Gujarat High Court
Dahyabhai V Sendhav vs State Of Gujarat on 23 July, 2025
NEUTRAL CITATION
C/SCA/3336/2010 JUDGMENT DATED: 23/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3336 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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Approved for Reporting Yes No
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DAHYABHAI V SENDHAV
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR MANAN MAHETA(6037) for the Petitioner(s) No. 1
MR ABHIJIT RATHOD FOR MR MEHUL H RATHOD(701) for the
Petitioner(s) No. 1
MS POOJA ASHAR, AGP for the Respondent(s) No. 1,2
RULE SERVED BY DS for the Respondent(s) No. 3,4
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 23/07/2025
ORAL JUDGMENT
1. This petition is filed with the following players:
"9(A) Your Lordships may be pleased to issue a writ of certiorari or any other rate, order or direction in the nature of search error rate for quashing and setting aside the communication dated 19.10.2006 with all consequential effects in favour of the petitioner and further be pleased to direct the respondent authorities to grant approval to promote petitioner as an Associate Page 1 of 11 Uploaded by U. SRILATHA(HC00185) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:18:30 IST 2025 NEUTRAL CITATION C/SCA/3336/2010 JUDGMENT DATED: 23/07/2025 undefined lecturer in the respondent institute with effect from 1994-95 with all benefits.
(B) Pending the hearing and final disposal of the present petition, YOUR LORDSHIPS may be pleased to direct the respondent authorities to take decision forthwith on the proposal of the institution and subject to outcome of the petition, the petitioner be promoted as Assistant Lecturer.
(C) xxxx"
2. The facts emerging from the memo of the petition are such that the petitioner was appointed as Craft teacher in graduate. Basic Training College, Lok Bharti Sanosara in the year 1978. On 10.6.1994, one Chandraprabhaben Lecturer has retired and hence the post of lecturer has fallen vacant. Therefore, as the petitioner was possessing necessary qualifications for the post of lecturer, the respondent Graduate Basic Training College allotted teaching work of an Associate Lecturer in the subject of Gujarati and Social Studies to the petitioner since 1994 and the petitioner is discharging duties as Associate Lecturer. Even the State Examination Board and Bhavnagar University also appointed the petitioner as paper setter/examiner for the examination of GBTC. On 30.8.1994, the Director of Higher Education Page 2 of 11 Uploaded by U. SRILATHA(HC00185) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:18:30 IST 2025 NEUTRAL CITATION C/SCA/3336/2010 JUDGMENT DATED: 23/07/2025 undefined granted NOC to the respondent Institute to fill up the vacant post of Assistant Lecturer from the category of Scheduled Tribe candidate. The respondent institute issued advertisements in dailies four times on different dates but the candidate for from ST category was not found. In April 1997, the respondent Institute submitted a proposal to the respondent no.1 permitting to convert NOC for general candidate as Scheduled Tribe candidate was not found. Simultaneously, a request was also made to grant approval to fill up the post by promoting the petitioner as the petitioner was performing the duty as Associate Lecturer since long and possessing necessary qualification. Though the petitioner made a representation to the Commissioner of Higher Education, Gujarat State on 10.10.1997 for promoting him to the post of Associate Lecturer. No decision was taken on the same. Therefore, the petitioner filed an application on 17.9.1998 being No.108/98 before the Gujarat Affiliated College Service Tribunal and prayed for granting promotion to him to the post of Associate Lecturer and other reliefs. The Learner Tribunal on 3.11.2004 disposed of the application by directing the Institute and the Commissioner to consider the claim of the petitioner before granting NOC. On 5.1.2005, the Managing Committee of the Institute vide resolution no.5 resolved to forward the proposal of promoting the petitioner as Associate Lecturer and accordingly, the proposal was Page 3 of 11 Uploaded by U. SRILATHA(HC00185) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:18:30 IST 2025 NEUTRAL CITATION C/SCA/3336/2010 JUDGMENT DATED: 23/07/2025 undefined submitted to the respondent on 17.1.2005 but no decision was taken at the relevant time in the case of a petitioner. On 19.5.2005, the state government granted permission to the respondent Institute to fill up the post of Head Clerk and Senior Head Clerk only by way of through promotion. Therefore, the Institute submitted a proposal to the Commissioner of Higher Education and the State Government on 6.11.2005 requesting to grant permission to promote the petitioner as Associate Lecturer based on the similar approval in cases of Head Clerk and Senior Clerk. The said proposal was opened by the Joint Director of Education on 19.12.2005 and the proposal was forwarded to the State Government for filling up the post of Associate Lecturer by promoting the petitioner. However, the state government rejected the proposal of promoting the petitioner on the ground that in the recruitment rules of GBTC institutions, there are no provisions for filling up the post of teaching/non-teaching staff by way of promotion. The said decision was taken on 19.10.2006 and the said letter was communicated to the institution on 7.2.2007. In turn, the petitioner was informed somewhere in June 2009. On 25.8.2009, the following documents were asked for from the Higher Education Commissioner of Higher Education under RTI 2005. The recruitment and promotion rules pertaining to teaching and non teaching staff of GBTC. The promotional rules of the Page 4 of 11 Uploaded by U. SRILATHA(HC00185) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:18:30 IST 2025 NEUTRAL CITATION C/SCA/3336/2010 JUDGMENT DATED: 23/07/2025 undefined teaching and technical staff. In response to the same, the Office of Higher Education furnished the information under RTI on 23.9.2009 that there are no rules for recruiting and promoting the staff of GBTC and the government resolutions pertaining to the subject were furnished. Hence, this petition is filed.
3. Heard learned advocates for the parties. 3.1 Learned advocate for the petitioner submitted that since 1994, the petitioner was performing the duty of an Associate Lecturer and the State Examination Board and Bhavnagar University have appointed the petitioner as paper setter for Gujarati and social studies subjects for the examination of university and State Board examination. Thus, indirectly, the respondent authorities approved the work performed by the petitioner but by advancing reasons of no provisions in the Rules, the claim of the petitioner is being denied. That for the post of an Associate Lecturer, the requisite qualification is M.A. Bed. and the petitioner is possessing said qualification and since 1994 performing the duties as an Associate Lecturer as well as setting the papers for the university students under the order of State Examination Board. That till the date of the petition, the Page 5 of 11 Uploaded by U. SRILATHA(HC00185) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:18:30 IST 2025 NEUTRAL CITATION C/SCA/3336/2010 JUDGMENT DATED: 23/07/2025 undefined impugned post of an Associate Lecturer is vacant since 1994 and though the respondent Institute needs an Associate Professor badly, and the present petitioner is performing an Associate Lecturer's duties since 1994, the impugned communication is liable to be quashed and set aside and the petitioner be given promotion to the post of an Associate Lecturer. He submitted that at the time of the petition, there were only three-year service left in the superannuation of the petitioner and therefore also the petitioner may be given the post of an Associate Lecturer. However, the claim of the petitioner was rejected on the ground that as per the recruitment and promotional rules for teaching/non-teaching staff of GBTC institutes, there are no provisions for promotion. It is submitted that the fact is totally incorrect that there are no recruitment rules either for the teaching or non teaching staff of GBTC institutes are framed. Further, the petitioner is denied the equal treatment as the respondent authority vide order dated 19.10.2005 granted permission to the respondent Institute to appoint head clerk and Senior Clerk by promotion only and the similar benefit is being denied to the petitioner. It is further submitted that the issue is not directly dealt with and issue about compliance or direction of learned Tribunal is also not dealt with nor it was clarified that before rejecting proposal, no process has been undertaken as directed by the learned Page 6 of 11 Uploaded by U. SRILATHA(HC00185) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:18:30 IST 2025 NEUTRAL CITATION C/SCA/3336/2010 JUDGMENT DATED: 23/07/2025 undefined Tribunal vide order dated 3.11.2004. It is submitted that though it was directed by this Court vide order dated 4.3.2022 as to whether any particular rules are framed and any resolution in specific are available or not with regard to promotion to a teaching staff, the said issue is not clarified nor any rules with regard to promotion of teaching staff were produced on record by the respondents because it is clear that there are no rules pertaining to the same. Therefore this petition may be allowed as there was gross inaction on the part of the respondents authority.
3.2 Per contra, learned advocates for the respondents, by referring to the affidavit in reply, have submitted that the following factors should be taken into consideration for appreciating the grievance raised in the petition. The respondent no.4 herein is grant-in-aid Institute which is established for running various courses in basic training. It is submitted that since the Institute such as respondent no.4 Institute are established and run for a particular purpose imparting basic training college, all expenses are borne by State in form of grant. The respondent no.4 Institute is being provided grant and the establishment of all staff is also sanctioned inn sanctioned establishment. There are various posts, one of which is of Craft teacher. The present petitioner Page 7 of 11 Uploaded by U. SRILATHA(HC00185) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:18:30 IST 2025 NEUTRAL CITATION C/SCA/3336/2010 JUDGMENT DATED: 23/07/2025 undefined is appointed as Craft teacher in respondent no.4 Institute with effect from 1978. The respondent no.4 Institute applied for no objection certificate from Office of the respondent for recruiting the lecturer as per the sanctioned establishment. The Office of the respondent by letter dated 1994 granted no objection certificate to the respondent no.4 Institute for filling up of post of lecturer. And it is clear that the No Objections certificate is granted for filling up of the post of Associate Lecturer by reserved category candidate depending upon the roster point. Pursuant to the same, the recruitment process was undertaken and the respondent no.4 Institute could not find suitable candidate and that is how the post remained vacant. The respondent no.4 Institute received an unprecedented proposal from the petitioner that since the present petitioner is possessing requisite qualification for appointment to the post of Lecturer, the Institute may be permitted to promote him to the post of Lecturer. However, as there is no provision for filling up of the post of lecturer by promotion and the post of lecturer is required to be filled by direct selection, the same was not acceded to. Thereafter, as the petitioner approached the tribunal praying for grant of promotion to the post of Associate Lecturer which was disposed of by an order dated 3.11.2004 directing the office of the respondents to consider the claim of the petitioner for promoting to the post of Associate Lecturer. It is submitted Page 8 of 11 Uploaded by U. SRILATHA(HC00185) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:18:30 IST 2025 NEUTRAL CITATION C/SCA/3336/2010 JUDGMENT DATED: 23/07/2025 undefined that pursuant to the same and in due compliance of order passed by the Tribunal, the proposal of the Institute for promoting the petitioner to the post of Associate Lecturer was rejected after careful considering all relevant aspects. The main fact was that there is no provision for appointment by way of promotion. It is submitted that even the petitioner has not produced any document to substitute his claim that the post of the Associate Lecturer can be filled in by way of promotion and therefore the order impugned is just and proper.
3.3 In pursuance of the order dated 4.3.22 passed by this Court, the respondents filed a further affidavit- in-reply stating that the said post of Associate Lecturer was sanctioned with few conditions whereby the process of filling up the said post is already determined by the sanctioning authority. It is submitted that while granting a sanctioned post for requirement of an Associate Lecturer in the said Institute, NOC dated 31.8.1994 was granted whereby the said post was clearly created for Scheduled Tribes category candidates. Pursuant to the direction given by the Tribunal, the petitioner herein was called upon a given opportunity of hearing and thereafter the order was passed by the respondent authorities. As there are no rules with regard to Page 9 of 11 Uploaded by U. SRILATHA(HC00185) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:18:30 IST 2025 NEUTRAL CITATION C/SCA/3336/2010 JUDGMENT DATED: 23/07/2025 undefined filling up the post of Associate Lecturer by way of promotion, the respondent authorities could not accept the prayer of the petitioner. Therefore, it is submitted to dismiss this petition.
4. I have heard the learned advocates for the parties and perused the material placed on record. The only grievance raised in the petition is that the petitioner was selected as Craft Teacher in the respondent no.4-institute, however, as the post of Associate Lecturer was vacant, he was given the additional duties from 1994 and therefore he should be given the post of Associate Lecturer by way of promotion. To this, the say of the respondent is that as there is no provision of filling up of the post of lecturer by promotion and it is required to be filled in by direct selection, the prayer of the petitioner cannot be accepted. The petitioner has not produced any document to show that there are rules to fill up the post of Associate Lecturer by way of promotion and still the respondents are not doing so and are taking his services without giving such promotion to him. On the contrary, from the documents produced by the respondents, it transpires that there are no express rules to fill up the said post by way of promotion. Therefore, the action of the respondents in not granting the prayer of the petitioner to give her promotion to the post of Associate Page 10 of 11 Uploaded by U. SRILATHA(HC00185) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:18:30 IST 2025 NEUTRAL CITATION C/SCA/3336/2010 JUDGMENT DATED: 23/07/2025 undefined Lecturer, as prayed for, cannot be said to be illegal or arbitrary. When there are no such rules, the respondents hands are also tied in granting such prayer.
5. In view of the above discussion, the prayers prayed for in this petition are not required to be entertained and therefore this petition is dismissed. Notice/Rule is discharged. Interim relief, if any, stands vacated.
(SANDEEP N. BHATT,J) SRILATHA Page 11 of 11 Uploaded by U. SRILATHA(HC00185) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:18:30 IST 2025