Gujarat High Court

State Of Gujarat vs Ishwarbai Juthabhai Dalsania on 8 February, 2021

Bench: Mr. Justice Nath, Ashutosh J. Shastri

        C/LPA/205/2021                                ORDER




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


             R/LETTERS PATENT APPEAL NO. 205 of 2021
         In R/SPECIAL CIVIL APPLICATION NO. 2919 of 2015
                               With
            CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
            In R/LETTERS PATENT APPEAL NO. 205 of 2021
                               With
             R/LETTERS PATENT APPEAL NO. 206 of 2021
          In SPECIAL CIVIL APPLICATION NO. 2922 of 2015
                               With
            CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
            In R/LETTERS PATENT APPEAL NO. 206 of 2021
           In SPECIAL CIVIL APPLICATION NO. 2922 of 2015
                               With
             R/LETTERS PATENT APPEAL NO. 207 of 2021
           In SPECIAL CIVIL APPLICATION NO. 2921 of 2015
                               With
            CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
            In R/LETTERS PATENT APPEAL NO. 207 of 2021
           In SPECIAL CIVIL APPLICATION NO. 2921 of 2015
                               With
             R/LETTERS PATENT APPEAL NO. 208 of 2021
           In SPECIAL CIVIL APPLICATION NO. 2920 of 2015
                               With
            CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
            In R/LETTERS PATENT APPEAL NO. 208 of 2021
           In SPECIAL CIVIL APPLICATION NO. 2920 of 2015
                               With
             R/LETTERS PATENT APPEAL NO. 209 of 2021
           In SPECIAL CIVIL APPLICATION NO. 2918 of 2015
                               With
            CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
            In R/LETTERS PATENT APPEAL NO. 209 of 2021
           In SPECIAL CIVIL APPLICATION NO. 2918 of 2015

==========================================================
                        STATE OF GUJARAT
                               Versus
                   ISHWARBAI JUTHABHAI DALSANIA
==========================================================
Appearance:
MS MANISHA LAVKUMAR, Government Pleader (1) WITH MS AISHVARYA



                             Page 1 of 21

                                               Downloaded on : Thu Sep 02 04:15:18 IST 2021
           C/LPA/205/2021                                           ORDER



GUPTA & MS SHRUTI PATHAK, AGPs for the Appellant(s) No. 1,2
for the Respondent(s) No. 2
MR SHALIN MEHTA, Sr. Advocate WITH MS ADITI S RAOL(8128) for the
Respondent(s) No. 1
==========================================================

 CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM
        NATH
        and
        HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

                                Date : 08/02/2021

                             COMMON ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH)

1 The above five appeals have been preferred by

the State of Gujarat assailing the correctness of the

judgment and order dated 07.01.2020 passed by the

learned Single Judge in a group of five petitions being

Special Civil Application Nos.2918 to 2922 of 2015

whereby the learned Single Judge set aside the

communication dated 22.10.2014 of the Directorate of

Technical Education rejecting the request of the writ

petitioners of grant of selection grade and further

directed the Directorate to pass fresh orders in the light

of the observations and findings recorded in the said

judgment.

         C/LPA/205/2021                                     ORDER



2           The brief facts relevant for the purpose are that

all the petitioners (respondents herein) were appointed as

Lecturers, Class-II through direct recruitment prior to

1992. It is also an admitted position that the writ

petitioners (respondents herein) are holding Bachelor

Degree (second class) in their respective branches of

engineering. At the time when the petitioners were

appointed as Lecturers Class-II, the minimum

qualification required under the relevant provisions was

Bachelor in Engineering in Second Class. Later on, vide

notification dated 7th January, 1992, in exercise of powers

conferred under Article 309 of the Constitution of India,

rules were framed to provide for regulating recruitment

for the post of Lecturer in various institutions in the

Gujarat Educational Services, Class-II for Government

Polytechnics. The rules were called Lecturer, Class-II,

Engineering / Technology / Humanities / Science (in

different disciplines) in Government Polytechnic

Recruitment Rules, 1992, (hereinafter referred to as "the

1992 Rules"). Under the 1992 Rules, Rule 3(b)(i) provided

a First Class Bachelor's Degree in appropriate branch of

C/LPA/205/2021 ORDER

Engineering or Technology or a First Class Master's

Degree.

2.1 The State Government vide Government

Resolution dated 21.02.1991 introduced Career

Advancement Scheme for providing higher pay scale

where there was stagnation and promotional avenues

were not readily available. The career advancement was

from the scale of Lecturer to the pay scale of Lecturer

(Senior Scale) and next to the pay scale of Lecturer

(Selection Grade) as per the existing provisions of the 4th

Pay Commission. As per Para 10 of the Government

Resolution dated 21.02.1991, conditions were laid down

for award of pay-scale for Lecturer Selection Grade. As

per clause (d) of para 10, the Lecturer in the Senior Scale

for being placed in the Lecturer Selection Grade pay-

scale must possess qualifications as per existing

recruitment rules for the post of Head of the Department.

As per Annexure-III of the Government Resolution dated

21.02.1991, the essential qualifications for Head of the

Department was First Class Master's Degree in

C/LPA/205/2021 ORDER

Engineering/Technology in appropriate branch of study or

a Ph.D. Degree in appropriate branch. The petitioners not

possessing the Master's Degree were not covered by the

said G.R. for Career Advancement.

2.2 The 5th Pay Commission recommendations

came to be implemented for teachers serving in diploma

level technical institutions pursuant to the communication

of All India Council for Teacher Education (for short,

`AICTE') dated 30.12.1999. The State Government

accordingly in line with the recommendations of the

AICTE referred to above, issued Government Resolution

dated 20.06.2001. Under the aforesaid Government

Resolution of 2001, vide Notification Annexure-III of the

aforesaid Government Resolution dated 20.06.2001,

(specific para 1.3 thereof) granted exemption from the

requirement of First Class for the Degree in Bachelor's or

Master's Level for the teachers already in service prior to

01.01.1996. Further in clause (3)(1)(d) of Career

Advancement, it was provided that Lecturer Senior pay-

scale having a Master's Degree, five years experience as

C/LPA/205/2021 ORDER

Lecturer Senior pay-scale with consistently satisfactory

performance would be eligible to be placed in the pay-

scale of Lecturer (Selection Grade).

2.3 The recommendations of the AICTE of

December, 1999 gave rise to certain doubts and queries

for which the AICTE constituted an Expert Committee to

provide clarification and to resolve anomalies pertaining

to Pay Scales and Service Conditions for teachers of

Degree / Diploma level Technical Institutions. The said

Expert Committee gave its decision which was further

communicated by the AICTE vide covering letter dated

10.09.2003. It was thereafter that the State of Gujarat

issued Government Resolution dated 31.12.2012

extending the benefit to the teachers of degree / diploma

level institutions appointed prior to 01.01.1996 subject to

relaxation of educational qualification of Masters in

Engineering. The contents of the same duly translated are

reproduced below :-

"To cancel provision of M.E.

                                           For     selection     grade
                                           admissible    to   lecturers
                                           appointed in government
                                           polytechnic on 01/01/1996.




    C/LPA/205/2021                              ORDER




                 Gujarat Government
                Education Department
           Resolution No.:SCT/1210/3667/Gh
               Sachivalay, Gandhinagar.
              Date: 31st December, 2012

READ:-

1. The letter dated 27/11/2010 of the office of Technical Education Commissioner bearing No.Representation/Mandal/ Poly./2010/Gh.3 A/41958.

2. The resolution dated 20/06/2001 of the Education Department bearing No.SCT/1099/1887/Gh.

3. Clarification made vide the letter dated 10/09/2003 of AICTE bearing No.FD/PSSC/CUARIP/2003.

RESOLUTION:

The matter to cancel the provision of M.E. for selection grade admissible to lecturers appointed before 01/01/1996 received vide the letter referred to at serial no.1 was under consideration.

As per the condition contained in Annexure-3(D) of the Resolution cited at Reference-2 above, if lecturers of government polytechnic possess qualification of master degree after completion of 5 years of service after getting benefit of senior scale, provision was made to make them eligible for selection grade.

At the end of careful consideration, the approval is granted to give the benefit from the date of the clarifications made in the letter dated 10/09/2003 of the AICTE to the lecturers of the government polytechnic appointed before 01/01/1996 giving relaxation in the condition of the educational qualification of M.E. Stated in Annexure-3(d) of the resolution dated 20/06/2001 of the Education Department as per clarifications mentioned in the letter dated 10/09/2003 of the AICTE cited at reference-3 above. Lapsed time shall be considered notional and no benefit of seniority or promotion shall be admissible on getting this selection grade. The approval is granted on the condition that the

C/LPA/205/2021 ORDER

Commissioner, Technical Education shall be responsible to give benefit after proper verification of the facts in individual cases.

These orders have been issued as per the consent received on note dated 03/10/2012 of the finance department on even number file of this department.

By the order and in the name of the Governor of Gujarat,

Sd/-(Illegible) (V.B. Rabari) Section Officer, Education Department Copy to:

• The Personal Secretary to the Hon'ble Chief Minister • The Personal Secretary to the Hon'ble Minister (Education) • The Personal Secretary to the Hon'ble State Minister (Technical Education) • The Personal Secretary to the Hon'ble Minister (Finance) • The A.C.S., Finance Department • The Principal Chief Secretary (Expenditure), Finance Department • The Principal Secretary, Secretariat, Gandhinagar • The A.C.S., Finance Department • The Personal Secretary to the Principal Secretary (Education) • The Commissioner, Office of Technical Education, Gandhinagar • The Branch, Select File • The Deputy Section Officer, Select File."

2.4 The writ petitioners claiming benefit of the two

Government Resolutions dated 20.06.2001 and

31.12.2012 submitted an application dated 03.04.2013

claiming selection grade having completed 5 years of

C/LPA/205/2021 ORDER

service in senior scale w.e.f 01.01.2001, as they were

granted senior scale w.e.f. 01.01.1996. It is this request

of the writ petitioners which was rejected by the

Directorate, Technical Education vide communication

dated 22.10.2014 on the ground that they did not possess

first class in their bachelor degree. It was this

communication of the Directorate that was challenged

before the learned Single Judge by the petitioners in the

above five writ petitions.

3 The learned Single Judge allowed the writ

petitions vide judgment dated 07.01.2020 on the finding

that the recruitment rules regarding qualification as

applicable at the time of the original selection/

recruitment of the petitioners would be applicable even

while considering their Career Advancement Scheme and

accordingly held that the decision of the Directorate was

not correct. The findings so recorded in paragraph 13 of

the judgment is reproduced below:

"[13.0] The petitioners are recruited prior to 01.01.1996 and hence,they are governed by the

C/LPA/205/2021 ORDER

Recruitment Rules when they were appointed and in view of the qualification, which they were holding at the relevant time. In view of the clarification of the AICTE as well as the resolutions passed by the State Government, the petitioners cannot be denied the benefits of selection grade in view of the Notification dated 07.01.1992 prescribed in the qualification for the candidates, who are appointed by way of direct selection to the post of Lecturers (Class-II).

3.1 The learned Single Judge although took into

consideration the other Government Resolutions as also

the recommendations of the AICTE and noticed that the

relaxation from educational qualifications was available

to teachers appointed prior to 01.01.1996, as is evident

from perusal of paragraphs 11 and 12, but the relief has

been granted in view of the findings recorded in

paragraph 13. The learned Single Judge also noticed that

the Directorate of Education had failed to take into

consideration the relevant provisions of the Government

Resolutions as also the recommendations and

clarifications issued by the AICTE and as such the

impugned decision of the Directorate was vitiated in law.

3.2 Aggrieved by the judgment of the learned

Single Judge, the present five appeals have been

preferred by the State.

        C/LPA/205/2021                                               ORDER



4         We have heard Ms. Manisha Lavkumar, learned

Government Pleader assisted by Ms. Aishvarya Gupta and

Ms. Shruti Pathak, learned Assistant Government

Pleaders for the State appellants and Mr. Shalin Mehta,

learned Senior Advocate assisted by Ms. Aditi Raol,

learned counsel for the private respondents.

5 Referring to the finding recorded in para 13 of

the impugned judgment, Ms. Manisha Lavkumar, learned

Government Pleader, submitted that the learned Single

Judge fell in error in holding that the recruitment rules

which were in existence at the time of appointment of the

petitioners would be applicable even while considering

their case for grant of selection grade. According to Ms.

Manisha Lavkumar, the qualifications as per rules

prevalent at the time of consideration for grant of

promotion or for Career Advancement would be

applicable when the benefit of promotion or career

advancement is being given. Since admittedly the

petitioners did not possess the qualification, as

prescribed by 1992 Rules i.e. of First Class Bachelors

C/LPA/205/2021 ORDER

Degree or the qualifications as required by the

Government Resolution providing for Career

Advancement i.e. Masters Degree, the same has been

rightly denied. Ms. Manisha Lavkumar has placed

reliance on the following two judgments of the Supreme

Court :

[1] Deepak Agarwal & Anr. vs. State of Uttar

Pradesh & Ors. [(2011)6 SCC 725).

[2] Union of India & Ors. vs. Krishna Kumar &

Ors. [(2019)4 SCC 319].

Referring to relevant extracts of the above two

judgments, Ms.Lavkumar submitted that the judgment of

the learned Single Judge cannot be sustained and

deserves to be set aside. The petitioners are not entitled

to any relief as such the petitions deserves to be

dismissed.

6 On the other hand, Mr. Shalin Mehta, learned

Senior Advocate submitted that even if the reasoning of

the learned Single Judge recorded in paragraph 13 may

C/LPA/205/2021 ORDER

not be correct, but considering the other reasonings

recorded in paragraphs 12 and 14, the judgment of the

learned Single Judge does not suffer from any error in

granting the relief to the petitioners.

7 Further, according to Mr. Mehta, the State

Government in its Government Resolution dated

20.06.2001 clearly provided that the revised pay scales of

teachers of Government in grant-in-aid technical diploma

level institutions would be effective from 01.01.1996 as

per Annexures I, II and III. Annexure-III to the said

Government Resolution provides for qualifications,

recruitment, career advancement and other service

related conditions. This Government Resolution also

provided the revised qualifications, but at the same time

it had placed certain riders.

8 According to Mr. Mehta as per the provisions

contained in Annexure-III to the Government Resolution

dated 20.06.2001, the qualifications for the teachers, who

have been appointed prior to 01.01.1996 have been duly

C/LPA/205/2021 ORDER

relaxed regarding possessing first class in the bachelor's

degree. Mr.Mehta also drew our attention to the decision

of the Expert Committee of the AICTE as communicated

vide letter dated 10.09.2003.

9 According to him, once the State Government

vide subsequent resolution dated 31.12.2012 extended

the benefit of career advancement to the teachers

appointed prior to 01.01.1996 exempting Master's

Degree requirement, there was no justification for the

Directorate to reject the claim of the petitioners for grant

of the selection grade ignoring the relaxation already

extended by the State as also the AICTE.

10 Having considered the submissions advanced

by the respective Senior Counsels for the parties, we are

in agreement with the submissions advanced by Ms.

Manisha Lavkumar, learned Government Pleader only to

the extent that the reasoning contained in paragraph 13

of the judgment of the learned Single Judge is not

correct. The qualifications to be seen at the time of

C/LPA/205/2021 ORDER

promotions or career advancement would be as are

existing at the time of consideration and not at the time

of recruitment. The judgments in the case of Deepak

Agarwal (supra) as also Krishana Kumar (supra)

after discussing the previous judgments have reiterated

the same principle. The judgment in the case of

Krishana Kumar (supra) takes notice of paragraph 26

of the judgment of Deepak Agarwal (supra) to reiterate

that it is well settled that there is no vested right to

promotion, but a right to be considered for promotion in

accordance with the Rules which prevail on the date on

which consideration for promotion takes place (para 10 of

the report). Further, the judgment in the case of

Krishana Kumar (supra) records in paragraph 13 of

the report that the right is to be considered for promotion

in accordance with the Rules as they exist when the

exercise is carried out for promotion. Career

advancement is only a substitute for promotion inasmuch

as higher pay scale is being awarded, the same principles

would be applicable, and therefore, the reasoning given

by the learned Single Judge in paragraph 13 of the

C/LPA/205/2021 ORDER

impugned judgment cannot be sustained in law.

10.1 Now, coming to the issue as to whether in the

facts and circumstances of the case and in the light of the

recommendations and clarifications issued by AICTE and

the Government Resolution issued by the State of Gujarat

from time to time whether the petitioners were entitled to

any relief or not. As already stated, the petitioners were

appointed prior to 1992. The recruitment rules, which

were notified on 07.01.1992 required First Class in

Bachelor of Engineering to be one of the qualifications for

being appointed as Lecturer. Prior to the said recruitment

rules i.e. prior to 07.01.1992, there was no requirement

of first class in Bachelor of Engineering. The petitioners

were appointed prior to 07.01.1992 and possessed the

minimum qualifications for being appointed as Lecturer

at the time of their appointment, which was Second Class

in Bachelor in Engineering.

10.2 The Career Advancement Scheme was

introduced in 1991 vide Government Resolution dated

C/LPA/205/2021 ORDER

21.02.1991. This provided that for getting pay-scale of

Lecturer (Selection Grade) Master Degree in Engineering

was essential qualification.

10.3 The Government Resolution dated 20.06.2001

however clearly provided for relaxation of the

qualifications with respect to teachers appointed prior to

01.01.1996. Paragraph 1 of Annexure-III to the

Government Resolution dated 20.06.2001 deals with

qualifications. The same is reproduced below:

"Annexure-III

1.0 QUALIFICATIONS:

The prescribed minimum qualifications and experience requirements for various teaching posts in diploma level technical institutions are given in Appendix-A.

1.2 Where qualifications and experience prescribed for a post in this pay revision are higher than the qualifications and experience prescribed by AICTE for that post prior to this revision,

I] the revised qualifications and experience will be applicable only for new recruits.

II] for open selection to a higher cadre position through advertisement existing candidates presently working in a lower position will be exempted from the prescribed

C/LPA/205/2021 ORDER

higher qualification and experience to the extent that they will be required to possess at least the qualifications and experience prescribed by AICTE prior to this pay revision. This relaxation will be available only for a period of 5 years from the date of issue of this resolution. Thereafter, existing candidates must also possess the qualifications and experience prescribed in this order.

1.3 Teachers already in service prior to January 1, 1996 and who at the time of the recruitment possessed only a second class in their degree at Bachelor's or Master's level (but met all the qualifications requirements prescribed by AICTE at the time of their recruitment) shall be exempted from the requirement of First Class for the Degree they had at the time of their recruitment.

1.4 Teachers already in service prior to January 1, 1996 and appointed as teachers as per State Government's Recruitment Rules prior to the establishment of AICTE and who at the time of their recruitment possessed only a second class in their diploma level shall also be exempted from the requirement of First Class Bachelor's degree in appropriate branch of Engineering / Technology."

10.4 Para 1.2 of the qualifications clearly mentions

that the revised qualifications as per Appendix-A,

experience would be applicable for only new recruitees.

Paragraph 1.3 is relevant for teachers already in service,

which clearly mentions that all those appointed prior to

01.01.1996 and who possessed a second class in their

degree at Bachelor's or Master's level at the time of

C/LPA/205/2021 ORDER

recruitment, however met all other qualifications at the

time of their recruitment, would be exempted from

requirement of first class. Further, as per the

Government Resolution dated 31.12.2012 exemption was

granted from Master's Degree to the teachers appointed

prior to 01.01.1996 for being considered for award of

pay-scale of Lecturer (Selection Grade). Therefore, at the

time of consideration of career advancement in 2013, the

writ petitioners would become eligible and ought to be

treated to be qualified for being extended the benefit of

pay-scale of Lecturer (Selection Grade).

10.5 It would be also relevant to note that even the

Expert Committee constituted by the AICTE for the

purpose of clarification / removal of anomalies, at Item

No.10 of its report recommended for relaxation of

qualification for teachers who had been recruited prior to

01.01.1996 to be considered for Career Advancement

Scheme for both the higher pay scales i.e. from lecturer

to senior scale and senior scale to selection grade. Item

No.10 of the Committee report is reproduced below:

C/LPA/205/2021 ORDER

"Item No.10 : Anomaly in AICTE recommended pay scales for teachers of diploma level technical institutions (polytechnics)

Decision Taken:

The committee had discussed the issue at length and it was decided that the teachers who have been recruited prior to 1.1.1996, should be governed by the existing Recruitment Rules (RR's). So, the committee recommends relaxation of qualification for such teachers to consider them for CAS in the grade of Lecturer (i.e. from Lecturer to senior grade and from senior grade to selection grade) and also for those who were promoted before the implementation of revised AICTE pay scales & service conditions. (From the date of AICTE notification to the date of implementation of the same by the concerned State Government / Union Territory)."

10.6 Once the said relaxation has already been

provided and once the Government decided vide

Government Resolutions dated 20.06.2001 and

31.12.2012 to extend the benefit of grant of selection

grade to the teachers appointed prior to 01.01.1996 by

extending relaxations and who had the requisite

qualifications at the time of initial appointment as also

experience, which is not now disputed, there was no

justification for the Directorate not to grant the benefit.

The learned Single Judge to the above extent of granting

the above benefit was correct, however, the reasoning

may not be correct. Therefore, the decision as per the