Kiran Harishbhai Chavda vs State Of Gujarat
2021 Latest Caselaw 17592 Guj

     C/SCA/11260/2017                                 JUDGMENT DATED: 23/11/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 11260 of 2017

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?                                                NO

2     To be referred to the Reporter or not ?
                                                                           NO
3     Whether their Lordships wish to see the fair copy
      of the judgment ?                                                    NO

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution                  NO
      of India or any order made thereunder ?

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                         KIRAN HARISHBHAI CHAVDA
                                  Versus
                        STATE OF GUJARAT & 2 other(s)
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Appearance:
MS HARSHAL N PANDYA(3141) for the Petitioner(s) No. 1
MR ADITYASINH JADEJA, AGP for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2,3
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                       Date : 23/11/2021
                      ORAL JUDGMENT

At the outset, learned advocate Ms.Harshal Pandya, on instructions, has submitted that she would not be pressing the prayer clause at Paragraph No.7(B).

1. The present writ petition is filed seeking quashing and setting aside the order dated 01.06.2015 qua the petitioner, whereby and wherein the petitioner has been denied the benefits of Selection Grade on the ground that he is not possessing the degree in Mechanical Engineering (M.E.).

2. The brief facts of the case are as under:-

C/SCA/11260/2017 JUDGMENT DATED: 23/11/2021

2.1. The petitioner possesses educational qualification of Bachelor of Engineering (Mechanical) with distinction.

2.2. The petitioner was, after due process of selection through Director of Technical Education, appointed as a Lecturer, Mechanical Engineering, Class-II, on ad hoc basis, in S.S.Engineering College, Bhavnagar (Government Engineering College), in the pay-scale of Rs.2200-4000, vide order dated 25.01.1994 issued by the Education Department. The petitioner had worked in that college from 07.03.1994 to 22.07.1997.

2.3. The petitioner was thereafter, as a result of the selection process, selected and appointed as a Lecturer (Mechanical Engineering) in the pay-scale of Rs.2200-4000, vide order dated 24.06.1997 in Maharaja Sayajirao University of Baroda. The petitioner, after having been relieved from earlier college on 22.07.1997, joined the duty in M.S.University on the very next day i.e. 23.07.1997 without any break. The petitioner, upon completion of his probation period successfully, came to be confirmed in service vide order dated 24.08.1999.

2.4. That the pay-scale of the petitioner while in ad hoc service and regular appointment was same i.e. Rs.2200-4000 (revised Rs.8000- 13500) and hence, pay of the petitioner was fixed protecting the pay received by him last in his ad hoc service.

2.5. In the year 1999, the All India Council for Technical Education (AICTE) recommended revision of pay-scales and service conditions of Teachers of Technical Institutions. Based on such recommendations, the State Government in its Education Department had published a

C/SCA/11260/2017 JUDGMENT DATED: 23/11/2021

Government Resolution dated 20.06.2001 revising the pay-scales of teachers of several institutions falling under the purview of AICTE.

3. Learned advocate Ms.Harshal Pandya appearing for the petitioner has submitted that the institute in which the petitioner is serving falls within the purview of AICTE and as per the norms of the AICTE under the career advancement, a Lecturer, who has completed six years of service after regular appointment and has participated in one orientation course / induction training or industrial training of aggregate duration of eight weeks would be eligible for placement as lecturer (Senior Scale). The petitioner had participated in the training as per norms, his case was considered by the Screening Committee and consequently, he was awarded Senior Scale of Rs.10000-152000 under career advancement scheme w.e.f. 01.01.2002 vide order dated 13.05.2004, after considering ad hoc service from 07.03.1994 to 22.07.1997. She has submitted that the petitioner is also entitled for the selection grade after 5 years of experience as Senior Lecturer / Lecturer (Senior Scale) as per the provisions of condition No.8.3 of the recommendation of AICTE.

4. Learned advocate Ms.Harshal Pandya for the petitioner has submitted that the sole reason for denying the benefit of Selection Grade to the petitioner is of not possessing the educational qualification of M.E. She has submitted that the stand taken by the respondent authority for denying the Selection Grade is ill-conceived in view of the resolution dated 31.12.2012 passed by the Education Department of the State of Gujarat. While placing reliance on the aforesaid resolution, she has submitted that the petitioner, who is appointed prior to 01.01.1996, is entitled for relaxation of the educational qualification of M.E. and accordingly, the Selection Grade is to be conferred to him.

C/SCA/11260/2017 JUDGMENT DATED: 23/11/2021

4.1. Learned advocate Ms.Pandya has further submitted that by the order dated 22.10.2014 passed by the Joint Director of Technical Education, Gandhinagar, various persons, as mentioned in the order, are granted the Selection Grade though they are not possessing the educational qualification of M.E. Further, she has placed reliance on the resolution dated 22.12.2014, wherein and whereby the Education Department has extended the benefit of Senior Selection Grade and ad hoc Lecturer also. Thus, she has submitted that the petitioner cannot be non-suited for the benefit of Selection Grade only for the reason that he is not possessing M.E. degree.

5. Per contra, learned AGP Mr.Adityasinh Jadeja, while placing reliance on the affidavit filed by respondent no.2 has submitted that since the petitioner was made regular on 24.06.1997, he would not be entitled for the Selection Grade in view of the resolution dated 31.12.2012. He has submitted that the benefit of Selection Grade can only be conferred after completion of six years of service in a regular appointment and that too after having conferred the benefit of senior scale. He has submitted that reliance placed on the Government Resolution dated 31.12.2012 is misconceived since the petitioner was regularly appointed in 1997 after cut-off date of 01.01.1996, as mentioned in the resolution. No further submissions are advanced.

6. This Court has given its thoughtful consideration to the submissions advanced by the learned advocates appearing for the respective parties. The list of documents, as pointed out by them are also perused.

7. The impugned order dated 01.06.2015, wherein the name of the petitioner figures at item no.8 in the list of those candidates in whose case

C/SCA/11260/2017 JUDGMENT DATED: 23/11/2021

the Selection Grade is not approved, specifically states that the benefit of Selection Grade is not conferred upon the petitioner on the ground that he is not possessing educational qualification of M.E.. Except that ground nothing is stated in the impugned order. Thus, the sole reason for denying the Selection Grade as per the impugned order is the petitioner is not possessing the M.E. qualification. The respondent authority in his affidavit has made efforts to establish a new reason for denying the Selection Grade to the petitioner on the ground that he was appointed regularly on 24.06.1997 and hence, the reliance is placed on the resolution dated 31.12.2012 by the petitioner in support of his case is misconceived. Thus, the respondent authorities have tried to improve upon their case, which is not permissible in the law.

8. In the case of Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi, the Constitutional Bench of the Supreme Court has held that ".... when a statutory functionary makes an order based on certain grounds, its validly must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise..."

9. Be that as it may, even if the aforesaid contentions or submissions advanced by the respondent-State is accepted as it is, the same will not come to their rescue since it is admitted fact that the senior scale, which was granted to the petitioner with effect from 01.01.2002, is not withdrawn and such benefit is conferred by considering the date of regular appointed on 24.06.1997.

10. At this stage, it would be apposite to refer to the provisions of regulation / condition No.8.3 of AICTE notification. The same reads as under:-

C/SCA/11260/2017 JUDGMENT DATED: 23/11/2021

"8.3 Lecturer (Selection Grade):

A Senior Lecturer/Lecturer (Senior Scale) who has a Master's degree and 5 years experience as senior Lecturer of Lecturer (Senior Scale), and has consistently satisfactory performance appraisal reports will be eligible to be placed as Lecturer (Selection Grade), subject to the recommendation of the Selection Committee."

A bare reading of the condition no.8.3 suggests that a Senior Lecturer / Lecturer (Senior Scale) who has a Master's degree and 5 years experience as a Senior Lecturer of Lecturer (Senior Scale), and has consistently satisfactory performance appraisal reports will be eligible to be placed as Lecturer (Selection Grade). It is not the case of the respondent authorities that the appraisal report of the petitioner is not satisfactory.

11. Thus, the only reason, which is established from the impugned order with regard to denial of the Selection Grade is the petitioner having not possessing the M.E. qualification. At this stage, the reference is to be made to the Government Resolution dated 31.12.2012 issued by the Education Department, State of Gujarat, whereby it is promulgated that in view of the communication of the AICTE, wherein the clarification is issued in the communication dated 10.09.2003 a relaxation shall be given to those employees while conferring the benefit of Selection Grade, who are not holding the educational qualification of M.E. and are appointed before 01.01.1996.

12. A plain and simple reading of the aforesaid resolution will suggest that there is no condition incorporated therein not to extend the benefit of Selection Grade to those employees, who are appointed on "ad hoc basis" prior to 01.01.1996. The petitioner was appointed on ad hoc basis on

C/SCA/11260/2017 JUDGMENT DATED: 23/11/2021

25.01.1997 and thereafter the petitioner was made permanent in the year 1997 by conferring the pay protection and hence, his regularization would relegate back to his original date of appointment i.e. 25.01.1994 since he is already conferred the benefit of Senior Scale considering his regular appointment on 23.07.1997. As a sequel, the petitioner is also entitled to the Selection Grade after completion of 5 years as a Lecturer (Senior Scale) as per the condition no.8.3 of the notification issued by the AICTE.

13. The respondents have not disputed that by various orders the persons, who do not possess M.E. qualification and those, who are working on ad hoc basis are also conferred the benefit of Selection Grade. Thus, the petitioner cannot be discriminated while conferring the benefit of Selection Grade once he is made permanent on the post and is also granted Selection Scale.

14. For the foregoing reasons and the analysis, the present writ petition is allowed. The impugned order dated 01.06.2015 denying the benefit of the Selection Grade qua the petitioner is hereby quashed and set aside.

15. The respondents are directed to confer the Selection Grade after completion of 5 years from 01.01.2002. Necessary orders revising the pay-scale of the petitioner and conferring the same accordingly shall be passed within a period of three months from the date of receipt of the writ of this judgment. Rule is made absolute.

Sd/-

(A. S. SUPEHIA, J) ABHISHEK