Rajeshkumar Maganbhai Dhadiya vs State Of Gujarat
2022 Latest Caselaw 2262 Guj

    C/SCA/6317/2017                                      CAV JUDGMENT DATED: 25/02/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 6317 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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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 ?

========================================================== RAJESHKUMAR MAGANBHAI DHADIYA Versus STATE OF GUJARAT & 2 other(s) ========================================================== Appearance:

MR PREMAL R JOSHI(1327) for the Respondent(s) No. 3

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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

Date : 25/02/2022

CAV JUDGMENT

1. Heard learned advocate Mr. P.A. Jadeja for the petitioner, learned advocate Mr. Premal R. Joshi for respondent no.3 and learned Assistant Government Pleader Mr. K.M.

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Antani for the respondent-State through Video Conference.

2. Rule returnable forthwith. Learned advocate Mr.Premal Joshi waives service of notice of rule on behalf of respondent no.3 and learned Assistant Government Pleader Mr. K.M.Antani waives service of notice of rule on behalf of respondent-State.

3. The petitioner is aggrieved by action of the respondents for not appointing him as Lecturer, Mechanical Engineer, Class-II in Government Polytechnic college, pursuant to advertisement no.80/2013-2014 though the petitioner was selected by Gujarat Public Service Commission (For short "GPSC") on the ground that the petitioner is not possessing the qualification equivalent to Mechanical Engineering.

4. Brief facts of the case are that the petitioner possesses degree of Bachelor of Engineering (Second Class) in the branch of Production Engineering and also the degree of Master of Technology (First Class) in the branch of Mechanical Engineering.

5. The Gujarat Public Service Commission (GPSC) respondent no.3 issued advertisement in September 2013 for recruitment to the post

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of Lecturer in Government Diploma Engineering Colleges called Polytechnics across the State of Gujarat.

6. As the petitioner was eligible for appointment to the post of Lecturer in the subject of Mechanical Engineering, he applied to the same. The petitioner applied as a reserved category candidate and appeared in the preliminary examination conducted on 7.12.2014 and cleared the same successfully.

7. On 30.3.2015 list of successful candidates for document verification was published, and the petitioner submitted all his documents including mark-sheets showing his educational qualifications and thereafter list of those candidates eligible for personal interview was declared on 21.1.2016.

8. The petitioner remained present for personal interview on 18.5.2016. Thereafter the final result of the interview was declared by GPSC on 17.6.2016 wherein, the name of the Petitioner was also included.

9. On 29.7.2016, the Education Department issued a notification whereby all selected candidates were placed under the Commissioner of Technical Education for the purpose of appointment and posting to concerned

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colleges. The name of the petitioner reflected at item no. 216 in the said list.

10. The Commissionerate of Technical Education, Gandhinagar had instructed all the selected candidates to remain present for verification of testimonials and filling up forms for Police Verification and medical certificate, for which the petitioner remained present on 1.9.2016 and completed all formalities.

11. Thereafter all selected candidates received orders of appointment but the petitioner was not given the same for which the petitioner made a written representation on 26.11.2016.

12. On 9.1.2017, a notification came to be published cancelling the appointment of the petitioner by the Education Department of the State on the ground that the petitioner does not possess basic degree in Mechanical Engineering branch.

13. The petitioner has therefore, preferred the present petition challenging such action of the respondent authorities.

14. Learned advocate Mr. P.A. Jadeja for the petitioner submitted that the action of the

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State Government of not appointing the petitioner though selected by GPSC is discriminatory, arbitrary and violative of Articles 14 and 16 of the Constitution of India.

14.1) Learned advocate Mr. Jadeja submitted that the petitioner possesses Bachelor's degree in Production Engineering and he possesses Masters degree in Technology with First Class, and therefore, he possesses the required Educational Qualification for being appointed to the post of Lecturer and before issuance of his appointment order, his mark-sheets and testimonials were verified twice by the authorities and at that time no objection regarding his basic degree was ever raised.

14.2) Learned advocate Mr. Jadeja further submitted that Production Engineering branch is equivalent to Mechanical Engineering branch of Engineering and the petitioner was holding a Masters Degree in the branch of Mechanical Engineering with First Class and hence by no stretch of imagination, it can be said that only candidates holding degree of Mechanical Engineering at Bachelor's level can only be held eligible for the post of Lecturer in Government Polytechnic.

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14.3) Learned advocate Mr. Jadeja submitted that in the recruitment rules also, it is provided that a candidate who is having basic degree in relevant branch would be eligible for appointment and as the Production Engineering is equivalent to Mechanical Engineering, it does become a relevant branch. It was further submitted that the petitioner possesses a Masters Degree in the branch of Mechanical Engineering with First Class which would be sufficient to make him eligible for appointment.

14.4) Learned advocate Mr. Jadeja submitted that after the Government Resolution dated 28.10.2013, another Government Resolution dated 14.6.2016 was issued taking into consideration all earlier Government Resolutions. As per the said Resolution, it is abundantly clear that Mechanical Engineering and Production Engineering are equivalent branches of engineering.

14.5) It was further submitted that the Government Resolution dated 14.6.2016 came to be applied to all pending recruitments which were undergoing and the said Government Resolution also covered the advertisement of the year 2013, to which the present

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petitioner had applied.

14.6) Learned advocate Mr. Jadeja placed reliance on decision of learned Single Judge of this Court (Coram: Hon'ble Mr. Justice J. B. Pardiwala) dated 22.6.2016 in Special Civil Application No. 12204 of 2015 and allied matters and submitted that by a detailed judgment, the Government Resolution dated 14.6.2016 was made applicable to all the recruitments undertaken by the GPSC. Reliance was also placed on decision of this Court (Coram: Hon'ble Mr. Justice N. V. Anjaria) dated 30.11.2016 in Special Civil Application No. 13175 of 2016 and it was submitted that in the said judgment also, the Government Resolution dated 14.6.2016 was made applicable to the candidate facing issues with regards to equivalency of subjects and the Court directed the GPSC to consider the candidature of the petitioner therein, in view of the Resolution dated 14.6.2016, and further directed to consider the petitioner eligible for participation in the process of recruitment.

14.7) Learned advocate Mr. Jadeja submitted that so far as Special Civil Application No. 12204 of 2016 is concerned, the State Government challenged the order of the learned Single Judge by preferring an

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appeal being LPA No.420 of 2017 which came to be disposed of by the Division bench of this Court vide order dated 27.3.2017 confirming the order passed by the learned Single Judge. It was therefore, submitted that in view of order passed by this Court and confirmed by the Division Bench of this Court, on the ground of parity, the petitioner should be granted similar benefit. It was further submitted that the issue of equivalency was now settled and the degree of Production Engineering is considered to be equivalent to Mechanical Engineering as per the Government Resolution dated 14th June, 2016 and therefore, the order of termination of the petitioner dated 9th January, 2017 be quashed and set aside and further the respondents authorities be directed to give appointment to the petitioner on the post of Lecturer, Mechanical Engineering Class-II from the date on which other selected candidates were appointed with all consequential benefits.

15. On the other hand, learned Assistant Government Pleader Mr. K.M. Antani submitted that the petitioner was possessing degree of Production Engineering, which is not equivalent to Mechanical Engineering and therefore, the appointment was not given to the petitioner. It was submitted that condition No.10 of the Notification dated

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29th July, 2016 of the Education department prescribed certain educational qualification, experience etc. for the candidates to be selected by GPSC and the petitioner did not fulfill such condition and therefore, the petitioner was rightly not given the appointment.

16. Learned advocate Mr. Premal Joshi appearing for respondent no.3-Gujarat Public Service Commission submitted that upon the scrutiny of the documents submitted by the petitioner, it came to their knowledge that the petitioner was not possessing requisite educational qualification. It was submitted that the State Government vide Government Resolution dated 28th October, 2013 declared that the requisite qualification for the appointment on the post of lecturer is as shown in Annexure-A of the resolution, but subject to the condition that the basic degree of candidate must be in the relevant discipline at graduate level and the relevant discipline at graduate level for the lecturer, Mechanical Engineering is only Mechanical Engineering and not any other discipline. It was further submitted that the Education Department cancelled the appointment of the petitioner vide order dated 9th January, 2017 and thereafter, respondent no.3 also cancelled his

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candidature by issuing office order dated 22nd February, 2017 and recommended new names in substitution of petitioner and accordingly appointment order is also issued to the new candidates. Therefore, it was submitted that the petition may not be entertained.

17. Having heard the learned advocates for the respective parties, the only controversy arising in this petition is with regard as to whether the petitioner possesses equivalent qualification to that of Mechanical Engineering or not?

18. The advertisement issued by GPSC prescribed qualification for the appointment for post of Lecturer, Mechanical Engineering, Class-II as under :

"Possesses A Bachelor's degree in Engineering or Technology in the relevant branch with first class or equivalent qualification obtained from University recognised by the Govt.

Provided that if the candidate possesses a Master's degree in Engineering or Technology, first class or equivalent is required either at Bachelor's or at Master's level."

19. The qualification prescribed in the advertisement issued by GPSC was on the basis of Government Resolution dated 28.10.2013

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which reads as under :

"After careful consideration, the Government is pleased to decide equivalent graduate and post graduate degree courses in Engineering or Technology as requisite qualification for appointment to the posts of Lecturers, Heads of Departments and Principals in Government polytechnics and Assistant Professors, Associate Professors, Professors and Principals in Government Engineering colleges, as shown in Annexure "A" annexed to this resolution. Subject to the condition that the basic degree of candidate must be in the relevant discipline at graduate level."

20. According to the aforesaid Government Resolution, Annexure-A attached thereto, prescribes requisite equivalent qualification for appointment to the post of Lecturer and as per the qualifications applicable for the post of Lecturer, Mechanical Engineering is provided in column no.3 as Industrial Engineering, Mechanical Engineering and Production Engineering. As the petitioner was not having Mechanical Engineering degree at Graduate level, he was not appointed though selected by GPSC. It is pertinent to note that during the pendency of this petition, the State Government has issued another Government Resolution dated 6.7.2019

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which reads as under :

"Preamble

The commisionerate of Technical Education has made a proposal vide letter referred to (1) above for considering various Graduate and Post Graduate Degree courses in Engineering or Technology as equivalent qualification for appointment to the various teaching posts in Government Polytechnics and Government Engineering Colleges. The matter was under consideration of the Government.

The State Government, from time to time, has declared equivalency of various Graduate and Post Graduate Degree Courses in Engineering or Technology read from serial no. (2) to (10) above. As there is a vast expansion in the field of technical education and increased number of new Graduate and Post Graduate Courses and as AICTE, New Delhi has notified major/relevant branches for major/core branch. It was under active consideration of the Government to publish consolidated resolution for the equivalent Graduate and Post Graduate Degree Courses in Engineering or Technology as requisite qualifications for appointment to various teaching posts in Government Polytechnics and Government Engineering Collages.

Resolution:-

After careful consideration all the

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previous Government Resolutions in this regards read from serial No.(2) to (10) above and AICTE, New Delhi Notification serial No.(11) above, the Government is pleased to decide equivalent Graduate and Post Graduate Degree courses in Engineering or Technology as requisite qualification for appointment to the post of Lecturers, Heads of Departments and Principals in Government Polytechnics and Assistant Professors, Associate Professors, Professors and Principals in Government Engineering Colleges, as shown in Annexure-A annexed to this resolution. Consequently, the existing Government Resolutions in this regard read from serial No.(2)to (10) above shall be treated as cancelled.

In the Annexure-A. column 3 shows basic degree branch (B.E/B.Tech) in Engineering or Technology and Column 4 shows appropriate/relevant/equivalent degree branch (B.E/B.Tech) in Engineering or Technology for the post mentioned in column 2. While column 5 refers to the appropriate/relevant/ equivalent branch of M.E/M.Tech. degree course in Engineering or Technology.

It is also decided that, after publishing this resolution, any addition or deletion of branch from equivalency made by All India Council for Technical Education (AICTE), New Delhi by Gazette Notification shall be automatically appended to this resolution. Moreover, this resolution shall be applicable from the date of issue to all the forthcoming advertisement for recruitment purpose."

21. According to the aforesaid Government Resolution, Annexure-A thereto prescribes

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that M. Tech is a relevant qualification for the post of Lecturer, Mechanical Engineering.

22. In view of above clarification made by the Government, reliance was placed by the petitioner on the order of this Court passed in Special Civil Application No.12204/2015 and allied matters filed by similarly situated candidates claiming similar benefits except that their candidature was pursuant to different advertisements, wherein it is held as under:

"6. In such circumstances referred to above, I hold that the Government Resolution dated 14th June, 2016 issued by the State Government should be made applicable in the cases of the writ applicants and if they are covered by the Government Resolution so far as the equivalency of various graduate and postgraduate degree courses is concerned, then they may be considered for being appointed on the posts in question. Of course, it goes without saying that they should also fulfill the other requisite requirements in accordance with the advertisement."

23. The above decision was confirmed by the Division Bench in Letters Patent Appeal No.212/2017 and other allied matters wherein the Division Bench held as under :

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              "9. We        have         heard        learned
              counsel     for     both      the sides     and
              perused    the     material       on    record.
              When the     captioned      petitions      were
              filed      before        the learned single
              Judge,   the     main    issue     related   to

equivalence of the Degrees. However, before the impugned order could be passed by the learned single Judge, the appellant State came up with the Government Resolution dated 14.06.2016, by which the issue of equivalence of Degrees came to be answered. Therefore, the only question which the learned single Judge was required to consider was whether the petitioners were entitled for the benefits of Government Resolution dated 14.06.2016 or not. Before the learned single Judge, the respondent authority had taken the stand that the case of the petitioners could not be considered since they had applied pursuant to the Advertisements published in the years 2013 and 2014 whereas, the Government Resolution in question came into effect only on 14.06.2016.

10. It appears that in pursuance of the above Government Resolution, the respondent Commission issued a Circular on 17.06.2016 stating that the Government Resolution dated 14.06.2016 would be applicable to Advertisements published in the year 2015-2016, including those cases, where the recruitment process was still pending.

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              Earlier,      the     petitioners       were
              found to be ineligible     for    want    of
              equivalent      degree. However,       after
              the     Government     Resolution      dated
              14.06.2016     was   issued,    the     said
              dispute    was resolved.

              11. In     the     impugned     order,     the
              learned       single Judge      has recorded
              that the petitioners deserve to             be
              granted         benefits         of        the

Government Resolution dated 14.06.2016 since they possessed the requisite qualification as per the Government Resolution dated 14.06.2016 and that, earlier, they were refused to be interviewed by the authority only on the ground of not possessing the required qualification. Considering the peculiar facts and circumstances of the case, we are of the view that the learned single Judge has not committed any error while ordering retrospective application of the Government Resolution dated 14.06.2016 to the case of the petitioners. We are in complete agreement with the reasonings given by the learned single Judge in the impugned order and hence, find no reasons to entertain these appeals."

24. This Court (Coram: Hon'ble Mr. Justice N.V. Anjaria) in case of Roshniben Abherajbjai Chaudhari v. Gujarat Public Service Commission and other by judgment dated 30.11.2016 in Special Civil Application

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No.13175/2016 has also following the aforesaid decision of Special Civil Application No.12204/2015 has held as under :

"6.1 Even as equivalence is recognised which has lifted the debility with which the petitioner was attached for the purpose of her candidature, the interviews are still not announced and are awaited. Even then the petitioner is denied the benefit by not applying Resolution dated 14th June, 2016.

6.2 A situation akin in principle arose before the Apex Court in Punjab University Vs Subhash Chander [AIR 1984 SC 1415] wherein the student was pursuing studies of M.B.B.S. Course since 1965 and appeared in the final M.B.B.S. Examination in the year 1974.

In the meantime, in the year 1970, a Regulation was amended whereby the percentage of grace marks was reduced for M.B.B.S. candidates. It was held that it was the amended Regulation which would apply in case of the petitioner as the same was in force at the time when occasion arose for the petitioner to be treated for the purpose of giving grace marks. The Supreme Court held that new Regulation as amended would apply. In the same way, there is no reason as to why equivalence prescription which is introduced in the interregnum before the petitioner is to be considered for the process of selection for interview, that she should not be denied the

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candidature.

6.3 This situation is peculiar in itself and cannot be equated with a case were eligibility gets changed or that a candidate acquires eligibility or requisite qualification after the last date of advertisement. It is by the act of the respondents themselves that the degree which was held by the petitioner was accepted as equivalent in the meantime. In the facts and circumstances of the case, it cannot be said that petitioner was not holding the degree. The degree holding by the petitioner was in the same discipline, however its equivalence was not being accepted by the Public Service Commission when the petitioner filled up the application form. The equivalence was recognised after filling up the form and before the candidature of the petitioner is further processed and interviews are hold. When the equivalence has now been accepted and the petitioner is to be the aspiring candidate on the basis of the recognised degree, she cannot be denied candidature. The petitioner could validly claim right to be considered and right to be called at the interview."

25. Reliance placed on behalf of the petitioner on the decision of the Apex Court in case of State of Andhra Pradesh vs. Shaikh Mahibulla Sharief (supra)is also relevant in facts of the case wherein the Apex Court after considering that the degree issued by

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Open University as equivalent to any other degree in respect of selection conducted in the year 2003 by the State of Andhra Pradesh, it was held that if Government had considered degree issued by Open University as equivalent to any other degree and permitted appointment of similarly situated persons, there is no reason why the respondent can be said to be ineligible. The Apex Court was considering A.P. Direct Recruitment for the post of Teachers (Scheme of Selection) Rules, 2012 wherein post of Language Pandit (Telugu) Grade II was to be filled in and the respondent applicant before the Apex Court was selected for said post though he was possessing B.A. with History, Economics and Political Science and B.Ed. With Telugu and Social Studies as methodology subjects in the year 2005 and candidate also passed BA in Telugu literature as a single subject from Dr. B.R. Ambedkar Open University, Hyderabad and completed MA in Telugu in distance mode. The Apex court in such facts held as under :

"6. The appointment to the post of Language Pandit (Telugu) is governed by the Andhra Pradesh Direct Recruitment for the post of Teachers (Scheme of Selection) Rules, 2012. Rule 4(2) (iii)

(a) contemplates that the educational qualifications for appointment to the above post is a bachelor's degree in Telugu as main subject or one of the

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three equal optional subjects or bachelor's degree in oriental language in Telugu, (BOL) or its equivalent or a post graduate degree in Telugu and B.Ed. with Telugu as methodology or Telugu Pandit Training or its equivalent. The Respondent passed BA with History, Economics and Political Science and holds a bachelor's degree in Telugu as a single subject from Dr. B.R. Ambedkar Open University. He also has B.Ed. with Telugu as methodology. The question that arises for consideration in this case is whether the said bachelor's degree in Telugu literature as a single subject from Dr. B.R. Ambedkar Open University is equivalent to a bachelor's degree with Telugu from other Universities.

Reliance is placed by Ms.Prerna Singh, counsel for the Appellant-State on memo No.18103/Ser.VI-1/2005 dated 03.10.2005 issued by the Government of Andhra Pradesh. The said memo pertains to a qualification issued with regard to transfer of teachers/officers and rationalisation of schools in respect of single subject certificate course of Dr. B.R. Ambedkar Open University. As per para 7 of the said memo, the certificate issued by Dr. B.R. Ambedkar Open University after completion of a single subject course was not a degree and that the single subject certificate holders of Dr. B.R. Ambedkar Open University were not eligible for promotion to the post of School Assistant. As the degree possessed by the Respondent was not equivalent to a degree from the other

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Universities as prescribed by the Rules, the Counsel for the Appellant-State submitted that the Respondent was not eligible for appointment to the post of Language Pandit (Telugu). Mr. V.V.S. Rao, learned Senior Counsel appearing for the Respondent referred to G.O.Rt.No.556, Education (SE.SER.VII) Department dated 04.10.2005 by which the Government permitted the Director, School Education, Andhra Pradesh, Hyderabad to appoint candidates who have a bachelor's degree and a B.Ed. degree and have acquired a single subject certificate in the relevant subject from Dr. B.R. Ambedkar Open University. The said orders were made applicable for DSC-2003 candidates only. He also referred to a memo dated 24.05.2008 of the Government of Andhra Pradesh by which the Director of School Education, Hyderabad was permitted to appoint selected candidates of DSC-2003 who have acquired single subject (English) certificate for the post of School Assistant (English) as per their merit in the notified vacancies. The learned Senior Counsel submitted that the memo dated 03.10.2005 is not applicable to fresh appointments as it relates to rationalisation of schools and transfer of teachers.

7. We are of the opinion that the judgment of the High Court does not warrant interference. Admittedly, the Respondent possesses BA with History, Economics and Political Science and B.Ed. with Telugu and Social Studies as

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methodology subjects. He also possesses BA in Telugu literature as a single subject from Dr. B.R. Ambedkar Open University. The question that falls for our consideration is whether the qualification of BA Telugu literature as a single subject from Dr. B.R. Ambedkar Open University can be considered as equivalent to bachelor's degree with Telugu as main subject. We are in agreement with Mr. Rao that the memo dated 03.10.2005 is a clarification pertaining to transfer of teachers/officers and rationalisation of schools. The directions given by the Government to the Director of School Education which are referred to supra would clearly show that the degree issued by Dr. B.R. Ambedkar Open University was considered to be equivalent to any other degree in respect of a selection conducted in the year 2003. If the Government has considered the degree issued by the Dr. B.R. Ambedkar Open University as equivalent to any other degree for DSC- 2003 and permitted appointment of similarly situated persons, there is no reason why the Respondent can be said to be ineligible. There is nothing in the Rules which makes a degree issued by Dr. B.R. Ambedkar Open University which is recognised by the University Grants Commission (UGC) from being considered as equivalent to any other degree."

26. Thus taking into consideration the above

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discussion, following aspects can be culled out :

i) That the petitioner was holding degree of M. Tech which is equivalent to Mechanical Engineering and as per Government Resolution dated 6.7.2019, the same is required to be made applicable to the case of the petitioner and the petitioner is therefore, required to be appointed as Lecturer, Mechanical Engineering, Class-II.

ii)That similarly situated persons are appointed by the State Government in the previous recruitment and therefore, the petitioner cannot be denied the appointment.

27. In view of the foregoing reasons, the decision reflected in the impugned notification dated 9th January, 2017 issued by the Education department of the State of Gujarat cannot be sustained and is hereby quashed and set aside. As a result, the respondents are directed to appoint the petitioner as Lecturer, Mechanical Engineering, Class-II in any Government Engineering college pursuant to his selection by GPSC considering his qualification of M. Tech equivalent to that of Mechanical Engineering as per Government Resolution

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dated 6.7.2019.

28. As the other candidates who were selected by GPSC are appointed by the State Government on 27.10.2016, the benefit of notional seniority is also required to be granted to the petitioner with effect from 27.10.2016 and is deemed to have been appointed with effect from 27.10.2016. The respondents are directed to issue the appointment order to the petitioner with effect from 27.10.2016 with a clarification that the period from 27.10.2016 till the petitioner assumes the charge as Lecturer, Mechanical Engineer, Class-II in any other Government college shall be treated as notional and the petitioner shall not be entitled to any salary for such period but the said period shall be considered for the purpose of seniority of the petitioner only. Such exercise shall be completed within eight weeks from the date of receipt of copy of this judgment.

29. Petition is accordingly partly allowed. Rule is made absolute to the aforesaid extent. No order as to costs.

(BHARGAV D. KARIA, J) RAGHUNATH R NAIR