Jitesh Kishorchandra Khetiya vs Commissioner Of Higher Education
2022 Latest Caselaw 2316 Guj

    C/SCA/20072/2019                                JUDGMENT DATED: 28/02/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 20072 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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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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                         JITESH KISHORCHANDRA KHETIYA
                                     Versus
                       COMMISSIONER OF HIGHER EDUCATION
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Appearance:
MS MAMTA R VYAS(994) for the Petitioner(s) No. 1
MS. SURBHI BHATI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR AR THACKER(888) for the Respondent(s) No. 4
MR PREMAL S RACHH(3297) for the Respondent(s) No. 2,3
SHIVANG A THACKER(7424) for the Respondent(s) No. 4
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                                Date : 28/02/2022

                                ORAL JUDGMENT

1 Heard Ms.Mamta Vyas, learned counsel for the petitioner,

Ms.Surbhi Bhati, learned Assistant Government Pleader for respondent

C/SCA/20072/2019 JUDGMENT DATED: 28/02/2022

No.1, Mr.Premal Rachh, learned advocate for respondent Nos. 2 & 3 and

Mr.Shivang Thacker, learned advocate for respondent No.4.

2 Rule returnable forthwith. Learned counsels appearing for the

respective respondents waives service of rule. With the consent of

learned advocates, taken up for final hearing today.

3 The petitioner prays that the action of the respondent in issuing a

fresh advertisement for the post of Principal dated 19.10.2019 be set aside

and the petitioner's appointment as Principal be effectively made from

04.08.2017. Facts in brief would indicate that the petitioner passed the

qualification of B.Com, M.Com and Ph.D. The petitioner was appointed

as a Lecturer in M.P.Shah Commerce College, Jamnagar where he

worked from June 1993 to April 1998. He was appointed as a lecturer on

01.01.1999 at Shri M.J.Goriya College, Jamkhambhadiya in 1999 and

was entrusted with the duty of co-ordinator at Babasaheb Open

University.

4 Advertisement was issued for the post of Principal in Shri

M.P.Shah, Municipal Commerce College, respondent No.3, which was a

grant-in-aid college.

4.1 The petitioner applied and was issued a call letter on 20.12.2016.

C/SCA/20072/2019 JUDGMENT DATED: 28/02/2022

After a duly constituted Committee selected the petitioner, the proposal

was sent for approval to the State Government. The Mandal asked for

certain clarifications pursuant to the letter of the Commissioner which the

petitioner replied on 06.03.2017.

4.2 It appears that on 17.04.2017, initially the approval was not granted

by the State. However, on recommendation by communications dated

03.08.2017 and 05.08.2017, approval to the appointment of the petitioner

to the post of Principal with the respondent No.3 college was granted.

One of the conditions of the approval was that the petitioner should have

obtained a grade of Associate Professor and also should have undergone

orientation and refreshers course.

4.3 It is the case of the petitioner that he had undergone the orientation

and the refreshers course while having waited for the institution to

appoint him. That is evident from the letter dated 13.01.2018 to the

Commissioner of Higher Education. Despite this requisition having been

fulfilled, the respondent No.3 was not appointing the petitioner. The stand

of the State was reflected in the communication dated 10.04.2018 that

there was no need for a new NOC in view of the appointment having

been approved of the petitioner.

5 Mr.Premal Rachh, learned counsel for the institution would submit

that once the State had initially rejected the approval by an order of

C/SCA/20072/2019 JUDGMENT DATED: 28/02/2022

17.04.2017 on the ground of the petitioner having completed orientation

and refreshers course and having attained the grade of Associate

Professor, the institution was apprehensive in appointing the petitioner at

that relevant point of time reasonably believing that if the appointment

was made where these two qualifications were wanting, the institution

would have to bear the financial burden. It appears that once the NOC

was initially cancelled, fresh advertisement was issued which is also a

subject matter of challenge.

6 The State, through Ms.Surbhi Bhati, learned AGP, would submit

that in principle they had never objected to the appointment of the

petitioner and in fact, as is evident from the letter dated 03.08.2017, that

they had approved the petitioner's appointment.

7 Considering the fact that the State had in principle approved the

appointment of the petitioner on 03.08.2017 and is also evident from the

letter dated 13.01.2018 of the petitioner that the petitioner had in fact

complied with the terms of the appointment which was approved

inasmuch as that he had undergone the refreshers course, the orientation

course and had the grade of Associate Professor, there was no reason for

the respondent No.3 institution to withheld his appointment.

     C/SCA/20072/2019                               JUDGMENT DATED: 28/02/2022



8       Accordingly, the action of the respondent in not appointing the

petitioner to the post of Principal pursuant to the advertisement and the

approval dated 03.08.2017 is misconceived. The respondents are directed

to appoint the petitioner on the post of Principal in accordance with the

approval dated 03.08.2017 within a period of four weeks from the date of

receipt of copy of this order.

On such appointment being made, the petitioner shall be entitled to

count the period from 24.10.2019 i.e. the date of filing of the petition till

the actual date of appointment as notional for the benefits of service as

Principal. The petition is allowed, accordingly. Rule is made absolute to

the above extent.

(BIREN VAISHNAV, J) Bimal