, after passage of eight(8) years that they are required to be promoted by considering their seniority as "cadre-wise" and not "branchwise".
XXX XXX XXX
14. Having regard to the fact that since the statutory rules more particularly, Annexure appended to Rule 4 of the Recruitment Rules of 1992 provide for various branches and also different minimum educational qualification as well as Page 17 of 21 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:58:42 IST 2025 NEUTRAL CITATION C/LPA/182/2020 CAV JUDGMENT DATED: 11/02/2025 undefined experience required for the purpose of promotion to the post of Senior Lecturer, the GSERT in its wisdom has precisely held that there should be separate seniority "branchwise" as further promotion would create anomalous situation to all the Junior Lecturers of all branch since they possess different qualification as well as experience. Thus, this court does not find that the decision of the GSERT in conferring seniority and promotion of the Junior Lecturers is tainted with any arbitrariness or illegality." 5.3 It is, therefore, clear on reading the rules that the contention of learned advocate Shri Pujara based on the parameters as argued, cannot be accepted. Even while filling the application form pursuant to the advertisement, they had to specify the branch in which they were applying. A specimen application form has been annexed by the State in the reply filed before the learned Single Judge.
5.4 The other ground that has weighed with the learned Single Judge is the aspect of delay. Once the final seniority list was published on 04.05.2002, where the seniority was shown to have been maintained "branch- wise", the petitioners did not approach the Court for a Page 18 of 21 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:58:42 IST 2025 NEUTRAL CITATION C/LPA/182/2020 CAV JUDGMENT DATED: 11/02/2025 undefined period of eight years. The submission of the learned Counsel for the appellant Shri Pujara that it was only for the first time when the hearing took place before this Court that the Minutes of the Meeting held on 12.11.2001 and the decision taken by the Sub-Committee dated 17.07.2001 were produced, did the appellants come to know of the decision, cannot help the appellants to overcome the aspect of delay. One cannot lose sight of the fact that once the Seniority List was provisionally published to which the appellants did not object and subsequently the same was finalized in the year 2002, the appellants did not raise any grievance nor challenged the seniority list. This, therefore, would amount to accepting the principle of branch-wise seniority by the appellants. 5.5 With regard to the decision of the Guwahati High Court, we cannot dispute the legal proposition that enunciation of law by other High Courts has to be respected. However, in the case on hand, the learned Single Judge opined that the judgement of the Guwahati Page 19 of 21 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:58:42 IST 2025 NEUTRAL CITATION C/LPA/182/2020 CAV JUDGMENT DATED: 11/02/2025 undefined High Court did not apply to the facts of the case. Before the Guwahati High Court, the controversy was converse. The private individuals contended that the seniority was branch-wise, however, the High Court accepted the stand of the State which defended the seniority when seniority principle being cadre seniority and not branch-wise seniority. Though, as per the National Education Policy, branch-wise classification could be for practical convenience, but when the rules are read which are statutory in nature, the contention of Shri Pujara, learned counsel, that such principle governing seniority cannot bind the appellants is misconceived. 5.6 Moreover, before the Guwahati High Court, though the principle of seniority being "maintained cadre-wise"
was accepted, the judgement is rendered without discussion of the rules and the relevant clauses thereof like the one discussed by the learned Single Judge in the petitions. This is one more reason why if the learned Single Judge has found the judgement as not applicable, Page 20 of 21 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:58:42 IST 2025 NEUTRAL CITATION C/LPA/182/2020 CAV JUDGMENT DATED: 11/02/2025 undefined we are not convinced to take a view other than the one taken by the learned Single Judge. We are, therefore, of the opinion that the learned Single Judge committed no error in rejecting the petitions.
6 For the aforesaid reasons, all the appeals are dismissed. Connected civil applications stands disposed of, accordingly. Interim relief, if any, stands vacated.
(BIREN VAISHNAV, J) (D. M. DESAI,J) BIMAL Page 21 of 21 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 22:58:42 IST 2025