Gujarat High Court
Jigar Arvindbhai Joshi vs State Of Gujarat on 17 July, 2025
NEUTRAL CITATION
C/SCA/2292/2017 CAV JUDGMENT DATED: 17/07/2025
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Reserved On : 02/07/2025
Pronounced On : 17/07/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2292 of 2017
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CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 15404 of 2017
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CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 15612 of 2017
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R/SPECIAL CIVIL APPLICATION NO. 15757 of 2017
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CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 15816 of 2017
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R/SPECIAL CIVIL APPLICATION NO. 15822 of 2017
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R/SPECIAL CIVIL APPLICATION NO. 15902 of 2017
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CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 15926 of 2017
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CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 16092 of 2017
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R/SPECIAL CIVIL APPLICATION NO. 16222 of 2017
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CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2018
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R/SPECIAL CIVIL APPLICATION NO. 16434 of 2017
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CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2018
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NEUTRAL CITATION
C/SCA/2292/2017 CAV JUDGMENT DATED: 17/07/2025
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With
R/SPECIAL CIVIL APPLICATION NO. 17616 of 2017
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R/SPECIAL CIVIL APPLICATION NO. 19479 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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Approved for Reporting Yes No
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JIGAR ARVINDBHAI JOSHI & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR PP MAJMUDAR, MR ASHOK A PUROHIT, MR NR DESAI, MR GAURAV
CHUDASAMA, MR JAY K PUROHIT, MR BHAVESH J PATEL and MR
RADHESH Y VYAS, ADVOCATES for the Petitioners
MS SURBHI BHATI, AGP for the Respondents - State Authorities
MR PREMAL JOSHI, MR HS MUNSAHW, MR RB THAKOR, MS RV
ACHARYA, MR MANISH J PATEL, MR NILESH PANDYA, MR ABHISHEK A
JOSHI, MR MAHARSHI PATEL for HL PATEL ADVOCATES, MR UM
SHASTRI, ADVOCATES for the Respondents - Panchayats & other
Authorities
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
CAV JUDGMENT
1. Since the issue involved in this group of petitions, the contentions raised and submissions made by the learned advocates for the respective parties are identical, with the consent of the learned for the respective parties, all these petitions are heard and decided finally by this Court. Page 2 of 20 Uploaded by M.H. DAVE(HC00193) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:28:44 IST 2025
NEUTRAL CITATION C/SCA/2292/2017 CAV JUDGMENT DATED: 17/07/2025 undefined
2. By way of these petitions, the petitioners seek direction against the respondent authorities to consider them as eligible for the purpose of promotion to the post of Head Teachers by considering their services put in as Vidhya Sahayakas as their experience for such promotion by accepting their physical forms; and that to direct the respondent authorities not to issue final promotion orders to any persons.
3. Heard learned advocates. Rule returnable forthwith. 4.1 Learned advocate Mr. P.P.Majmudar for the petitioners has mainly contended that the petitioners have experience of more than five years considering their date of initial appointment, which was on fixed basis, as Vidhya Sahayaks, which is required to be considered for the purpose of promotion, seniority, higher pay-scale and retiral benefits as per the Government Resolution dated 18.01.2017. He has further submitted that only the nomenclature of Vidhya Sahayakas cannot make any difference and the work done by Vidhya Sahayakas is identical to the teaching work which is done by Primary Teachers and therefore, there is no requirement and the distinction which is sought to be made between two similarly situated classes of the Teachers by the respondent authorities, is illegal. Page 3 of 20 Uploaded by M.H. DAVE(HC00193) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:28:44 IST 2025
NEUTRAL CITATION C/SCA/2292/2017 CAV JUDGMENT DATED: 17/07/2025 undefined 4.2 He has raised several other contentions before this Court regarding clearance of HTAT, fixed pay salary, absorption after five years experience, eligibility criteria, educational qualification, etc., however, these issues are not significant to the reliefs as prayed for, therefore, they do not need to be addressed.
5.1 Per Contra, learned AGP Ms.Surbhi Bhati for the State has vehemently opposed these petitions. She has drawn the attention of this Court towards the affidavit-in-replies filed by the respondents - various Government authorities and has submitted that the Government Resolution dated 18.01.2017 is not applicable to the petitioners, since they were initially appointed as Vidhya Sahayakas. She has further submitted that in the appointment orders of the petitioners itself, it is specifically stated at Condition No.12 that, if the services as Vidhya Sahayakas, after completion of two years, found satisfactory, in that case, in seriatim, they will be accommodated to the post of Primary Teachers against the vacancy arises due to superannuation of Primary Teachers. She has also submitted that it is further categorically stated in the said appointment orders that after completion of five years, all Vidhya Sahayakas shall be accommodated in the pay-scale of Primary Teacher. 5.2 She has also submitted that the Education Page 4 of 20 Uploaded by M.H. DAVE(HC00193) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:28:44 IST 2025 NEUTRAL CITATION C/SCA/2292/2017 CAV JUDGMENT DATED: 17/07/2025 undefined Department in exercise of the powers conferred by Section 23(3) of the Gujarat Primary Education Act, 1947 has framed the Head Teacher Class-III in the Subordinate Service of the Directorate of Primary Education or respective District or Municipal Primary Education Committee Recruitment Rules, 2012. As per Rule-2, the appointment to the post of Head Teacher shall be made by promotion of a person of proved merit and efficiency from amongst the persons who have worked for not less than five years in the cadre of Primary Teacher Class-III in the Subordinate Services of Directorate of Primary Education or respective District or Municipal Primary Education Committee. She has further submitted that in the present case, admittedly, the petitioners were appointed to the post of Primary Teacher vide order dated 17.12.2015, meaning thereby, they entered in the cadre of Primary Teacher in the year 2015, therefore, the services put in by the petitioners as Vidhya Sahayakas cannot be counted for such promotion. She has submitted that these petitions may be dismissed
6. I have considered the rival submissions made by the learned advocates for the respective parties. I have perused the documents available on record. 6.1 From the submissions canvassed by the learned advocates for the respective parties, this Court finds that the Page 5 of 20 Uploaded by M.H. DAVE(HC00193) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:28:44 IST 2025 NEUTRAL CITATION C/SCA/2292/2017 CAV JUDGMENT DATED: 17/07/2025 undefined main controversy between the parties would be that the petitioners be treated as eligible for the purpose of promotion to the post of Head Teacher by considering their five years' services put in as Vidhya Sahayakas.
6.2 It is a matter of record that the petitioners are appointed as Vidhya Sahayakas in the year 2010/2011. There are various conditions mentioned in the appointment orders. Condition No.12 of the appointment order specifically states that after two years, if the services as Vidhya Sahayakas are found satisfactory, the posts falling vacant due to the retirement of Teachers of that year, will be included in the regular pay-scale of Rs.5200-20200 as Primary Teachers, in a phased manner. At the end of five years, all the remaining Vidhya Sahayakas will be included in the pay-scale of Primary Teachers.
6.3 At the time of joining the services as Vidhya Sahayakas, the petitioners are well aware about these conditions and about the fact that they are going to work as Vidhya Sahayakas with fixed pay and not the Primary Teachers with regular pay-scale. They are also well aware about the various conditions, including Condition No.12, mentioned above, that they will be absorbed as Primary Teacher with regular pay-scale as and when posts get vacant or at the end of five years service as Vidhya Sahayakas in Page 6 of 20 Uploaded by M.H. DAVE(HC00193) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:28:44 IST 2025 NEUTRAL CITATION C/SCA/2292/2017 CAV JUDGMENT DATED: 17/07/2025 undefined fixed pay.
6.4 From above, it is clear that the petitioners are appointed as Vidhya Sahayakas in fixed pay and not as Primary Teacher with regular pay-scale; and that the petitioners have completed five years' service as Vidhya Sahayakas and not as Primary Teachers, indisputably. 6.5 The issue is raised before this Court when the respondent authorities have denied the participation of the petitioners for the post in question i.e. Head Teacher. As averred, the petitioners are possessing requisite qualification for the post of Head Teachers. The respondent authorities did not raise any doubt regarding the educational qualification of the petitioners. The only question would be that the services rendered by the petitioners as Vidhya Sahayakas i.e. five years service should be considered as experience for the post of Head Teacher, which the respondent authorities have denied.
6.6 Rule-2(a)(i) of the Head Teacher, Class-III, in the subordinate service of the Directorate of Primary Education or respective District or Municipal Primary Education Committee, Recruitment Rules, 2012 reads as under :
"2 Appointment to the post of Head Teacher, Class III, int eh subordinate service Page 7 of 20 Uploaded by M.H. DAVE(HC00193) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:28:44 IST 2025 NEUTRAL CITATION C/SCA/2292/2017 CAV JUDGMENT DATED: 17/07/2025 undefined of the Directorate of Primary Education or respective District or Municipal Primary Education Committee, 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 five years in the cadre of Primary Teacher, Class III, in the subordinate service of the Directorate of Primary Education or respective District or Municipal Primary Education Committee; "
6.7 The Finance Department, Government of Gujarat vide its Resolution dated 18.01.2017 clearly stated that the five years fixed pay period of the employees is not taken into account in any matter related to service/job. 6.8 The petitioners are seeking promotion to the post of Head Teachers. The hierarchy of the said class is as under.
Head Teachers Primary Teachers Vidhya Sahayakas Page 8 of 20 Uploaded by M.H. DAVE(HC00193) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:28:44 IST 2025 NEUTRAL CITATION C/SCA/2292/2017 CAV JUDGMENT DATED: 17/07/2025 undefined As per the conditions mentioned in the appointment orders of Vidhya Sahayakas itself, if the services as Vidhya Sahayakas, after completion of two years, found satisfactory, in that case, in seriatim, they will be accommodated to the post of Primary Teachers against the vacancy that arises due to superannuation of primary teachers; and that after completion of five years, all the Vidhya Sahayakas shall be accommodated in the pay-scale of Primary Teacher. Thus, it is clear that the petitioners are appointed in the post of Vidhya Sahayakas with fixed pay and not in the post of Primary Teachers with regular pay- scale.
6.9 By way of these petitions, the petitioners seek promotion to the post of Head Teachers directly from the post of Vidhya Sahayakas. The rules/resolutions/policies time and again clarifies that the experience as Vidhya Sahayaka in fixed pay should not be treated for any purpose in service. It is a matter of record that the petitioners have been absorbed as Primary Teachers after completion of five years services in the year 2015-2016. They claim participation for the post of Head Teachers in the year 2017. Therefore, indisputably, they have not rendered services of five years in the post of Primary Teachers.
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NEUTRAL CITATION C/SCA/2292/2017 CAV JUDGMENT DATED: 17/07/2025 undefined 6.10 This Court, vide interim order, directed the respondent authorities to permit the petitioners to fill up their forms for the post of Head Teachers and this Court has clarified that the petitioners cannot create any equity by that arrangement. The said order was subject to outcome of these petitions.
6.11 On inquiry, it is reported that by efflux of time, the petitioners have completed five years service as Vidhya Sahayakas in fixed pay, therefore, they are given full pay- scale and are treated as Primary Teachers from the year 2015/2016. Further, it is reported that some of the petitioners wanted to withdraw their claim from this group on that basis also. The process for the post in question might be over by this time. Further, it may also have happened that many of them must have been promoted as Head Teacher or their successful completion of five years as a Primary Teacher. Because of the subsequent development, it is not that these petitions have become academic bust when the petitioners were not eligible on the date of these petitions, for the reasons mentioned hereinabove, these petitions are not required to be entertained.
7.1 At this stage, it would be fruitful to refer to the decision of the Hon'ble Apex Court in the case of V.Vincent Page 10 of 20 Uploaded by M.H. DAVE(HC00193) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:28:44 IST 2025 NEUTRAL CITATION C/SCA/2292/2017 CAV JUDGMENT DATED: 17/07/2025 undefined Velankanni versus Union of India and others reported in 2024 SCC OnLine SC 2642, more particularly Paras : 42 and 43 thereof, which read as under.
"42. It is trite law that an Office Memorandum/Government Order cannot have a retrospective effect unless and until there is an express provision to make its effect retrospective or that the operation thereof is retrospective by necessary implication. In this regard, we are benefitted by the observations of this Court in Sonia vs. Oriental Insurance Co. Ltd. and Others , (2007) 10 SCC 627 wherein it was held that :
"11...In any view of the matter, law is well settled that an Office Memorandum cannot have a retrospective effect unless and until intention of the authorities to make it as such is revealed expressly or by necessary implication in the Office Memorandum."
43. If a Government Order is treated to be in the nature of a clarification of an earlier Government Order, it may be made applicable retrospectively. Conversely, if a subsequent Government Order is held to be a modification/amendment of the earlier Government Page 11 of 20 Uploaded by M.H. DAVE(HC00193) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:28:44 IST 2025 NEUTRAL CITATION C/SCA/2292/2017 CAV JUDGMENT DATED: 17/07/2025 undefined Order, its application would be prospective as retrospective application thereof would result in withdrawal of vested rights which is impermissible in law and the same may also entail recoveries to be made. The principles in this regard were culled out by this Court in a recent judgment of Sree Sankaracharya University of Sanskrit and Others vs. Dr. Manu and Another 2023 SCC OnLine SC 640, in the following terms: -
"52. From the aforesaid authorities, the following principles could be culled out :
(i) If a statute is curative or merely clarificatory of the previous law, retrospective operation thereof may be permitted.
(ii) In order for a subsequent
order/provision/amendment to be
considered as clarificatory of the
previous law, the pre-amended law
ought to have been vague or
ambiguous. It is only when it would
be impossible to reasonably interpret a provision unless an amendment is read into it, that the amendment is considered to be a clarification or a Page 12 of 20 Uploaded by M.H. DAVE(HC00193) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:28:44 IST 2025 NEUTRAL CITATION C/SCA/2292/2017 CAV JUDGMENT DATED: 17/07/2025 undefined declaration of the previous law and therefore applied retrospectively.
(iii) An explanation/clarification may not expand or alter the scope of the original provision.
(iv) Merely because a provision is described as a clarification/explanation, the Court is not bound by the said statement in the statute itself, but must proceed to analyse the nature of the amendment and then conclude whether it is in reality a clarificatory or declaratory provision or whether it is a substantive amendment which is intended to change the law and which would apply prospectively.""
7.2 It would also be fruitful to refer to the decision of the Hon'ble Apex Court in the case of Government of West Bengal & others versus Dr. Amal Satpathi & others, Diary No.43488 of 2023 dated 27.11.2024, wherein the Hon'ble Apex Court has observed as under :
"19. It is a well settled principle that promotion becomes effective from the date it is granted, rather than from the date a vacancy arises or the post is Page 13 of 20 Uploaded by M.H. DAVE(HC00193) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:28:44 IST 2025 NEUTRAL CITATION C/SCA/2292/2017 CAV JUDGMENT DATED: 17/07/2025 undefined created. While the Courts have recognized the right to be considered for promotion as not only a statutory right but also a fundamental right, there is no fundamental right to the promotion itself. In this regard, we may gainfully refer to a recent decision of this Court in the case of Bihar State Electricity Board and Others v. Dharamdeo Das, 2024 SCC OnLine SC 1768 wherein it was observed as follows :
18. It is no longer res integra that a promotion is effective from the date it is granted and not from the date when a vacancy occurs on the subject post or when the post itself is created. No doubt, a right to be considered for promotion has been treated by courts not just as a statutory right but as a fundamental right, at the same time, there is no fundamental right to promotion itself. In this context, we may profitably cite a recent decision in Ajay Kumar Shukla v. Arvind Rai, (2022) 12 SCC 579 where, citing earlier precedents in Director, Lift Irrigation Corporation Ltd. v.
Pravat Kiran Mohanty, (1991) 2 SCC 295 and Ajit Singh v. State of Punjab, (1999) 7 SCC 209 a three-Judge Bench observed thus:
41. This Court, time and again, has laid emphasis on right to be considered for Page 14 of 20 Uploaded by M.H. DAVE(HC00193) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:28:44 IST 2025 NEUTRAL CITATION C/SCA/2292/2017 CAV JUDGMENT DATED: 17/07/2025 undefined promotion to be a fundamental right, as was held by K. Ramaswamy, J., in Director, Lift Irrigation Corpn. Ltd. v. Pravat Kiran Mohanty in para 4 of the report which is reproduced below:
4. There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it arises, in accordance with relevant rules.
From this perspective in our view the conclusion of the High Court that the gradation list prepared by the corporation is in violation of the right of respondent-writ petitioner to equality enshrined under Article 14 read with Article 16 of the Constitution, and the respondent-writ petitioner was unjustly denied of the same is obviously unjustified.
42. A Constitution Bench in Ajit Singh v. State of Punjab, laying emphasis on Article 14 and Article 16(1) of the Constitution of India held that if a person who satisfies the eligibility and the criteria for promotion but still is not considered for promotion, then there will be clear violation of his/hers fundamental right. Jagannadha Rao, J. speaking for himself and Anand, C.J., Venkataswami, Pattanaik, Kurdukar, JJ., Page 15 of 20 Uploaded by M.H. DAVE(HC00193) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:28:44 IST 2025 NEUTRAL CITATION C/SCA/2292/2017 CAV JUDGMENT DATED: 17/07/2025 undefined observed the same as follows in paras 22 and 27:
Articles 14 and 16(1) : is right to be considered for promotion a fundamental right
22. Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the State shall not deny to any person equality before the law or the equal protection of the laws. Article 16(1) issues a positive command that:
'there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State'.
It has been held repeatedly by this Court that clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said clause particularises the generality in Article 14 and identifies, in a constitutional sense equality of opportunity in matters of employment and appointment to any office under the State. The word employment being wider, there is no dispute that it takes within its fold, the aspect of Page 16 of 20 Uploaded by M.H. DAVE(HC00193) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:28:44 IST 2025 NEUTRAL CITATION C/SCA/2292/2017 CAV JUDGMENT DATED: 17/07/2025 undefined promotions to posts above the stage of initial level of recruitment. Article 16 (1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be considered for promotion. Equal opportunity here means the right to be considered for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be considered for promotion, which is his personal right. Promotion based on equal opportunity and seniority attached to such promotion are facets of fundamental right under Article 16(1).
* * *
27. In our opinion, the above view expressed in Ashok Kumar Gupta [ Ashok Kumar Gupta v. State of U.P., (1997) 5 SCC 201 and followed in Jagdish Lal [ Jagdish Lal v.
State of Haryana, (1997) 6 SCC 538 and other cases, if it is intended to lay down that the right guaranteed to employees for being considered for promotion according to relevant rules of recruitment by promotion (i.e. whether on the basis of seniority or merit) is only a statutory right and not a Page 17 of 20 Uploaded by M.H. DAVE(HC00193) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:28:44 IST 2025 NEUTRAL CITATION C/SCA/2292/2017 CAV JUDGMENT DATED: 17/07/2025 undefined fundamental right, we cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be considered for promotion is indeed a fundamental right guaranteed under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta [Ashok Kumar Gupta v. State of U.P.], right from 1950.
20. In State of Bihar v. Akhouri Sachindra Nath, 1991 Supp (1) SCC 334 it was held that retrospective seniority cannot be given to an employee from a date when he was not even borne in the cadre, nor can seniority be given with retrospective effect as that might adversely affect others. The same view was reiterated in Keshav Chandra Joshi v. Union of India, 1992 Supp (1) SCC 272 where it was held that when a quota is provided for, then the seniority of the employee would be reckoned from the date when the vacancy arises in the quota and not from any anterior date of promotion or subsequent date of confirmation. The said view was restated in Uttaranchal Forest Rangers Assn. (Direct Recruit) v. State of U.P., (2006) 10 SCC 346 , in the following words:
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37. We are also of the view that no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre so as to adversely affect the direct recruits appointed validly in the meantime, as decided by this Court in Keshav Chandra Joshi v. Union of India held that when promotion is outside the quota, seniority would be reckoned from the date of the vacancy within the quota rendering the previous service fortuitous.
The previous promotion would be regular only from the date of the vacancy within the quota and seniority shall be counted from that date and not from the date of his earlier promotion or subsequent confirmation. In order to do justice to the promotes, it would not be proper to do injustice to the direct recruits.
38. This Court has consistently held that no retrospective promotion can be granted nor can any seniority be given on retrospective basis from a date when an employee has not even been borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validity in the meantime. (emphasis supplied)"
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8. In view of above facts and circumstances of the case, this Court finds that the prayers made by the petitioners need not be considered at this stage. These petitions are devoid of merit. There is no discrimination or illegality by the respondent authorities in the process of post in question - Head Teachers at that relevant time. These petitions therefore need to be dismissed and are dismissed accordingly. Rule is discharged. Interim relief granted earlier stands vacated.
9. In view of above, civil applications would not survive and are disposed of accordingly.
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