Nimit Deepak Shah vs State Of Gujarat, Notice To Be ...
2021 Latest Caselaw 368 Guj

       C/SCA/8358/2017                              JUDGMENT




    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

    R/SPECIAL CIVIL APPLICATION NO. 8358 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

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1   Whether Reporters of Local Papers may be
    allowed to see the judgment ?

2   To be referred to the Reporter or not ?

3   Whether their Lordships wish to see the fair
    copy of the judgment ?

4   Whether this case involves a substantial
    question of law as to the interpretation of the
    Constitution of India or any order made
    thereunder ?

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              NIMIT DEEPAK SHAH & 1 other(s)
                          Versus
   STATE OF GUJARAT, NOTICE TO BE SERVED THROUGH & 2
                         other(s)
======================================
Appearance:
MR. SAHIL M SHAH(6318) for the Petitioner(s) No. 1,2
MR BHARAT VYAS, ASSISTANT GOVERNMENT PLEADER(1) for
the Respondent(s) No. 1
MR SHIVANG J SHUKLA(2515) for the Respondent(s) No. 3
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2
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CORAM: HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                         Date : 12/01/2021

                         ORAL JUDGMENT

          C/SCA/8358/2017                                         JUDGMENT




[1.0]          By way of this petition petitioners have prayed that
the     respondents, more            particularly,     respondent        no.3 be

directed to consider them eligible to participate in the recruitment process carried pursuant to the advertisement dated 03.12.2015 where they have applied for the post of Associate Professor in the branch of Instrumentation and Control Engineering in Government Engineering Colleges.

[1.1] As such, the petitioners are aggrieved by the list dated 22.03.2017 whereby nearly 11 candidates were declared ineligible, calling them for the purpose of personal interview by way of direct recruitment for the post of Associate Professor in the branch of Instrumentation and Control Engineering, Gujarat Education Service (Collegiate branch) Class I, which includes both the petitioners at serial nos.5 and 10 on the ground that they did not posses requisite experience after obtaining the educational qualification for the post.

[2.0] Shri Sahil Shah, learned advocate for the petitioners, submitted that the petitioners posses in all 10 years of experience, which is more than required for the post advertised. However, the advertisement for the recruitment prescribes that the requisite experience would be counted as on the last date of submission of the application to the post, and therefore, according to his submission, respondent no.3 - Commission cannot declare them ineligible for being called for the interview on that ground. Drawing attention of the Court to the Assistant Professor Class I in Engineering Technology, Humanities and Sciences (in different discipline) in the Government Engineering Colleges, Government Polytechnics,

C/SCA/8358/2017 JUDGMENT

Technical Examinations Board and Continuing Education Center Recruitment Rules, 1998 (hereinafter referred to as the 'Rules, 1998') it is submitted that it specifically prescribes 5 years teaching experience or experience in Industry or in Research obtained after acquiring the educational qualification mentioned therein. Therefore, according to his submission wherever the required experience should be after obtaining the qualification, the recruitment rules and recruitment advertisement thereof very specifically mention about the same. He has further submitted that in absence of any such Rules the petitioners cannot be held to be ineligible on the ground that they do not posses required experience after obtaining educational qualification. Drawing attention to the Associate Professor, Class I in Engineering or Technology (in relevant branch) in Government Engineering Colleges Recruitment Rules, 2015 (hereinafter referred to as the 'Rules, 2015'), more particularly, Rule 3(b)(ii), it is submitted that it does not specify that the required experience should be after obtaining the required qualification, and therefore, he has submitted that the action of respondent no.3 - Commission not calling them for the purpose of personal interview on the ground that after obtaining requisite qualification they do not posses enough experience, as required, is bad in law, and therefore, respondent no.3 - Commission be directed to call them for the interview for the post they applied for.

[3.0] As against that, Shri Shivang Shukla, learned advocate for respondent no.3, drawing attention to the affidavit-in-reply filed by respondent no.3 - Commission submitted that in view of Rule 8(8) of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967

C/SCA/8358/2017 JUDGMENT

(hereinafter referred to as the 'Recruitment (General) Rules'), which applies to all the civil posts in the State makes a provision that,

"where the qualifications prescribed for any service or post include a qualification as to practical experience of a given period and applications are invited for such service or post "the period of practical experience shall be computed -

(a) Unless otherwise provided in recruitment rule from the date on which requisite qualifications are obtained.

(b) With reference to the last date fixed for receipt of such application.""

He has therefore submitted that for computation of practical experience for the purpose, in absence of any contrary provisions made in the recruitment rules, would be from the date on which the requisite qualification is obtained. Therefore, he has submitted that the grievance voiced in this petition by the petitioners is not sustainable, and therefore, the petition filed by them be rejected. He has further relied on the decision rendered by the coordinate Bench of this Court dated 22.02.2017 in Special Civil Application No.1896 of 2017, more particularly, paragraph no.5 thereof, which reads as under;

"In the instant case, it appears that the petitioner had applied for the post of Gujarat Educational Service, Class-1 (Administrative Branch), and had appeared in the written examination. He was one of

C/SCA/8358/2017 JUDGMENT

the 47 candidates, who were shortlisted for the verification of documents. On verification of the documents, the respondent No.2 had not included the name of the petitioner in the final merit-list prepared on 31.1.2017 on the ground that he did not fulfill the requisite experience criteria. Now it is true that as per the relevant Rules of 2002 the requirement for appointment by direct selection to the post of Gujarat Educational Service (Administrative Branch) Class-1, the candidate should possess the educational qualification as stated therein and also possess at least seven years' experience in teaching or inspection or administration or in any of them. However, as per the condition No.6(2)(a) of the conditions mentioned in the advertisement, the period of experience has to be counted from the date on which requisite educational qualification was acquired by the candidate. In the instant case, the petitioner having obtained the requisite educational qualification in 2012, it could not be said that the petitioner had requisite experience as mentioned in the advertisement. Though it is sought to be submitted by the learned Advocate for the petitioner that the GPSC cannot go beyond the criteria fixed in the Recruitment Rules, it is required to be noted that the said Recruitment Rules do provide for the experience of seven years in teaching. The GPSC only specified in the advertisement as to from which date the requisite experience has to be counted. Admittedly the

C/SCA/8358/2017 JUDGMENT

petitioner obtained the requisite qualification in the year 2012. The petitioner therefore having not possessed the requisite experience of seven years, the GPSC has rightly held him not eligible for the post."

[3.1] According to his submission, without seeking support from the Recruitment (General) Rules, this Court has held that once requirement of requisite experience to be counted from a particular date is mentioned in the advertisement itself, it is sufficient compliance and candidate must posses such experience as mentioned in it, and therefore, he has submitted that the petition is devoid of merits and it be rejected.

[4.0] Having heard the learned advocates for the parties and considering the documents annexed with it and the affidavit-in-reply alongwith the Rules as referred to hereinabove, it is clear that the petitioners cannot claim that when Rules are silent about computation of required experience specifically overall experience they posses should be considered.

[4.1] The contention that the earlier Rules 1998 specifically provided for required experience after obtaining the qualification for the post, despite such provision made in the Recruitment (General) Rules it must specifically be provided for in Recruitment Rules is required to be rejected for the simple reason that this general provision for recruitment in the State of Gujarat would apply to all the posts under the State Government including the State services or subordinate

C/SCA/8358/2017 JUDGMENT

services, and therefore, non-inclusion of such provision in the recent Rules for the purpose of recruitment would pale into insignificance and not entitle the petitioners to compute their required experience even before obtaining required qualification. The Recruitment General Rules is very specific that in absence of any specific provision of required experience, it has to be computed after obtainment of required qualification.

[5.0] Thus, there is no merit in the contention raised by the learned advocate for the petitioner, and therefore, this petition is required to be rejected. Hence, this petition is rejected. Notice is discharged. Ad-interim order passed earlier stands vacated.

(UMESH A. TRIVEDI, J.)

siji