Gujarat High Court
Hiteshkumar Ramanbhai Patel vs State Of Gujarat on 7 October, 2022
Bench: Biren Vaishnav
C/SCA/18352/2019 CAV JUDGMENT DATED: 07/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18352 of 2019
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of
2020
In R/SPECIAL CIVIL APPLICATION NO. 18352 of 2019
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 18352 of 2019
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 18352 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 6771 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 16165 of 2019
With
CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 16165 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 16396 of 2019
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of
2020
In R/SPECIAL CIVIL APPLICATION NO. 16396 of 2019
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 16396 of 2019
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 3 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 16396 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 17521 of 2019
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of
2020
In R/SPECIAL CIVIL APPLICATION NO. 17521 of 2019
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 17521 of 2019
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CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 17521 of 2019
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With
R/SPECIAL CIVIL APPLICATION NO. 17467 of 2019
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CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of
2020
In R/SPECIAL CIVIL APPLICATION NO. 17467 of 2019
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 17467 of 2019
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 17467 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 17792 of 2019
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of
2020
In R/SPECIAL CIVIL APPLICATION NO. 17792 of 2019
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 17792 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 17791 of 2019
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of
2020
In R/SPECIAL CIVIL APPLICATION NO. 17791 of 2019
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 17791 of 2019
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 17791 of 2019
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R/SPECIAL CIVIL APPLICATION NO. 18485 of 2019
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of
2020
In R/SPECIAL CIVIL APPLICATION NO. 18485 of 2019
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2022
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R/SPECIAL CIVIL APPLICATION NO. 18921 of 2019
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CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of
2020
In R/SPECIAL CIVIL APPLICATION NO. 18921 of 2019
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 18921 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 18831 of 2019
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CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 18831 of 2019
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R/SPECIAL CIVIL APPLICATION NO. 15023 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 15183 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 16013 of 2020
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R/SPECIAL CIVIL APPLICATION NO. 3253 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 5249 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 7045 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 6899 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 7038 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 7044 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 10943 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 16676 of 2020
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CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 2670 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 14695 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 14694 of 2019
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R/SPECIAL CIVIL APPLICATION NO. 5982 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 6223 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 8479 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 9220 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 9467 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 10427 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 10555 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 9456 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
================================================================
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 ?
================================================================
HITESHKUMAR RAMANBHAI PATEL
Versus
STATE OF GUJARAT
================================================================
Appearance:
MR SI NANAVATI, SR COUNSEL WITH MR VANDAN BAXI, MS PRACHITI V.
C/SCA/18352/2019 CAV JUDGMENT DATED: 07/10/2022
SHAH FOR NANAVATI & NANAVATI, MR DC DAVE, SR COUNSEL WITH MR
JIGAR PATEL, MR UTPAL PANCHAL, MR VIRAT POPAT, MR. EKRAMA H
QURESHI, MR SP MAJMUDAR, MR PA JADEJA, MR ULLASH N GOHIL, MR
RAJENDRA PATEL, MR PRERAK P OZA for the Petitioner(s) No. 1,2,3 in the
respective petitions.
MR RUTVIJ R PATEL, MR CHAITANYA S. JOSHI, MR ALKESH SHAH, for
the Respondent(s) No. 2, 3, 4 in the respective petitions.
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1,2 in all the
petitions.
================================================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 07/10/2022
1. Rule returnable forthwith. Learned Assistant
Government Pleader Mr. Utkarsh Sharma as well as
respective learned advocates waive service of notice of
Rule for the respective respondents in all these
petitions.
2. With the consent of the learned advocates for the
respective parties, all these petitions alongwith Civil
Applications were taken up for final hearing.
3. All these petitions except two i.e. SCA Nos.2271 of
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2021 and 2670 of 2021 have been filed by Lecturers
and / or Assistant Professors in Government
Engineering Colleges and Government Polytechnics.
They are serving as on an ad hoc basis / contractual
basis in various branches of Engineering, namely;
Electrical, Mechanical Engineering, Electronics and
Communications etc.
4. Pursuant to advertisement given by the Gujarat Public
Service Commission (for short, `the GPSC') in the years
2015-16 for 111 posts of Lecturers and 87 posts of
Assistant Professors, the GPSC declared the results on
13.6.2019 declaring 111 candidates as successful to be
recommended for appointment. Similarly, for the post
of Assistant Professors, 87 candidates were
recommended by the GPSC.
5. As a result of such recommendation, for appointment
of regularly selected GPSC candidates, the ad hoc
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Assistant Professors and Lecturers respectively faced
the prospects of termination. Some of them either were
terminated whereas some of them in the petitions so
filed by such ad hoc Lecturers / Assistant Professors are
continued in service because of the orders of status
quo granted in these petitions.
SCA No.5982 of 2021, 10427 & 2021 and other
allied matters:
6. These petitions have been filed by the petitioners for a
direction to the respondents to appoint the petitioners
to the posts of Lecturers, Mechanical Engineering,
G.E.S., Class-II. A further prayer is made to quash and
set aside the GR dated 27.07.2020 and also to quash
and set aside the revised final result dated 24.05.2021
by upholding the final result issued on 30.06.2019.
7. It is the case of the petitioners that the Gujarat Public
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Service Commission issued an advertisement in the
year 2015-16 inviting applications from eligible
candidates to the posts of Lecturers, Mechanical
Engineering, Government Polytechnic Class-II for 111
vacant posts. The applications were to be submitted
between 24.11.2015 and 09.12.2015. The preliminary
examinations were held on 23.10.2016 of which the
results were declared on 23.05.2017. On 25.01.2018,
the respondents decided to stop further process of
recruitment due to the likelihood of change in policy by
AICTE from 2018-19. That decision was reversed on
20.08.2018 whereby the respondent No.2 decided to
further the process of recruitment which was stopped.
8. It is the case of the petitioners that the AICTE in July,
2018 issued a Public Notice clearly directing that the
State Government and the Universities may ensure
that downsizing of the faculties due to revised faculties
student ratio should not be done by any AICTE
C/SCA/18352/2019 CAV JUDGMENT DATED: 07/10/2022
approved institution.
9. On 11.01.2019, the State issued a communication
directing the GPSC to resume the recruitment process
wherein it was mentioned that there will be no
reduction to the declared 111 vacancy positions. A
notification to that effect was issued on 24.01.2019. On
16.04.2019, a list of candidates who were eligible to
take part in the interview was released and on
06.05.2019, interview was scheduled for 344 numbers
of qualified candidates, being three times the number
of 111 vacant posts. It is the case of the petitioners
that they participated in the interview which was held
from 24.05.2019 to 07.06.2019. The final result was
declared on 30.06.2019 and the petitioners were
declared as successful candidates out of 344
candidates. They were accordingly recommended for
appointments. It is the case of the petitioners that on
03.08.2019 a notification was issued calling the
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petitioners for document verification. Since after their
document verification, no appointment orders were
issued, they approached the State and they were found
that due to the pendency of Special Civil Application
No.16165 of 2019 and the stay operating therein, the
appointment orders were not being issued. The
petitioners approached the Court by filing Civil
Applications for joining parties and, thereafter for
vacating stay and this Court by an order dated
10.02.2020 modified the interim order permitting the
State authorities to grant appointment to the
petitioners. Appointment orders were issued in case of
other branches i.e. I.T. Engineering and Computer
Engineering, but for the post of Lecturers in Mechanical
Engineering in the Government Polytechnics, no
appointment orders were issued. After the COVID lock-
down and during there to, the State Government came
out with a Resolution dated 07.02.2022 for reduction in
student intake / seats despite knowing the fact that
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this would result in the reduction of sanctioned
vacancies of 269 positions in the posts of Lecturers. It
is the case of the petitioners that the Director of
Technical Education filed an undertaking for
compliance addressed to the AICTE on 02.03.2020 that
the Regular posting of 268 Lecturers are under process
for final appointment, which included the 111
sanctioned vacancies of Lecturers in Mechanical
Engineering. Though the petitioners were still not
appointed, some of them preferred Special Civil
Application No.5982 of 2021.
10. It is the case of the petitioners that by the impugned
Resolution dated 27.07.2020, the State reduced the
originally sanctioned 571 Lecturers of Mechanical
Engineering to 450 posts. As a result of this reduction,
a revised final result dated 24.05.2021 was issued
wherein only 24 candidates had been recommended
for appointment to the posts of Lecturers in Mechanical
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Engineering. Despite the petitioners having been
earlier recommended after the completion of selection
process they have, by the notification of revised result
dated 24.05.2021 have been declared unsuccessful.
11. The petitioners of Special Civil Application Nos.2670 of
2021 & 2271 of 2021 despite their names being on the
select list of in the first 24 for the Electrical Engineering
Branch and 13 for the EC Branch could not be
appointed on the ground that since these posts are
occupied by ad hoc Assistant Professors / Lecturers and
as a result of the status quo orders operating in the
petitions at the hand of this ad hoc Lecturers /
Professors, the appointments could not be made.
Hence, the two petitions by regularly selected
candidates requesting the Court that the status quo
orders in the petitions filed by these ad hoc Lecturers /
Professors be vacated. In the petitions filed by this ad
hoc staff, the State also has moved Civil Applications
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for vacating of stay so as to operate the list. In such
petitions, orders have been passed in the earlier round
of vacating the order of status quo and also if there are
sufficient number of posts available where the ad hoc
staff can be continued such petitioners be continued.
The orders dated 25.9.2019 passed in SCA Nos.16165
of 2019 and allied matters, dated 10.2.2020 passed in
SCA No.16165 of 2019 with CA No.2 of 2019 and dated
17.9.2020 passed in Civil Application (For Vacating
Interim Relief) No.1 of 2020 in SCA No.16169 of 2019
read as under:
Order dated 25.9.2019 passed in SCA
No.16165/2019 and allied matters:
Heard learned advocate Mr. Ekrama H. Qureshi
for the petitioners and learned Assistant
Government Pleader Mr. Manan Mehta for the
respondent State.
1.1 It was stated by learned advocate for
the petitioners that the facts of the
present case reflect as the same are that
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of Special Civil Application No.13390 of 2019.
2. Notice returnable on 23.10.2019.
3. It was stated by learned advocate for
the petitioners that the petitioners are in
service, whereas, on the other hand,
learned Assistant Government Pleader orally
pointed out that the petitioners were
employed until the availability of regularly
selected candidates from the Gujarat Public
Service Commission, and that the regularly
selected candidates were appointed.
4. It is directed by way of adinterim relief that the
status quo as on today shall be maintained.
5. The respondents shall file AffidavitinReply
pointing out the status of the appointment
or regularly selected candidates by the Gujarat
Public Service Commission.
Direct service is permitted."
Order dated 10.2.2020 passed in SCA No.16165
of 2019 with CA No.2 of 2019:
ORDER IN CIVIL APPLICATION:
"1. This application is filed by the applicants for
vacating the interim relief already granted by this
Court vide order dated 25.09.2019 in the main
matter being Special Civil Application No.16165 of
2019.
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2. The original petitioners who were working as
adhoc lecturers have approached this Court by
filing Special Civil Application No. 16165 of 2019.
On 25.11.2019, this Court allowed the present
applicants to be impleaded as party respondents
in the present case. The applicants have now
prayed that the interim relief granted vide order
dated 25.09.2019 which reads as under be
vacated.
"Heard learned advocate Mr.Ekrama H.
Qureshi for the petitioners and learned
Assistant Government Pleader Mr. Manan
Mehta for the respondent State.
1.1 It was stated by learned advocate for the
petitioners that the facts of the present case
reflect as the same are that of Special Civil
Application No.13390 of 2019.
2. Notice returnable on 23.10.2019.
3. It was stated by learned advocate for the
petitioners that the petitioners are in
service, whereas, on the other hand, learned
Assistant Government Pleader orally pointed
out that the petitioners were employed until
the availability of regularly selected
candidates from the Gujarat Public Service
Commission, and that the regularly selected
candidates were appointed.
4. It is directed by way of ad-interim relief
that the status-quo as on today shall be
maintained.
5. The respondents shall file Affidavit-in-
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Reply pointing out the status of the
appointment or regularly selected
candidates by the Gujarat Public Service
Commission.
Direct service is permitted."
3. It is the case of the applicants that by virtue of
this interim relief, the applicants of this
application who are regularly selected candidates
cannot take over on the post on which they are
appointed even after having undergone process
of selection and declaration of results. An
affidavit-in-reply has been filed by the original
petitioners also.
4. Having gone through the records of the case
and having heard learned advocates appearing
for the respective parties, the ad-interim relief
granted by this Court is modified to the extent
that it shall be open to the State Government /
GPSC to appoint the present applicants. It is
clarified that the State Government /
Commissioner of Technical Education can appoint
the present applicants, however, in order to see
that the original petitioners do not suffer
adversity, it shall be open to the State
Government to accommodate them in accordance
with law on available vacant posts considering
their seniority. Application is allowed to the
aforesaid extent. Direct service is permitted.
ORDER IN SPECIAL CIVIL APPLICATION:
Rule, returnable on 15.6.2020."
C/SCA/18352/2019 CAV JUDGMENT DATED: 07/10/2022
Order dated 17.9.2020 passed in Civil Application
(For Vacating Interim Relief) No.1 of 2020 in SCA
No.16169 of 2019:
"The State is before this in the application
seeking vacation of stay granted by this court by
order dated 25.09.2019 so as to enable the State
to issue appointment orders in favour of the
regularly selected GPSC candidates.
Learned Assistant Government Pleader has
invited attention of this court to the above-
referred order as also the order dated 10.02.2020
rendered in Special Civil Application No. 16165 of
2019 with Civil Application No. 2 of 2019 whereby
the similar relief as operating in this petition
came to be modified. Special Civil Application No.
16165 of 2019 is the component of this group.
Learned counsel Mr. Qureshi opposed this
application while relying upon the order dated
09.09.2020 rendered in Special Civil Application
No. 18831 of 2019 and submitted that the court
found that by the last mentioned order only
service conditions of the petitioner of that case
were protected and thus no necessity of vacation
of interim relief was found. According to learned
counsel Mr. Qureshi the said order is required to
be applied to the facts of this case as well.
It appears that the original petitioners are not
regularly selected candidates and now the regular
selected candidates through GPSC are available
and they are awaiting appointment but for
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injunction in this petition. By order in Special Civil
Application No. 16165 of 2019 (Mahendrakumar
Chandubhai Patel v. State of Gujarat) this court
passed the following order on 10.02.2020.
"4. Having gone through the records of the
case and having heard learned advocates
appearing for the respective parties, the ad-
interim relief granted by this court is
modified to the extent that it shall be open
to the State Government/GPSC to appoint
the present applicants. It is clarified that the
State Government/Commissioner of
Technical Education can appoint the present
applicants, however in order to see that the
original petitioners do not suffer adversity, it
shall be open to the State Government to
accommodate them in accordance with law
on available vacant posts considering their
seniority. Application is allowed to the
aforesaid extent. Direct service is
permitted."
In the opinion of this court, the case is made out
for the similar order as in Special Civil Application
No. 16165 of 2019. Accordingly ad-interim relief
granted by order dated 25.09.2019 is modified to
the extent that it shall be open for the State
Government/GPSC to appoint the selected
candidates. It is clarified that the applicants would
make such appointment, however, in order to
ensure that the original petitioners do not suffer
adversity, it shall be open for the State to
accommodate them in accordance with law on
available vacant posts considering their seniority.
The application is allowed to the above extent.
Direct service is permitted."
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12. Pending these petitions, at the hands of ad hoc
Lecturers / Professors, the State Government issued 3
Government Resolutions dated 7.2.2020, 29.2.2020
and 27.7.2020 by which the State reduced the number
of intake of students in Government Engineering
Colleges and Institutes. Reduction in intake of students
and change in the ratio of student faculty ratio, from
1:20 from 1:25 for Diploma Colleges and 1:20 from
1:15 for a Degree Engineering Colleges has resulted in
a situation where the faculty needed for such branches
has been reduced and there is a decrease in a number
of sanctioned posts. These Resolutions, in the
perception of this ad hoc employees has directly
prejudiced their rights to continue in service. On such
appointments, in addition to the GPSC regularly
selected candidates waiting at their door step to take
over from such ad hoc employees. The ad hoc
employees therefore in the petitions so filed and in
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some of them by subsequent amendments have
challenged these Government Resolutions.
13. Mr. S. P. Majmudar, Mr. Ekrama H. Qureshi and Mr. P. A.
Jadeja, learned counsels have essentially made
submissions on behalf of these ad hoc Lecturers /
Assistant Professors challenging their termination and /
or expected discontinuance from their services based
on these Government Resolutions.
* Mr. Majmudar, learned counsel assisted by Mr.
Ullash N. Gohil, learned advocate in the respective
petitions would assail these Government Resolutions
on the following grounds:
(A) Mr. Majmudar would submit that the
reduction in the student intake in the impugned
Resolution dated 07.02.2020 has been carried out
without considering the actual data of the past
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five years. The only data that is considered for
reducing the intake and closure of various
branches for admission has been done despite
there being substantial admissions in respective
colleges for the past five years.
(B) Mr. Majmudar would rely on the
Resolution dated 18.06.2018 of the State and
submit that there was restructuring already done
of the required sanctioned posts due to the new
guidelines of the AICTE of the 04.01.2016. He
would submit that despite a Public Notice by the
AICTE not to downsize teaching posts due to
revision of student faculty ratio, the State
Government by passing the Resolutions has
violated the instructions given by AICTE. He would
submit that the State Government has not given
any information to the AICTE. Mr. Majmudar would
further submit that the Director of Technical
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Education had sent a proposal for the purpose of
reduction of seats in the academic calendar year
2020-21 based on which the Resolution dated
7.2.2020 was passed. The claim of the State is
that they have considered the records of the past
3-4 years and the proposal itself states that there
are total 8970 seats sanctioned for degree
Engineering Colleges and if 25% of EWS seats are
added, the figure would be 11215.
(C) Mr. Majmudar would further submit that
while reducing the student teacher ratio and
consequential reduction in sanctioned posts the
State has not considered students pertaining to
EWS category, Diploma to Degree category and
Tuition waiver fees category. He would submit
that the fact that some of the Lecturers even after
termination are being invited by the Colleges as
visiting faculty indicates that there is considerable
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shortage of faculties.
(D) Mr. Majmudar would submit that
passing of such Resolutions is over reaching a
process and the authority of the AICTE and
directly in violation of the AICTE Act, 1987. He
would rely on Section 10 of the Act and submit
that it is the duty of the council to lay down norms
and standard for courses, staff pattern etc. and
provide guidelines for admission of students to
Technical Institutions. While passing the
Resolutions, the State has acted contrary to the
Act.
(E) Mr. Majmudar would further submit that
there is total non-application of mind on the part
of the State, inasmuch as, immediately after
these Resolutions reducing the strength of a set
up, the State on 20.3.2002 passed another
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Resolution by which new departments have been
started such as; CADCAM, Renewal Energy
Resources and Automobile Engineering
Departments which require additional staff
despite increase in intake, the Resolutions are
issued. He would also rely on a representation
dated 9.3.2022 of the Respondent No.2 where a
proposal has been sent to start new branches.
(F) Mr. Majmudar would further submit that
while taking extension of approval from AICTE
portal, the same does not accept seats of EWS etc
for calculating student teacher ratio.
(G) Mr. Majmudar would further submit that
there is complete contradiction inasmuch as, on
the one hand, through the MYSY Scheme,
financial aid is provided to the students who are
unable to take admission in Government Colleges.
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On the other hand, the intake in Government
Colleges is being reduced. He would submit that
rather than provide financial aid to students in
Self Financed Colleges, student intake and set up
must be continued.
(H) In support of his submissions, Mr. Majmudar
would rely on the following decisions:
* State of T.N. v. Adhiyaman
Educational and Research Institute and
others reported in 1995(4) SCC 104. He
would rely on Paragraph No.22 thereof and
submit that it is the duty and the
responsibility of the Council to set norms and
standards in the Technical Education
System.
* Preeti Srivastava v. State of
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Madhya Pradesh and others reported in
1990(0) AIJEL - SC 21418. He would rely
on Paragraph No.36 of the decision and
submit that any norms which have an
adverse effect on the standard of education
cannot be done except in accordance with
law.
* Nareshbhai Kanubhai Shah v.
State of Gujarat and others reported in
2020 SCC Online Guj., 3179. He would
rely on paras 28 and 29 to submit that the
State should try and balance the interest of
all stake holders, students and families of
the students on one side and teaching
community on the other. The petitioners
have been serving for several years and
termination will result into economic death.
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* Pravinsinh Indrasinh Mahida v.
State of Gujarat reported in 2021(4)
GLH, 554. He would rely on paragraph
No.82 and submit that judicial review is
permissible when the legislation is
discriminatory and has no nexus with the
object sought to be achieved.
* Civil Appeal No.5133 of 2019 in the
case of Vasavi Engineering College
Parents Association v. State of
Telangana and others. He would rely on
paragraph No.25 of the decision to submit
that it is well settled that judicial review lies
against the decision making process when
the same is flawed and in violation of basic
principles of natural justice and which takes
into consideration irrelevant material.
C/SCA/18352/2019 CAV JUDGMENT DATED: 07/10/2022
14. Mr. Qureshi, learned counsel appearing for ad hoc
Lecturers working in the Mechanical Engineering
Branch at the Diploma side and for the ad hoc
employees namely; Assistant Professors in Government
Engineering Colleges in the Electronics and
Communications Branch has made the following
submissions:
* Mr. Qureshi would submit that some of the
petitioners have been terminated from services. He
would submit that the petitioners' appointments cannot
be said to be illegal or de hors the Recruitment Rules.
He would submit that the Lecturers in the Mechanical
Engineering Branch, Diploma side and the Electrical
Branch have been appointed in the years 2008-09 as
per the Eligibility and the Qualifications prescribed
under the Rules. The appointment was done as per the
merit / interview by Selection Committee of the
respondent No.2. In other words, it cannot be said that
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the appointment was illegal or a back door entry. It was
through a regular recruitment process.
* Mr. Qureshi would further submit that the GPSC
Exemption Rules give ample powers to the State to
make such appointments without consultation with the
GPSC. In support of his submission that the
appointments are not illegal but at best irregular, he
would rely on a decision of the Hon'ble Supreme Court
in the case of Siraj Ahmad v. State of Utter
Pradesh and another reported in 2019(17) Scale,
626. He would rely on Paragraph Nos.11 to 15 thereof.
* Mr. Qureshi would submit that the petitioners of
SCA No.16165 of 2019 are working since last 25 years
as ad hoc Lecturers. They have crossed the age of
being considered for regular appointment and the
termination would ruin their family life. It has a human
problem which may kindly be accepted and a sympathy
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be shown. He would rely on a decision of the Hon'ble
Supreme Court in the case of Jacob M
Puthuparambil v. Kerala Water Authority
reported in AIR 1990 SC, 2228. He would rely on
paragraph No.15 of the decision.
* Mr. Qureshi would submit that in the recent past,
there has been no advertisement on behalf of GPSC.
The last one was in the year 2015-16. It is not open for
the State to contend that the petitioners failed to clear
in the GPSC examinations held from time to time falling
due under their tenure. The petitioners could not
appear because they were not given leaves and
therefore even they could not cope up with the existing
workload as Lecturers to prepare for the GPSC
examination. He would submit that in the year 2010,
Recruitment Rules were changed initially the
qualifications for Diploma and Degree Branches were
the same i.e. B.E. / B. Tech. However, thereafter, for
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the Degree side minimum qualification required was M.
E. / M. Tech. The GPSC came out with an advertisement
in the year 2010 for appointment as Lecturers in
Diploma side by prescribing B.E. + 75 percentile in GAT
or M.E. / M.Tech. Most of the petitioners could not apply
because it is difficult to pursue higher education while
in service. Mr. Qureshi would challenge the
competence of the State to bring out the Government
Resolutions dated 7.2.2020 and 27.7.2020 reducing the
intake in Diploma Engineering Colleges and
Restructuring. He would submit that Clause 4(d) of the
AICTE Regulations, 1994 clearly stipulate that no
approved intake capacity of seats shall be increased
except with the approval of the Council. He would
submit that the GRs are brought without complying the
conditions of students intake reduction as prescribed
under AICTE handbook. Appendix 3 of the Handbook
prescribes the ratio of intake in Degree and Diploma
Colleges which is required to be maintained and the
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GRs reduced and downsize the seats in an unilateral
manner without approval of the AICTE. There is no
proper assessment of intake and the data is collected
not of the past five years. He would rely on the decision
in the case of Parshavanath Charitable Trust v.
AICTE reported in 2013(3) SCC, 385. He would rely
on paragraph No.27 of the said decision.
* Mr. Qureshi would submit that the earlier GR
dated 16.8.2018 contend reference to instructions of
the AICTE dated 4.1.2016 which is absent in the
present GR clearly shows that the impugned GRs are
issued without instructions of the AICTE.
* Mr. Qureshi would submit that there is no reason
to reduce intake on the student seats as pleaded by
the State. The data is incorrect. In the year 2019-20,
the EWS was implemented and 25% additional seats
were introduced. The intake increase from 40:50 to
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50:62. If the student intake and set up is not reduced
by the impugned GRs, all the ad hoc contractual
employees and GPSC selected employees can be
accommodated. This artificial reduction by GRs is bad.
* Mr. Qureshi would submit that the Government
should be directed to bring out some plan or a Scheme
to accommodate ad hoc / contractual employees.
* Mr. Qureshi would make the same submissions in
context of ad hoc Assistant Professors in Government
Engineering Colleges in the Electronics and
Communications Branch.
15. Mr. Rajendra Patel, learned counsel has appeared for
regularly selected candidates in Special Civil
Application Nos.2271 of 2021 and 2670 of 2021. In
Special Civil Application No.2271 of 2021, he would
submit as under:
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* The GPSC gave an advertisement in 2015-16 for
111 posts of Lecturers and the result was declared on
13.6.2019. Document verification of successful
candidates took place on 28.8.2019. No appointment
orders are issued to the petitioners who have already
selected for the posts of Lecturers, Mechanical
Engineers, Government Polytechnic because of the
status quo orders granted by this Court. Because of the
impugned GRs, the State has downsized the select list
from 111 to 24 and though the petitioners are part of
this list, they are not appointed. As far as SCA No.2670
of 2021 is concerned, it pertains to Assistant
Professors, Electronic and Communication Engineering
in Government Engineering Colleges. An advertisement
was given in the year 2015-16 for 87 posts of Assistant
Professors. Final result was declared on 19.07.2019. No
appointment orders are issued to the petitioners
because of the status quo orders are granted. He would
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submit that thereafter the petitioners have been issued
a common appointment order dated 03.12.2021
alongwith other candidates in the downsized list of 31
candidates. The petition therefore was required to be
withdrawn, however the same is pending as a result of
the objection of learned counsel Mr. Qureshi who
appears for such ad hoc engages.
16. Mr. S.I. Nanavati, learned Senior Advocate assisted by
Mr. Vandan Baxi, learned advocate for the petitioners
would take the Court through the relevant pleadings in
the petition to indicate that once the petitioners were
recommended for appointment by the final result
dated 13.06.2019, by the revised notification of
24.05.2021, the petitioners could not have been
declared as unsuccessful.
* Mr. Nanavati would further submit that for the 111
posts that were advertised, three times the number of
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candidates were called for interview. Similarly for the
24 posts, which were now declared have been
successful, 72 candidates should have been called for
selection / interview which was not done and,
therefore, it was illegal and improper on the part of the
respondents to do so.
* Mr. Nanavati would further submit that what is
evident from the exercise undertaken by the
respondents, the petitioners were found on the
recommended list, they were called for document
verification and, thereafter, by the impugned revised
list, their names have been shown as unsuccessful
candidates. Pursuant to the recommendations made for
appointment, the rights of the petitioners had
crystallized for appointment and by the impugned
revised list, such an accrued right cannot be taken
away.
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* Mr. Nanavati would further submit that what is
evident from the sequence of events and dates is that
in July, 2018 when the AICTE had specifically issued a
notice that the State Government should not downsize
its faculty and when the Government on 02.03.2020
specifically gave an undertaking that it will continue
the process of recruitment of the 111 posts advertised,
four months thereafter, it could not do a somersault by
issuing a notification dated 27.07.2020 in light of the
Committee's Report and downsize the faculty which
was in effect contradiction of an undertaking given by
the State to the AICTE.
* Mr. Nanavati would further submit that what is
evident from the impugned Resolution dated
27.07.2020 that in the case of Mechanical Engineering,
the sanctioned posts have been reduced from 571 to
450, which is completely unjustified. He would submit
that once having been recommended the selection
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ought to have been done and the petitioners who were
forming part of the original selectees / recommendees,
which were recommended for appointment are entitled
to have their selection done and the reduction
therefore is bad.
* Mr. Nanavati would further submit that Resolution
dated 27.07.2020 issued by respondent No.1 is illegal,
inasmuch as, the GPSC is an independent constitutional
body under Article 315 and the GR is not binding on
respondent No.2. The GPSC cannot act merely on such
recommendation of the State, it being an independent
body of the State under Article 320 of the Constitution
of India.
* Mr. Nanavati would rely on the communications
received under the Right to Information Act which
indicates that, the State had taken a conscious decision
that such reduction in the faculty cannot be done
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without approval of the AICTE and, therefore the action
of downsizing without such approval and without taking
the GPSC into confidence was misconceived.
* Mr. Nanavati would further submit that it was on
10.02.2020 after vacating of the interim order, the
petitioners were entitled to be appointed as being part
of the original 111 appointees / recommendees and,
thereafter, truncating the select list to 24 is bad. He
would also challenge the truncation of the list of 24
candidates and submit that considering of only 24
candidates against 111 previously selected candidates
was without following due procedure. He would submit
that if the GPSC had decided to reduce vacancy then
the cut off for shortlisting the candidates for interview
should be considered on the basis of the merit
examination and only then the interviews could have
been taken on the basis of the merit in the written
examination. However, the final result is illegal
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inasmuch as it was published without following due
procedure of calling the appropriate numbers for
interview based on the written examination but
including the grading of interview in preparing the final
result.
* In support of his submissions that the rights of the
petitioners have crystallized and such a recruitment
cannot be stalled, Mr. Nanavati relied on the following
decisions:
(1) N.T. Devin Katti and others v.
Karnataka Public Service Commission
reported in 1990 (3) SCC, 157
(2) A. P. Public Service Commission v.
P. Chandra Moulessware Reddy reported in
2006 (8) SCC, 330
C/SCA/18352/2019 CAV JUDGMENT DATED: 07/10/2022
(3) K.D. Vohra v. Kamleshbhai
Gordhanbhai Patel reported in 2003 (2) GLR,
1343. The decision in the case of the Gujarat High
Court was relied in the context of the role of the
GPSC to its constitutional independence.
17. Special Civil Application Nos.9467 of 2021, 10555 of
2021 & 8479 of 2021 have been filed by aspirants who
were recommended for appointment originally for the
posts of Lecturers in Electrical Engineering,
Government Polytechnic, Class-II.
18. The facts herein these petitions are not repeated
extensively on the ground that they are similar to the
branch of Mechanical Engineering except the fact that
it is the case of the petitioners that in the
advertisement so issued for appointment by the GPSC
for the posts of Lecturers, Electrical Engineering, Class-
II in the Government Polytechnic, the petitioners had
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applied. They were declared successful in a final result
vide notification dated 26.03.2019. The petitioners who
were called for document verification on 28.05.2019.
They too had applied for vacating of stay in Special
Civil Application No.16165 of 2019 and by the
modification of the order on 10.02.2020, the State was
permitted to fill in the posts. It is the case of the
petitioners that the State had given an undertaking
that they would fill in the regular 268 posts of Lecturers
which were under the process of final appointment.
The originally sanctioned strength in the faculty of
Electrical Engineering was 201, which by the impugned
resolution dated 27.07.2020 was reduced to 174 posts.
It is the case of the petitioners that they were in the
original select list but because of the impugned
Resolution by which the faculty was reduced from 201
to 174, though the advertisement was issued for 68
vacant posts of Lecturers in the final result wherein the
name of the petitioners appeared, by the revised
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result, only 36 candidates were recommended for
appointment and the petitioners were declared
unsuccessful. Similar grounds of challenge have been
raised in these petitions too. An additional submission
was made by the learned counsel for the petitioners in
SCA No.10555 of 2021 by Mr. Virat Popat pointing out
that in the order passed by this Court on 13.09.2021
and on 05.10.2021, it was clarified that the
appointments made pursuant to the final result dated
24.05.2021 shall be subject to the outcome of these
petitions.
19. Mr. Panchal, learned advocate appearing for the
petitioners in Special Civil Application No.8479 of 2021
would rely on a communication dated 08.03.2018
written by the All India Council of Technical Education
to all approved institutions and submit that the
exercise of truncating the list from 68 to 36 posts in
the cadre of Lecturers in Electrical Engineering was
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bad. The additional submissions made by the learned
advocates, especially Mr. S.I. Nanavati, learned Senior
Counsel was that subsequently, the State has come out
with the Revised Resolution dated 20.04.2022, by
which, new faculties have been added in the posts of
such as Renewable Engineer, Computer Engineering
etc and therefore the student ratio has increased which
substantiates the fact that there was no need for
downsizing the faculties.
20. Special Civil Application Nos.9220 of 2021 and 6223 of
2021 have been filed by Assistant Professors in
Government Engineering Colleges in the branch of
Electronics and Communication Engineering
challenging the exclusion of the petitioners from being
recommended for appointment. It is the case of the
petitioners that the GPSC by the impugned
communication dated 24.05.2021 that is the Revised
Result has recommended 31 candidates for
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appointment to the posts of Assistant Professors in EC,
whereas, the original notification dated 19.07.2019
included the names of 87 candidates of which the
petitioners were also recommended. Similar to the
other cases, it is the case of the petitioners that
despite having been given an undertaking on
02.03.2020 to the AICTE undertaking that they would
fill up 157 vacancies of Associate Professors in
Government Colleges of which 90 were in the EC
branch, and though, pursuant to the undertaking they
assured that in all, 90 posts will be filled in, by the
impugned communication / Resolution dated
27.07.2020 which was preceded by the Resolution
dated 07.02.2020, the sanctioned posts of Associate
Professors in the EC Branch has been reduced from
212 to 147. As a result of this reduction, though the
petitioners were originally included in the list of 87
vacancies of 90, which were recommended for
appointments, the names of the petitioners figured in
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the list, however, as a result of the impugned
Resolution dated 27.07.2020, the Revised Notification
of 24.05.2021 recommends 31 candidates and the
petitioners have been declared as unsuccessful. In
other words, instead of 87 recommendations, the list
has been reduced to 31 excluding the petitioners.
21. Mr. Dhaval Dave, learned Senior Advocate appearing in
Special Civil Application No.9220 of 2021 with Mr. Jigar
Patel, learned advocate for the petitioners would make
the following submissions:
* Mr. Dave would submit that the reduction in
intake of students vide Government Resolution dated
27.07.2020 is patently erroneous. He would submit that
the petitioners ought to have been included in the
Revised Notification dated 24.05.2021 and by
excluding the petitioners, though their names were
recommended and their document verification was
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done, exclusion thereof is bad. He too would take the
Court to the factual details and submit that for 90
vacancies, 369 candidates were shortlisted on the basis
of Written Examination. The petitioners were called for
recommendations were made. He would submit that 55
candidates were declared as unsuccessful. These
unsuccessful candidates had approached the High
Court by filing Special Civil Application No.16442 of
2016, wherein, initially the stay was granted, however,
on vacating of such stay, the appointment process
continued as a result of which, on 19.07.2019, the
candidates wherein, the names of the petitioners were
included.
* Mr. Dhaval Dave, learned Senior Counsel would
submit that by Government Resolution dated
07.02.2020, the intake of students in Government
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Colleges for 2020 was reduced on the basis of large
number of seats remaining vacant. In all 16
Government Engineering Colleges, the intake was
reduced in 9 such colleges. He would submit that the
exercise of reduction of sanctioned strength from 212
to 147 by the Government Resolution dated
27.07.2020 which resulted in only 31 candidates being
recommended for appointment is bad. He would submit
that the Resolution dated 27.07.2020 is manifestly
arbitrary for the following grounds:
(A) Mr. Dave would submit that the intake as per
the Resolution stood reduced from the year 2021.
The full fledged effect, in fact cannot be from
2021, inasmuch as, the Degree Engineering
course is a duration of four years and, therefore
the reduction has to be a gradual effect which is
not considered. Mr. Dave would further submit
that while calculating the reduction of intake, the
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State has not taken into consideration the Tuition
Waiver Scheme, EWS quota and the Diploma to
Degree migration. Mr. Dave would rely on a
calculation placed at page 153 and submit that
the calculations at this stage indicated that in fact
the reduction was not with application of mind
and as per the norms of the faculty requirements
and cadre ratio of the technical institutions.
(B) Mr. Dave would further submit that by a new
Resolution dated 20.04.2022, the seats in
Government Engineering Colleges came to be
increased in various branches such as Electronics
and Instrumentation Engineering, Robotics and
Automation, Information and Communication
Technology and, therefore the reduction of
faculties was without application of mind.
(C) Mr. Dave would further argue that the
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reduction in sanctioned posts as is evident from
the chart at page 56 would indicate that the
student-teacher of 1:20 prescribed by the AICTE
has to be followed in all cadres i.e. in the cadre of
Professors, Associate Professors and Assistant
Professors. What is indicated is that in the
category of Professors and Associate Professors,
there is no reduction of strength whereas only in
the category of Assistant Professors, a reduction
is made by reducing 65 posts of Assistant
Professors in 147 posts. This, sudden change in
the sanctioned strength of Assistant Professors
only is bad.
(D) Mr. Dave would further submit that when a
specific undertaking was given by the State to the
AICTE, the decision to reduce intake was
misconceived.
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(E) Mr. Dave would further submit that in all the
cases, the petitioners by virtue of being on the
recommended list and now being ousted have lost
their legitimate expectation of being selected /
appointed and have become over aged.
22. Similar submissions were made by learned Counsel
Mr.S.I. Nanavati for Assistant Professors in EC Branch in
Special Civil Application No.6223 of 2021.
23. Mr. Sharma, learned AGP appearing for the respondent
- State has relied on affidavit-in-replies filed in the
respective petitions in addition to an affidavit common
to all petitions in SCA Nos.9095 of 2020 and 10427 of
2021. He has made the following submissions:
* Mr. Sharma would submit that the ad hoc
Lecturers Class II irrespective of the Branches
before this Court and Assistant Professors
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admittedly are appointed on an ad hoc basis. He
would invite the attention of the Court to the
appointment orders which clearly and specifically
stated that the appointments of these petitioners
for 11 month period or till a regularly selected
GPSC candidate was available. Merely because
the period has thereafter been extended would
not give the petitioner a right to continue in
service.
* Mr. Sharma would submit that the
contention of the petitioners that they could not
appear and pass in the GPSC examination, six in
number, which were held in the interregnum is
misconceived. He would submit that the office of
the Commissionerate of Technical Education had
specifically issued a circular on 23.11.2010 stating
that ad hoc Lecturers who desire to pursue
M.E./M.Tech. may do so after resigning from the
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post of Lecturers / Assistant Professors. The
petitioners could not have been permitted to
pursue their Masters Degree by going on leave as
it would lead to suffering of students.
* Mr. Sharma would further submit that the
petitioners were fully aware of the nature of their
service conditions which were purely temporary
and their appointments were only till regular
GPSC candidates are available. They have no right
to the posts.
* Mr. Sharma would further submit that the
number of sanctioned posts cannot be allowed to
be increased either mechanically or arithmetically
even when AICTE has no occasion to direct. On
the contrary the teaching pattern which was
prevalent in the year 2018-19 has undergone a
sea change. As per AICTE approach process
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handbook 2020-21, tuition fee waiver does not fall
under the definition of "Approved Intake" but
under "Supernumerary Seats." He would further
submit that the GR dated 7.2.2020 has been
passed after following the proper procedure
wherein a decision was taken to revise the
students sanctioned intake in Government
Engineering Colleges and Government Polytechnic
Colleges taking into consideration the substantial
reduction in admission of students in the previous
year.
* In the academic year 2018-19, the total
intake "first year" of the students was 3990
against which only 3552 students were admitted.
438 seats therefore remained vacant. Similarly in
the academic year 2019-20, the total intake "first
year" of the students was 5062, only 3447 seats
were filled in. Leaving increased number of vacant
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seats to 1615. By virtue of the GR dated 7.2.2020,
the student intake had to be reduced to 3750 for
year 2020-21. Even after implementation of EWS
quota, the vacancies increased drastically to 1615
and reduced only to 1312 in the year 2020-21.
* Mr. Sharma would further submit that the
impugned GRs have taken into consideration the
scenario of last five years and data so pertaining
to the vacant seats. The State has taken a
conscious decision for reduction of student intake
of the past five years as per approval process
handbook of AICTE more particularly Clause
2.22.1(d) which states that institution can apply
for reduction in intake of courses within a Division
by themselves in the AICTE web portal and
maintained faculty student ratio accordingly
without NOC from University / Board / State
Government / UT. He would submit that the AICTE
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has already approved the reduced intake and has
issued extension of approval to all institutes /
colleges for the year 2020-21. Since all AICTE
affiliated degree and diploma colleges have been
granted an extension of approval for the year
2020-21, there is no question of not abiding by
Regulations.
* Mr. Sharma would submit that the
observations in LPA No.2986 of 2010 and the term
"posts" has to interpreted based on vacancies.
Mr. Sharma would further submit that from the
year 2018-19, AICTE has revised for
faculty:student ration from 1:20 to 1:25. The
Public Notice dated 6.3.2018 pertains to degree
Engineering Colleges and not applicable to
Diploma courses.
* Mr. Sharma would further submit that there
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were as many as six GPSC examinations
conducted in "degree and diploma" in various
branches including Mechanical Engineering in the
years 2010, 2013 and 2015 for appointment to
the posts of Lecturers which required qualification
of only B.E. One more GPSC examination was
conducted in the year 2010. The petitioners have
either chosen not to appear in the examinations
or have appeared and not passed.
* Mr. Sharma would rely on the AICTE
handbook and submit that point 7.13 of the
handbook would clearly give authority to the
institution to reduce intake. Through a separate
"points of submission" Mr. Sharma has given a
tabular chart indicating statistic in support of the
GRs dated 07.02.2020, 29.02.2020 and
27.07.2020.
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* Mr. Sharma, learned AGP for the respondent-
State would rely upon the following decisions:
* Letters Patent Appeal No.2986 of 2010
dated 07.09.2011 in the case of Hiren N.
Upadhyay v. Bhavik M. Patel. He would
rely on the following observations where the
Division Bench has held that mere long
continuance would not result in
regularization.
* He would also rely on a decision of the
coordinate Bench of this Court in Special
Civil Application No.13200 of 2013 dated
31.01.2014 in the case of Pradeep
Navinbhai Patel v. State of Gujarat
where the Court has held that even when it
is the temporary employment such
employees cannot invoke theory of
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legitimate expectation.
* Reliance is also placed on the decision
of the Division Bench of this Court in Letters
Patent Appeal No.1184 of 2014 dated
24.01.2018 in the case of Acharya
Madhavi Bhavin v. State of Gujarat. He
would therefore submit that the Resolutions
issued by the State are just and proper.
* Reliance was also placed on the
decisions of the Hon'ble Supreme Court in
the case of State of Haryana v. Subash
Chander Marwaha reported in 1974(3)
SCC, 220. Paragraph No.6 thereof was
relied upon. He also relied on a decision in
the case of Rani Laxmibai Kshetriya,
Gramin Bank v. Chand Behari Kapoor
reported in 1998(7) SCC 469. Paragraph
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Nos.8 to 14 were read to submit that mere
inclusion of a name in the list of successful
candidates does not confer an indefeasible
right to be appointed.
24. Having considered the submissions of the learned
advocates for the respective parties, what is evident is,
that the ad hoc Lecturers / Assistant Professors
engaged by the State were appointed as such on a
clear condition in their appointment order. The
appointment orders are on record. The appointments
were issued by the Director of Technical Education. The
conditions in the appointment order clearly indicated
that their tenure is on a contractual basis and / or for a
period of 11 months or till regularly selected candidate
whichever is available earlier.
25. Conditions in the appointment order therefore clearly
were accepted by the petitioners with open eyes. They
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had categorically joined their posts knowing fully well
that their appointment is contractual and / or ad-hoc. It
is no longer a matter of debate that appointees who
were appointed on such terms and conditions can have
no right to continue on such posts or claim
regularization by virtue of a long tenure of service.
26. This Court had extensively considered the issue of ad
hoc appointees and their rights to continue in service
in the case of K. D. Vohra v. Kamleshbhai
Gobarbhai Patel reported in 2003(2) GLR, 1343.
The Division Bench of this Court held that in
accordance with Article 320 of the Constitution of India,
though consultation is not necessary in respect of
temporary appointments where the period is not likely
to exceed one year. However, this exemption will not
authorize the State Government not to consult GPSC in
respect of appointments which are likely to exceed one
year. The terms of appointment clearly indicated that
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the appointees were ad hoc. They have no right to
claim appointment and as and when a regularly
selected candidate is available, such ad hoc appointees
have to make way. Paragraph Nos.25 and 26 of the
decision of the Division Bench read as under:
"25. The continuance of these ad hoc lecturers for
many years beyond the first year for which the
consultation from the G.P.S.C. was not necessary
in view of the ad hoc nature of appointment may
have nurtured hope in them that they will be
regularized. In fact, in the office note, which is at
Annexure "II" of the affidavit filed on 14th
October, 2002 in Letters Patent Appeal No.817 of
2002, there is a reference to the fact that the
office-bearers of the Association were heard by
the Hon'ble Chief Minister on 17-05-1999 in a
public relation meeting, and that the Chief
Minister had given a direction that the decision
would be taken on the basis of the report of the
Cabinet Sub-Committee, and that, in principle, it
was decided to continue these ad hoc employees
and the concerned Minister will give directions as
to the matter of holding of examination by the
G.P.S.C.. Though, this note cannot be said to be
an order of the Government and only reflects that
the matter was in contemplation of the
Government, such consideration would have
given the ad hoc Lecturers to understand that
they will be regularized in service. Even in the
affidavit of the Government filed on 14 th June,
2001 in Special Civil Application No.2395 of 2000,
it was stated that the Government had, pursuant
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to the order dated 04-05-2001, made in the said
petition, directing the State Government to
decide the representations of the ad hoc
Lecturers, taken a decision that the services of all
the 330 persons appointed as Lecturers in
Government colleges on ad hoc basis from time
to time by the Commissioner of Higher Education
pursuant to their selection by local selection
committee constituted under the Circular dated
21-12-1992 should be regularized from the date
of their appointment as was done in the case of
Medical Officers, Ayurveda, Class II, under the
G.R. dated 4-12-1999, and that for regularizing
the services of all such ad hoc appointees, a
reference to the G.P.S.C. should be made to
obtain its approval, as a special case. There was,
therefore, clear indication that the case of these
ad hoc employees would be regularized in
consultation with the G.P.S.C.. However, that
stand was changed, when it dawned on the
Executive that they committed a legal blunder, in
the affidavit, because, these ad hoc appointees
could not have been regularized contrary to the
Recruitment Rules in the post for which direct
recruits were already selected through the P.S.C.
In fact, according to us, these matters should not
be viewed as having a "lis" between the ad hoc
Lecturers and the regular direct selectees. The
direct selectees cannot be penalized to wait
though selected as per the statutory rules
through the P.S.C. They are rightly allowed to
man the posts earmarked to be filled by them.
The ad hoc Lecturers, if at all, will have a
legitimate grievance against the executive for
continuing them on ad hoc basis for all these
years without consultation with the G.P.S.C.,
creating a hope in them that they will be some
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day absorbed. The executive acted in an arbitrary
fashion in continuing them contrary to the
statutory rules which empowered it to make ad
hoc appointments only for a year arid in breach of
its statutory obligation to fill the post in the
manner prescribed by the Rules. It will be for the
Government to consider the feasibility of giving
appropriate relief in consonance with their
statutory powers where such ad hoc appointees
have been continuing over a long number of
years. Issuing general declaration of indulgence is
not the part of a Court's jurisdiction, as held in
Praia Singh's case (supra) by the Supreme Court.
The contentions raised on behalf of the appellants
cannot, therefore, be accepted.
26. Though, these ad hoc lecturers cannot be
directed to be continued contrary to the
Recruitment Rules, nor can they be ordered to be
regularized by any mode not warranted by the
statutory rules governing the appointments to the
cadre of Lecturers, G.E.S., Class II (Collegiate
Branch), in the facts and circumstances of the
case, we direct that these ad hoc Lecturers be
treated as a separate class in view of their ad hoc
continuance for nearly a decade due to reckless
indifference in discharge of duties on the part of
the executive and be considered for absorption in
such posts as may be available with the
Government or under the authority of the
Government in consonance with the statutory
provisions applicable to such posts. The State
Government is also directed to inquire into the
serious lapse of not consulting the G.P.S.C. while
continuing these ad hoc lecturers contrary to
Recruitment Rules beyond one year and fix the
responsibility for the careless default that has
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resulted in the ad hoc Lecturers being continued
for long without consultation with the G.P.S.C. and
for the posts not having been filled through the
G.P.S.C., as per the Recruitment Rules and the
General Rules for over a decade, especially when
there was no interim order of any Court, as we
are told, which could have prevented the process
of regular recruitment.
26.1 For the reasons indicated above, we
also direct that each of the appellants - ad
hoc Lecturers who are ordered to be relieved
by the impugned action of the State
Government be paid, by way of a token
compensation, one month's salary, and such
amount be recovered from the defaulting
officers who may be found by the State
Government to be responsible for the
inaction in sending requisitions to the
Gujarat Public Service Commission or in not
consulting it while illegally continuing the ad
hoc Lecturers beyond one year of their initial
local appointments, without bothering to
consult the G.P.S.C. under the Rules.
26.2 Subject to the above directions, all
these Letters Patent Appeals are dismissed
with no order as to costs. All the Civil
Applications which are filed in these Letters
Patent Appeals stand rejected with no order
as to costs."
27. Hon'ble the Supreme Court in the case of J & K Public
Service Commission and others v. Dr. Narinder
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Mohan reported in 1994(2) SCC, 630 has held that
persons appointed on ad-hoc basis cannot be
regularized. The contention of the petitioners that they
have been appointed after a due process of selection
also appears to be misconceived. It is clear that a
candidate in order to be appointed has to undergo a
regular selection process and an appointment through
the G.P.S.C.
28. In the celebrated case of Secretary, State of
Karnataka v. Umadevi reported in 2006(4) SCC, 1.
The Supreme Court in paragraph No.47 of the said
decision has categorically held that a person who is
appointed on a contractual or a temporary basis,
cannot invoke the theory of legitimate expectation.
That decision of the Hon'ble Supreme Court has been
followed by a coordinate bench of this Court in the case
of Pradeep Navinbhai Patel (Supra). Paragraph
Nos.24 to 34 of the said decision read as under:
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"24. It may be made clear, at this stage,
that the appointment of the petitioners, being of
a contractual nature, does not confer any right
upon them to the posts against which they
have been appointed, even though they may
be vacant posts. In Secretary, State of Karnataka
and others Vs. Umadevi (3) and others
(Supra.), the Supreme Court has observed as
below :
"47. When a person enters a temporary
employment or gets engagement as a
contractual or casual worker and the
engagement is not based on a proper
selection as recognized by the
relevant rules or procedure, he is
aware of the consequences of the
appointment being temporary, casual or
contractual in nature. Such a person
cannot invoke the theory of legitimate
expectation for being confirmed in the post
when an appointment to the post could be
made only by following a proper procedure
for selection and in concerned cases, in
consultation with the Public Service
Commission. Therefore, the theory of
legitimate expectation cannot be
successfully advanced by temporary,
contractual or casual employees. It
cannot also be held that the State has held
out any promise while engaging these
persons either to continue them where they
are or to make them permanent. The
State cannot constitutionally make such a
promise. It is also obvious that the theory
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cannot be invoked to seek a positive relief of
being made permanent in the post."
25. Keeping this position of law in mind, it may be
noticed that in the present case, the petitioners
are not seeking regularization or confirmation
against the posts they are occupying on a
contractual /temporary basis. It has been
conceded on behalf of the petitioners that
they have no permanent right against these
posts. That the petitioners have not claimed any
right to continue in service once regularly
selected candidates by the GPSC are
available. The scope of this petitions,
therefore, is narrowed down to the extent
that the petitioners have challenged the action of
the State Government in seeking to terminate
their services in order to replace them with
another set of adhoc/temporary/ contractual
employees, whose terms and conditions
would be identical to those of the
petitioners. The issue for determination before
this Court would be whether the action of
the State Government in replacing the
petitioners who are temporary employees
by another set of temporary employees, is
sustainable in law, or not.
26. In Secretary, State of Karnataka and others
Vs. Umadevi (3) and others (Supra.), the
Supreme Court has referred to the principles of
law laid down by a Bench of three Hon'ble Judges
of the Supreme Court in State of Haryana and
others Vs. Piara Singh and others (Supra.).
The relevant quotations from the judgment
is reproduced hereinbelow :
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"25. This Court then concluded in paras 45 to
49: (SCC p.152)
"45. The normal rule, of course, is regular
recruitment through the prescribed
agency but exigencies of administration
may sometimes call for an ad hoc or
temporary appointment to be made.
In such a situation, effort should
always be to replace such an ad
hoc/temporary employee by a regularly
selected employee as early as possible.
Such a temporary employee may also
compete along with others for such
regular selection/appointment. If he
gets selected, well and good, but if
he does not, he must give way to
the regularly selected candidate. The
appointment of the regularly selected
candidate cannot be withheld or kept in
abeyance for the sake of such an ad
hoc/temporary employee.
46. Secondly, an ad hoc or temporary
employee should not be replaced by another
ad hoc or temporary employee; he
must be replaced only by a regularly
selected employee. This is necessary to
avoid arbitrary action on the part of
the appointing authority.
47. Thirdly, even where an ad hoc or
temporary employment is necessitated
on account of the exigencies of
administration, he should ordinarily be
drawn from the employment exchange
unless it cannot brook delay in which
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case the pressing cause must be stated on
the file. If no candidate is available or is
not sponsored by the employment
exchange, some appropriate method
consistent with the requirements of Article
16 should be followed. In other words, there
must be a notice published in the
appropriate manner calling for applications
and all those who apply in response thereto
should be considered fairly.
48. An unqualified person ought to be
appointed only when qualified persons
are not available through the above
processes.
49. If for any reason, an ad hoc or
temporary employee is continued for a fairly
long spell, the authorities must
consider his case for regularization provided
he is eligible and qualified according to
the rules and his service record is
satisfactory and his appointment does not
run counter to the reservation policy of the
State."
26. With respect, why should the State be
allowed to depart from the normal rule
and indulge in temporary employment in
permanent posts? This Court, in our view,
is bound to insist on the State making
regular and proper recruitment and is
bound not to encourage or shut its eyes to
the persistent transgression of the rules of regular
recruitment. The direction to make permanent
the distinction between regularization and
making permanent, was not emphasized here
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can only encourage the State, the model
employer, to flout its own rules and would confer
undue benefits on a few at the cost of many
waiting to compete. With respect, the
direction made in para 50 (of SCC) of Piara Singh
is to some extent inconsistent with the
conclusion in para 45 (of SCC) therein.
With great respect, it appears to us that the last
of the directions clearly runs counter to
the constitutional scheme of employment
recognized in the earlier part of the
decision. Really, it cannot be said that this
decision has laid down the law that all ad
hoc, temporary or casual employees engaged
without following the regular recruitment
procedure should be made permanent."
(emphasis supplied)
27. It may be noted that in Secretary,
State of Karnataka and others Vs. Umadevi
(3) and others (Supra.), the Constitution Bench
of the Supreme Court has not interfered with, or
diluted the principles of law, enunciated in the
case of State of Haryana and others Vs. Piara
Singh and others (Supra.) to the effect that
an adhoc or temporary employee should not be
replaced by another adhoc or temporary
employee, but must be replaced only by a
regularly selected employee, so as to avoid
arbitrariness on the part of the appointing
authority. The Constitution Bench did not agree
with the directions made in the case of
State of Haryana and others Vs. Piara
Singh and others (Supra.), as contained in
paragraph 50 of the said judgment, regarding a
Scheme for regularization of the services of
temporary employees to be prepared by the
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State Government. The principle of law
enunciated in the judgment of State of
Haryana and others Vs. Piara Singh and others
(Supra.), regarding ad-hoc appointees, as
reproduced in paragraph-25 of Secretary,
State of Karnataka and others Vs. Umadevi (3)
and others (Supra.), has not been interfered with
by the Constitution Bench in the case of
Secretary, State of Karnataka and others
Vs. Umadevi (3) and others (Supra.). Hence,
the principle of law that an ad - hoc or temporary
employee should not be replaced by another ad
-hoc or temporary employee, still holds
good. The appointing authority, in this case the
State Government, must resort to the procedure
of appointing regularly selected candidates.
This process, though underway, will take
almost a year for completion, if not more.
There is no valid reason for the State
Government to bring in another batch of
temporary employees by terminating the
services of the petitioners by resorting to
continued ad - hoc appointments.
28. This Court has carefully perused the
judgments in the case of Secretary, State of
Karnataka and others Vs. Umadevi (2) and
others (Supra.) and Secretary, State of
Karnataka and others Vs. Umadevi (3) and
others (Supra.) as well as the judgment in
Official Liquidator Vs. Dayanand and others
(Supra.) and Maharashtra State Road
Transport Corporation vs. Casteribe Rajya
Parivahan Karmchari Sanghatana (Supra.). In
the case of Secretary, State of Karnataka
and others Vs. Umadevi (2) and others
(Supra.), a reference was made to a Larger
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Bench of the Supreme Court regarding the
issue whether employees appointed by the
State or its instrumentalities on temporary or
casual basis, or on daily - wage, have a right to
approach the High Court for issuance of a Writ of
Mandamus directing that they may be made
permanent or absorbed in the posts on
which they are working. In paragraph - 26 of
Secretary, State of Karnataka and others
Vs. Umadevi (3) and others (Supra.), the
Constitution Bench of the Supreme Court did
not approve of the principles of law laid down
in paragraph - 50 of State of Haryana and
others Vs. Piara Singh and others (Supra.), to
the extent that directions issued to the States to
prepare a scheme for regularization of the
temporary or casual or dailywage workers.
The reference to the Constitution Bench
was regarding regularization of such
employees and to that extent the principles of law
laid down in State of Haryana and others
Vs. Piara Singh and others (Supra.), have been
overruled by Secretary, State of Karnataka
and others Vs. Umadevi (3) and others
(Supra.), in paragraph - 50 regarding touching
upon the regularization of temporary/casual
workers and dailywagers have been
overruled. However, the principle of law
enunciated in the judgment of State of Haryana
and others Vs. Piara Singh and others
(Supra.), that adhoc employees should not be
replaced by another adhoc employees has not
been overruled. The judgment of State of
Haryana and others Vs. Piara Singh and others
(Supra.), as a whole, has not been overruled and
the principles of law laid down to the effect
that ad-hoc employees should not be replaced
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by other ad-hoc employees still holds good.
29. In Official Liquidator Vs. Dayanand and
others (Supra.), a reference is made to State of
Haryana and others Vs. Piara Singh and others
(Supra.), only with regard to regularization of the
services of temporary employees and
paragraph26 of the judgment in Secretary,
State of Karnataka and others Vs. Umadevi (3)
and others (Supra.), has been reproduced.
30. In Maharashtra State Road Transport
Corporation vs. Casteribe Rajya Parivahan
Karmchari Sanghatana (Supra.), a reference to
State of Haryana and others Vs. Piara Singh and
others (Supra.), has been made in the context of
regularization only. Moreover, both the judgments
in Official Liquidator Vs. Dayanand and
others (Supra.) and Maharashtra State Road
Transport Corporation vs. Casteribe Rajya
Parivahan Karmchari Sanghatana (Supra.) are
of three and two Hon'ble Judges,
respectively, whereas the judgment in
Secretary, State of Karnataka and others Vs.
Umadevi (3) and others (Supra.), has been
rendered by five Hon'ble Judges of the Supreme
Court. In paragraph54 of Secretary, State of
Karnataka and others Vs. Umadevi (3) and
others (Supra.), the Supreme Court has held
as below :
"54. It is also clarified that those
decisions which run counter to the
principle settled in this decision, or in
which directions running counter to what
we have held herein, will stand denuded of
their status as precedents."
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31. The principles settled in the decision
of Secretary, State of Karnataka and others Vs.
Umadevi (3) and others (Supra.), are those
pertaining to regularization of temporary/casual/
dailywage workers. Having regard to the above,
this Court is inclined to agree with the
submissions advanced by learned Senior Counsel
for the petitioners that the principle of law laid
down in State of Haryana and others Vs. Piara
Singh and others (Supra.), that adhoc
employees ought not to be replaced by
another set of adhoc employees, but only by
regularly selected candidates, has not been
diluted and still holds good.
32. A similar view has been taken by the
Division Bench in the judgment dated
07.09.2011, passed in Letters Patent Appeal
No.2986/2010, and connected matters. When
the appeals were being heard, initially, the
Division Bench passed an interim order
dated 24.03.2011, whereby it was directed
that till the posts are filled up by regularly
selected candidates, the Assistant
Professors/Lecturers be not disturbed. These
directions have attained finality in the final
judgment dated 07.09.2011. While disposing of all
the Letters Patent Appeals, the Division Bench
has made it clear that till regular appointments
are made, the adhoc Lecturers / Assistant
Professors, who were the respondents
therein would be continued. The State
Government was directed to continue the
interim arrangement, as ordered by the Division
Bench in its order dated 24.03.2011. This
judgment has attained finality, as there is no
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further challenge to it. It has been pointed out
by the learned Assistant Government Pleaders
that the State Government has not only accepted
the judgment, but has also implemented it. The
adhoc Assistant Professors/Lecturers, who
were before the Division Bench in those
cases were continued and are still continuing, till
such time as regularly selected candidates are
not available. Even while reiterating that the
petitioners cannot have any claim to the posts
after the regularly selected candidates by the
GPSC are available, this Court fails to
understand why the State Government,
which has implemented the judgment of the
Division Bench in the case of identically
situated Assistant Professors / Lecturers, has
once again resorted to the same practice that
was disapproved by the Division Bench
earlier. The very existence of contractual /
temporary / ad-hoc appointments for a long
period of time would go to show that
there is a genuine requirement for filing
up the posts on a regular basis. The
Constitutional Scheme of Public
appointments, as has been expounded in the
Secretary, State of Karnataka and others
Vs. Umadevi (3) and others (Supra.),
mandates that appointments to regular posts
should be made by following the proper
procedure. Frequent or continuous resort to ad-
hocism ought not be made in the interest
of the State, Institution, or, in the present
case, the academic future of the students.
Making appointments of Assistant
Professors/Lecturers on adhoc basis for a term of
eleven months and thereafter replacing them
with another set of adhoc Assistant
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Professors/Lecturers, again for a short
period of eleven months, and to continue this
process over and over again until regularly
selected candidates are available, would
definitely be detrimental to the interest of
the students. This is an aspect that
deserves consideration. The object of
appointment of Assistant Professors/Lecturers
is to teach the students of Government
Engineering Colleges and Government
Polytechnics. If a method is resorted to that would
undermine the continuity of the studies of the
students and, thereby, lower the quality of
education that they receive, it would fail to have
any rational nexus to the object sought to be
achieved. Besides this, the services of the
petitioners are sought to be terminated during
midterm, which would further adversely affect the
studies of the students.
33. It appears from the submissions made on
behalf of the GPSC that the requisition for filling
up regular posts has come from the State
Government on 07.08.2013. The procedure for
regular recruitment is still underway and, as
per the submissions made by Mr.D.G.Shukla,
learned advocate for the GPSC, it may take
another 10 to 12 months to complete the same. It
may be true that the petitioners do not
have any permanent right to the posts that they
are occupying on ad-hoc basis; however, it
is difficult to understand what rational purpose
would be served in terminating the services of
the petitioners and engaging fresh adhoc
persons for eleven months. Such action would be
in contradiction to the principle of law laid down
in the case of State of Haryana and others
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Vs. Piara Singh and others (Supra.) as quoted in
the judgment of Secretary, State of Karnataka
and others Vs. Umadevi (3) and others (Supra.).
Moreover, it would lead to multifarious
litigation, as is already the case.
34. As has been submitted on behalf of
the petitioners, the challenge in the present
petitions is limited only to the extent of the
termination of the services of the petitioner to
make way for another set of adhoc employees.
It does not extend to those Assistant
Professors/Lecturers, who may have been
appointed in the Government Engineering
Colleges and Government Polytechnics, pursuant
to the advertisement dated 15.08.2013, or to any
other vacant posts."
29. Even in that case, a Coordinate Bench of this Court had
clearly held that such ad hoc appointees have only a
limited right to continue in service till regularly
selected candidates are available. In the facts of the
present case, what is apparently evident is that after a
regular process of selection, GPSC candidates who
have undergone a regular process of selection are
available and waiting. The terms of appointments on
which the petitioners were appointed clearly indicate
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that their appointments were purely on ad hoc and
contractual basis and they are to give way to regularly
selected candidates.
30. The decision cited by learned counsel Shri Qureshi in
the case of Siraj Ahmad (Supra) cannot be disputed,
however, merely because such appointments are
continued over a long period of time, by itself did not
render legality to such appointments.
31. The Division Bench of this Court in the case of Hiren
N. Upadhyay (Supra) has categorically observed as
under:
"On merits, we do not find any justification to
regularize any one or the other adhoc
lecturers against regular posts for two
reasons, viz:
[i]. They were not appointed after
following the procedure for
appointment.
[ii]. Their continuation in service for
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number of years do not cloth them with
any right to regularization as they were
appointed with open eyes that their
appointments were adhoc in nature till
regular appointments are made
through GPSC.
We have noticed that many of the adhoc
appointees have crossed the age limit and
may not be eligible for consideration for
appointment on regular basis and therefore,
they could not take part in the recent
selection. Having noticed such situation, we
have already given liberty to the
respondents to frame a scheme for them, if
the State so intends.
We have also noticed that pursuant to the
directions issued by this Court, GPSC has
completed the process of selection and has
already recommended names of 1007
candidates. However, even after such
recommendation, 1106 posts are vacant for
which again a fresh selection process should
start after requisition by the State."
32. Admittedly also it is not open for the petitioners of such
ad-hoc appointees to contend that they were
prevented from competing for selection and in the
interregnum the State raised the bar inasmuch as,
qualifications were increased to that of M.E. / M.Tech. It
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has come on record that on six occasions, the GPSC
had undertaken a process of recruitment and the
petitioners had they be willing to should have
undertaken a process could and have opted for
selection through the GPSC and have the benefit of
regularization in service. Merely because, such
petitioners have continued to hold the posts will not
give them a licence or loathe their appointments which
admittedly were contractual can be given the color of
legality because of the passage of time and their
continuance on such posts cannot therefore be
permitted to be continued which would amount to
purported illegality.
33. Now, it needs to be considered in light what is
discussed hereinabove the validity of the Resolutions
of the State dated 7.2.2020, 29.2.2020 and 27.7.2020
on the basis of the argument made by the petitioners
that such Resolutions have been issued in
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contravention of the norms of the AICTE Act and the
Regulations thereunder.
34. The legality of downsizing of the vacancies in the
respective branches which led to the Government
recommend to the GPSC to reduce the number
recommendations to 24 and 31 respectively, as a
result of which some of the petitioners who were part
of the original merit list found themselves as declared
failed, as a result of this declaration of revised result
also forms part of this consideration as the challenge is
to the very resolutions which are made by the ad-hoc
appointees.
35. The challenge to these Resolutions is manifold that it
could not have been done once the AICTE had issued a
Public Notice that due to revision of Faculty - Student
Ratio will not lead to downsizing. That while downsizing
and reducing the vacancies procedure under the AICTE
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Rules was not followed. That no proper analysis based
on the last five years was done and even after giving
an undertaking to comply and not disturb the selection
process, the Government went ahead to issue the
impugned Resolutions without application of mind
directly depriving the petitioners who were ad-hoc
appointees to deprive them of the additional vacancies.
Also, the petitioners who were on the original merit list,
subsequently found their names in the list of
unsuccessful candidates thereby depriving them of
their right to appointment, which was their right and
they legitimately expected to be appointed once they
were recommended and their document verification
was done.
36. The preamble of the Government Resolution when
read, that of the GR dated 07.02.2020 it indicates that
based on the input and experience of the past three-
four years and assessment of intake of students, it was
C/SCA/18352/2019 CAV JUDGMENT DATED: 07/10/2022
found that the students opting to get into Engineering
Colleges and Government Polytechnics of dropping.
Many seats in such colleges and Polytechnics were
remaining vacant. Keeping in mind the interests of
education and administrative interests and statics, it
was decided to approach the AICTE for approval of
Revised Sanctioned Intake. As a result of AICTE's
instructions to obtain NBA Accredition for over 50% of
the courses and based on the sanctioned intake the
student-faculty ratio needed to be revised. Therefore,
there was a serious consideration to undertake Intake -
Revision for the Academic Year 2020-21.
37. Therefore, reading of the preamble of the Resolution
dated 7.2.2020 itself indicates that, while considering
the issue of downsizing of the intake capacity in light of
the student faculty ratio, the State Government had,
while taking this decision kept in mind the AICTE and
its role and approval procedures in the decision making
C/SCA/18352/2019 CAV JUDGMENT DATED: 07/10/2022
process. Accordingly, it was resolved to revise the shift
- intake in the 23 Government Polytechnics in 69
branches and in 11 Government Engineering Colleges
in its 29 branches. The Resolution categorically
indicates that while individual institutions while
uploading revised intake information be furnished by
the year 2020-21 for approval on the AICTE portal.
These are apparent indications to justify the stand of
the Government that the AICTE was kept informed and
the entire process was undertaken in accordance with
the procedure prescribed by and with the permission
and approval of the AICTE.
38. Even when the Government Resolution dated
27.07.2020 is read it falls back on the Government
Resolution dated 07.02.2020. Apparently, therefore,
the process undertaken for downsizing the intake
cannot be faulted on the grounds canvassed at the
hands of the ad-hoc appointees as well as at the hands
C/SCA/18352/2019 CAV JUDGMENT DATED: 07/10/2022
of the petitioners who find themselves excluded from
the list of original recommendees as a result of the
GPSC's revised result made in consultation with the
Government in light of these Government Resolutions.
The reading of the Government Resolution dated
27.07.2020 indicates that in the year 2017-18, the
student faculty ratio was 1:20 which was revised to
1:25 in 2018-19. Taking into consideration the
continued reduction of students opting for courses in
the Government Polytechnics and colleges it was found
that the student intake had reduced to 6600 seats and
therefore there was a parallel need to reduce the
strength of the teaching faculty. Based on the report of
the Committee in May, 2020 a requisition was made to
the Department and therefore such reduction was
under the consideration of the Government. It was
accordingly decided to reduce the set-up in the
Government Polytechnics. The Resolution has a table
affixed thereto. A resolution dated 27.07.2020 on
C/SCA/18352/2019 CAV JUDGMENT DATED: 07/10/2022
similar lines was issued for the Government
Engineering Colleges.
39. At this stage, the affidavit-in-reply filed by the State in
Special Civil Application No.10427 of 2021 dated
20.08.2022 needs to be examined to find out whether
such an exercise of downsizing can be held to be
justifiable. Paragraph Nos.7 to 23 of the affidavit-in-
reply of the State read as under:
"7. I respectfully say that there is not going to be an
increase in any manner in the sanctioned posts in question,
more particularly in view of change in teaching pattern
referred to above. Further, keeping in mind the aforesaid
change in the pattern of teaching, I respectfully say that as
per the AICTE Approval Process Handbook 2020-21, Tuition
Fee Waiver does not fall under the definition of "Approved
Intake", and instead, the same falls under the definition of
"Supernumerary seats", and thus considering the fact that
there cannot be an increase in the sanctioned posts of
lecturers due to the change in the teaching pattern, the
averment made by the petitioners in this regard, is baseless
and deserves to be rejected. A copy of the relevant extract
from the AICTE Approval Process Handbook 2020-21 is
annexed hereto and marked as Annexure-III. Besides, the
number of vacancies is limited by the strength sanctioned by
the State Government in consultation with the Finance
Department.
8. With reference to the averment raised with
reference to the G.R. dated 07.02.2020, I deny the contention
raised by the petitioners herein that the impugned
Government Resolution dated 07.02.2020 is vague and
C/SCA/18352/2019 CAV JUDGMENT DATED: 07/10/2022
appears to have been passed without following the proper
procedure as contemplated under the law. In this behalf, I
respectfully say that the State Government, in its Education
Department, has issued the said Government Resolution dated
07.02.2020, wherein, a decision has been taken to revise the
students' sanctioned intake in Government Engineering
Colleges and Government Polytechnic Colleges from the
academic year 2020-2021, taking into consideration the
substantial reduction in admission of students in the previous
years. Annexed hereto and marked as Annexure-IV is a copy
of the said Government Resolution dated 07.02.2020.
9. I respectfully say that accordingly, as mentioned in the
said Government Resolution, it has been resolved to revise the
intake in various branches of Engineering in 23 Government
Polytechnic Colleges and 11 Government Engineering Colleges
with effect from the academic year 2020-21, whereby, such
decision has been taken while considering the overall scenario
of the admission in Government diploma institutes. To
substantiate more on the same, I respectfully say that in the
academic year of 2018-19, the total intake (first year) of the
students was 3990 against which, 3552 students were
admitted leaving the vacant seats to the tune of 438;
similarly, in the academic year of 2019-20, the total intake
(first year) of the students was increased to 5062 against
which, only 3447 seats were filled in, leaving the vacant seats
to the tune of 1615. In this behalf, I respectfully say that by
virtue of the aforesaid Government Resolution dated
07.02.2020, owing to the number of the vacancy of 1615 in
the previous academic year of 2019-20, the sanctioned
student intake had to be reduced to 3750 for the year 2020-
21. I respectfully say that even when there is an
implementation of 25% EWS quota, the vacancy has
increased, more particularly in the year 2019-20 wherein the
vacancy has increased drastically to 1615 and reduced only
1312 seats in the year 2020-21 by virtue of GR dated
07.02.2020. The said details over and above the mentioned
for certain branches are reproduced in a tabular form as
under:
MECHANICAL ENGINEERING
The GR dated 07.02.2020 for reduction of student
sanctioned intake in year 2020-2021 was passed by
taking into consideration of last 5 years data of vacant
seat in Diploma Mechanical Engineering branch, as per
the table annexed here to it can be say that every year
the total vacant seats are increasing, though in year
C/SCA/18352/2019 CAV JUDGMENT DATED: 07/10/2022
2019-2020 implementation of EWS scheme and there
was 25% increase in total intake than also 1615 seats
remain vacant in year 2019-2020.
Subsequently GR dated 27.07.2020 passed for
reduction of sanctioned post of all faculty.
In Year 2019-2020, there was an increase in student intake of
5062-3990 = 1072.
In Year 2020-2021, there was a decrease in student intake of
5062-3750 = 1312.
DEGREE IN ELECTRONICS AND
COMMUNICATION (EC) ENGINEERING
Admission data of last 5 years
C/SCA/18352/2019 CAV JUDGMENT DATED: 07/10/2022
In Year 2019-2020, there was a increase in student intake of
1380-1725 = 345.
In Year 2020-2021, there was a decrease in student intake of
1725-1014 = 711.
Though 711 seats reduced from 1725 to 1014 in year 2020-21,
still there was (881-751) = 130 less students took admission
in Degree EC Engineering branch.
DIPLOMA IN ELECTRICAL ENGINEERING
Admission data of last 5 years
C/SCA/18352/2019 CAV JUDGMENT DATED: 07/10/2022
In Year 2019-2020, there was a increase in student
intake of 4726-3720 = 1006.
In Year 2020-2021, there was a decrease in student
intake of 4726-3451 = 1275.
Though 1275 seats reduced from 4726 to 3451, still
there was (3117-2214) = 903 less students took
admission in Diploma Electrical Engineering branch.
10. Hence, considering the prevailing situation as
explained hereinabove, I respectfully say that the State
Government has taken a conscious decision in reducing
the total student intake as against the prevailing
vacancy and thus, said impugned Government
Resolution dated 07.02.2020 was in fact a necessary
action. To further support the above submission, the
overall data for the state of Gujarat inclusive of all
institutes is also collected and the same is reproduced
in a tabular form as under:
ADMISSION DATA OF DIPLOMA INSTITUTES IN
STATE OF GUJARAT:
DIPLOMA ADMISSION SUMMARY
Admitted
Year Apply Gov Admitted SFI
2018-19 60095 16693 24917
2019-20 53240 17193 22417
2020-21 47534 13170 21920
2021-22 55359 14056 25229
2022-23
( Data as on
38220
25/07/2022)
Last date for
Registration 31/07/2022
11. I say and submit to further support the action and the
contentions raised by the department, the department has
further gathered all India data from the portal of AICTE and it
also discloses glaring fact of drastic fall in admissions and
C/SCA/18352/2019 CAV JUDGMENT DATED: 07/10/2022
seats remaining vacant, which speaks for itself that the
reduction is not only justified but is also the need of time. The
said details are reproduced in a tabular form as under:
* Data is of Under graduate, Post Graduate and Diploma engineering Combined.
* Data is of all state and UT.
* Data is for only Engineering and technology courses.
* Data is of all types of institute including State institute, Central institute, Govt Aided,
Private and Deemed.
*Data is of Diploma Courses.
*Data is of all states of the India and UT.
*Data is for only Engineering and technology courses.
* Data is of all types of institute including State institute, Central institute,
Government Aided, Private and Deemed.
C/SCA/18352/2019 CAV JUDGMENT DATED: 07/10/2022
*Data is of Diploma Courses.
*Data is of all state and UT.
*Data is for only Engg and technology courses.
* Data is of Government Institute only.
11. It is further submitted that on the other hand the state
has initiated certain new programmes which are the need of
time and the futuristic development and growth depends on
such programs like Renewable Energy, Artificial Intelligence
etc. The details of the said courses and proposed intake are
reproduced hereunder in a tabular form:
Sr. No. Name of branch Increased seats
2 Information and
Communication Technology
4 Mechanical Engineering
(CAD/CAM)
12. With reference to the contentions raised in grounds
pertaining to not following the norms or requirements, when
AICTE itself has not been joined as party respondent, such
allegations and contentions are baseless. Besides, the
impugned Government Resolution dated 07.02.2020 was
issued taking into consideration the scenario of last 5 years
data pertaining to the vacant seats in the branch in question.
In fact, the process was carried out departmentally way back,
however, the decision has only been taken by way of the
resolution dated 07.02.2020. I respectfully say that merely
C/SCA/18352/2019 CAV JUDGMENT DATED: 07/10/2022
because the said impugned Government Resolution specifies
the time scale of 3-4 years, does not mean that the State
Government has limited its vision to only that particular time
frame. In this behalf, I respectfully say that the State
Government has consciously taken the decision for reduction
of student intake after considering the data of last 5 years and
the same has already been dealt with in the present affidavit.
13. Further, I respectfully say that a particular institute /
college has to upload the prevailing student intake on AICTE
web-portal, and based on that data, AICTE gives its approval
to that sanctioned student intake by issuing Extension of
Approval. In support of the same, I respectively say that as per
the Approval Process handbook of AICTE (2020-21), more
particularly clause No. 2.22.1 (d), institutions can apply for
reduction in intake in any of the course(s) within a division by
themselves in AICTE Web-Portal and maintain faculty :
student ratio accordingly without NOC from affiliating
University / Board / State Government / UT. For ready
reference, the said clause of the AICTE approval process
handbook is reproduced hereunder:
"2.22.1 Requirements and Eligibility
(d) Institutions may apply for reduction in
Intake in any of the Course(s) within a
Division by themselves in AICTE Web-Portal
and maintain Faculty: Student ratio
accordingly without NOC from affiliating
University/ Board/ State Government/ UT and
the reinstatement shall be permitted within a
Division without NBA. Institutions may apply
for reinstatement for the same by themselves
in AICTE Web-Portal. ..."
14. To further support the above contention, the deponent
craves to rely upon certain clauses of the handbook and AICTE
regulations, which would make it very clear that the procedure
followed by the deponent and its department is in consonance
with the requirements and there is no lapse. The said details
are reproduced as under:
"Supporting counter points from AICTE handbook 2021-
22:
15. As per the Approval process handbook of AICTE (2020-
2021)
C/SCA/18352/2019 CAV JUDGMENT DATED: 07/10/2022
".....Para 2.1 :-
(a) Institution offering Technical Programme(s)/
Course(s) shall not admit students without prior
approval of the Council.
(b) The applications received shall be processed as
per the norms and procedures specified in the
Approval Process Handbook. The Institution shall
also have to adhere to the existing Central, State
and Local Laws and norms of other Regulatory Body,
if applicable.
Point 2.18
Change in the Name of the Course(s)/Merger of the
course(s) /Reduction in Intake/Closure of
Programme(s)/Course(s)
2.18.1.1.1 Requirements and Eligibility:
The existing Institutions seeking approval for Change in the
Name of the Course(s) (Refer Annexure 6 or 7 of the
Approval Process Handbook)/ Reduction in Intake/ Closure
of Programme/ Course shall apply on AICTE Web-Portal
along with additional documents as per Appendix 17.9 of
the Approval Process Handbook. Reduction of courses shall
be permitted up to 50% of "Approved Intake". However, in
case of closure of course the institution shall not be
permitted for an increase in intake/New Course against
such proposed closure
The existing Institutions seeking approval for Change in the
Name of the Course(s) (Refer Annexure 6 or 7 of the
Approval Process Handbook)/ Reduction in Intake/ Closure
of Programme/ Course shall apply on AICTE Web-Portal
along with additional documents as per Appendix 17.9 of
the Approval Process Handbook. Reduction of courses shall
be permitted up to 50% of "Approved Intake". However, in
case of closure of course the institution shall not be
permitted for an increase in intake/New Course against
such proposed closure
Merger of certain Course(s) in Engineering and Technology
in Under Graduate Degree and Diploma Course(s) is
C/SCA/18352/2019 CAV JUDGMENT DATED: 07/10/2022
permitted as per the guidelines given in Annexure 6 or 7 of
the Approval Process Handbook as well as different
specializations of MBA is permitted, so that the Intake after
merger shall be equal to the sum total of the individual
Course(s) and Divisions, provided the Faculty student ratio
be maintained. Partial merger of Divisions is NOT
permissible. For example, if an Institution offering Courses
such as Computer Science and Engineering and Software
Engineering, both the Courses shall be merged EITHER to
Computer Science and Engineering or Software
Engineering.
Institutions may apply for reduction in Intake in any of the
Course(s) within a Division (nonzero) by themselves in
AICTE Web-Portal and maintain Faculty: Student ratio
accordingly without NOC from affiliating
University/Board/State Government/UT and the restoration
shall be permitted within a Division without NBA.
Institutions may apply for restoration to the same level by
themselves on the AICTE Web-Portal. However, such
restoration shall not exceed the "Approved Intake" which
was prior to such reduction.
2.18.1.1.1.1 Procedure:
a. The Scrutiny /Re-Scrutiny Committee shall verify the
additional documents as per Appendix 17.9 of the
Approval Process Handbook submitted for Change in the
Name of the Course(s)/ Merger of the Courses/ Reduction in
Intake/ Closure of Programme(s)/ Course(s), as applicable.
b. Applications of the existing Institutions which have applied
for Closure of the Programme(s)/ Course(s), and if such
application is not approved by the Council due to certain
deficiencies, the Institution shall be given Extension of
Approval with ZERO Intake in such Courses for the current
Academic Year . However, the Institution shall not be
eligible for any refund of TER Charges.
The application for the Closure of the Programme(s)/
Course(s) shall be valid for the duration of the respective
Course offered by the Institution within which the
Institution should submit the required mandatory
documents. Else, AICTE shall initiate appropriate action to
close the Programme(s)/ Course(s).
Appendix 17.9
C/SCA/18352/2019 CAV JUDGMENT DATED: 07/10/2022
Additional documents to be submitted at the time of
Scrutiny Committee for approval of the Change in the
Name of Course(s)/ Merger of the Courses/ Reduction in
Intake/ Closure of Programme(s)/Course(s)
No Objection Certificate from affiliating University/ Board with
clear mention about provisions/ alternative arrangements
made to take care of Education of existing students studying
in the Institution in the Format 2 as prescribed on the Web-
Portal (Applicable for Closure of Programme(s)/Course(s)).
NOC from University/ Board/ State Government/ UT shall not
be required for reduction of NonZero Intake of Course(s)/
Programme(s)/ Reduction in number of Division(s)/ Merger of
the Courses.
Resolution of the Trust/Society/Company approving the
Institution for Change in the Name of the Course(s)/ Merger of
the Courses/ Reduction in Intake/ Closure of Programme(s)/
Course(s)/ duly signed by the Chairman/ Secretary in the
Format 3.
....... "
16. To further support the above contention, the deponent
craves to rely upon certain clauses of the handbook and AICTE
regulations; AICTE is giving approval to the existing
institutions on yearly basis. i.e. Extension of approval (EOA ).
Institutes apply for Extension of approval (EOA ) for it's all
existing courses every year and take approval from AICTE. The
AICTE shall grant the desired approval, only after confirming
that the Applicant had fulfilled all the norms and standards
specified in the Approval Process Handbook. AICTE is giving
approval only to courses. For faculty only course wise norms
to be maintained by the State Government, but there is no
rule/procedure of council to get permission to add/alter
number of sanction post.
17. I say and submit that As per the Approval process
handbook of AICTE (2020-2021) para 7.13 , Institutions
having Course(s) where admission is less than or equal to
30% of the initial "Approved Intake" for the past 5 years
consistently (from the year of admission of the students),
the Council shall reduce 50% of the "Approved Intake" in such
Course(s) in the current Academic Year with the approval of
C/SCA/18352/2019 CAV JUDGMENT DATED: 07/10/2022
the Council. Reduction in intake by AICTE in course with less
admission From The above clause it is clear that AICTE can
reduce the seat of the institutes where consistently admission
less than 30% of approved intake. That does not mean
institute cannot reduce intake of any particular course and for
that reason only above 2.18 and annexure 17.9 is illustrated"
The said details are reproduced as under from the Approval
process handbook of AICTE (2020-2021) :
".....
7.13 Institutes having less Enrollment / Poor Academic
Performance:
(A) Institutions having less enrollment:
Institutions having Course(s) in which admissions are less
than 30% of the "Approved Intake" for the consecutive
past 5 years consistently, and if in the following year, the
admitted student strength does not exceed 50% of the
"Approved Intake" in the course(s) by filling vacant seats
through lateral entry, then the Council shall reduce the
intake by 50%, in such Course(s) in the current Academic
Year.
In the Courses approved by the Council, if the Institution
fails to admit the students/ not started the Course(s) due to
Non-affiliation by the University/ Board or Non-Fulfilment of
State Government/ UT requirements in the year of
establishment, the same shall be informed to the Council,
else ALL the Courses shall be considered for implementing
the above Clause.
The Institution falling under this category need not apply
for restoration in the next Academic Year and the Intake
shall be automatically reinstated by the Council, if the
enrolment becomes more than 30% based on the student
enrolment data provided by the Institution. However, such
Institutions shall not be eligible to apply for other
categories listed under Chapter II/ III/ V/ VI of the Approval
Process Handbook except Extension of Approval.
Further, if such Institutions apply for restoration of Intake
against the punitive action if any, in the previous Academic
Year(s) and if the earlier "Approved Intake" being restored
through EVC followed by SHC/ SAC, then this Clause shall
be applied after five years
C/SCA/18352/2019 CAV JUDGMENT DATED: 07/10/2022
(B) Institutions having poor academic
performance:
Institutes having poor academic performance in University/
Board examinations, a joint decision of respective
affiliating University / Board along with AICTE shall be
taken. The institute with poor academic performance shall
be given a warning to improve the academic performance
of the students within 2 years
......."
18. I respectfully say that in present matter, AICTE has
already approved the reduced intake and has issued the
Extension of Approval to all the institutes / colleges for the
year 2020-21. Therefore, since all the AICTE affiliated Degree
and Diploma colleges of the State have been granted an
Extension of Approval for the year 2020-2021, there remains
no question of not abiding to the regulations of the AICTE, and
thus the petitioners' contentions in this behalf ought to be
rejected.
19. I respectfully say that in response to the averment
pertaining to reduction, I respectfully say that due to the
reduction in student intake in the branch of Mechanical
engineering, the sanctioned posts of the lecturers also gets
reduced correspondingly. Before dealing with the same, it is
pertinent to mention that from the year 2018-19, AICTE has
revised the faculty: student ratio from 1:20 to 1:25. I
respectfully say that the public notice dated 06.03.2018
pertains to the Degree engineering colleges, since the said
revised faculty student ratio of 1:20 is relating to the Degree
engineering colleges, whereas in Diploma colleges, the said
faculty student ratio is 1:25. Therefore, I respectfully say that
the said notice is not applicable to the present matter. I
respectfully say that the State Government has reduced the
sanctioned posts of the lecturers because of the reduction in
the student intake. I respectfully say that the sanctioned posts
of the lecturers always depends upon the numbers
representing the student intake; if there is a sharp increase in
the student intake, then in order to maintain the faculty:
student ratio, the number of sanctioned posts of lecturers
would also increase, and the same logic will apply in the case
of reduced student intake. Therefore, I respectfully say that
considering the reduction in student intake, and in order to
maintain the said faculty: student ratio, the sanctioned posts
of lecturers will also have to be correspondingly reduced.
C/SCA/18352/2019 CAV JUDGMENT DATED: 07/10/2022
20. I respectfully say that the State Government, in its
Education Department, recently came out with a Government
Resolution dated 27.07.2020, wherein a major restructuring
has taken place in various 22 disciplines of Government
Polytechnic colleges including the branch of Mechanical
Engineering (Diploma), wherein, due to the significant
reduction in the student intake, the sanctioned posts in the
Mechanical branch came to be reduced from 540 to 450.
Annexed hereto and marked as Annexure-V is a copy of the
said GR dated 27.07.2020. I respectfully say that initially i.e.
before the restructuring, the sanctioned posts used to be 540,
out of which 425 were already filled up by the regularly GPSC
appointed lecturers and 44 were filled up by the ad-hoc /
contractual, leaving the total vacancy to the tune of 71. It is
due to the significant reduction in the admission of the
students in the polytechnic colleges, the State Government
had to issue a Government Resolution dated 27.07.2020,
whereby the sanctioned posts were reduced to 450.
Pertinently, because of such reduction in the sanctioned posts
by 90, there is a surplus staff consisting of 19 lecturers,
against which 44 are adhoc / contractual appointees. I
respectfully say that there are 111 GPSC recommended
lecturers who have already been selected and will have to be
adjusted in the sanctioned posts of 450, and since there are
no vacancies left to accommodate all the 111 GPSC
recommended lecturers, the said entire list of 111 GPSC
recommended lecturers will not be operated, and instead only
24 (Sanctioned posts 450 - 425 posts already filled up
by GPSC earlier) GPSC recommended lecturers shall be
given the posting. In such eventuality, 43 adhoc / contractual
appointees out of 44 shall have to make way for the batch of
24 GPSC recommended lecturers leaving 1 sanctioned post
available for the adhoc/ contractual appointee. The Copy of
the tabular disclosure of the above details is reproduced as
under:
C/SCA/18352/2019 CAV JUDGMENT DATED: 07/10/2022
20. I respectfully say that so far as the question of
accommodation to other corresponding branch is concerned,
the same does not arise in the first place since the students of
Mechanical engineering branch have different merit and
aspirations than that of the students belonging to any other
branch. When the adhoc / contractual Lecturers who have
been teaching in the branch of Mechanical engineering since
their initial appointments, are placed on the vacant posts in
some other branch, then such adhoc / contractual lecturers
will limit the options in terms of subjects, and will only guide
the students to go for the areas of their own comfort, which
would eventually lead to the suffering of the students. In order
to elaborate, I respectfully say that the adhoc / contractual
lecturers who used to initially teach in the Mechanical branch,
will be faced with the subjects of, say, Computer engineering
or any other branch, which they have never learnt before or
even taught in the Mechanical branch and thus, because of
this inconvenience, the students will have to suffer. Thus, the
said averment made by the petitioners is without any basis
and deserves to be rejected.
21. I say and submit as far appointment is concerned; it is
not matter of right. A candidate cannot claim as a matter of
right that the posts advertised are bound to be filled up. The
filling up of posts always depends upon the factors prevailing
at the time of filling up such posts and mere participation in a
C/SCA/18352/2019 CAV JUDGMENT DATED: 07/10/2022
particular recruitment process does not guarantee or assure
any appointment and therefore, the said contention is
improper.
23. I say and submit that as far as following the correct
method to finalize the recruitment and recommend the
candidates is concerned, the said falls under the purview of
GPSC and the state only send requisition for filling up the
posts and the same are filled up based upon
recommendations made by the GPSC, however, to briefly
clarify the filling up and reduction of posts is also done in a
proper and justified manner it cannot be said that the
procedure adopted was faulty. I say and submit that calling
candidates as per original requirement and filling up from
amongst them is not improper, in fact, calling lesser number
of candidates and filling up posts would have been prejudicial
to all those who have already participated in the recruitment
process."
40. The highlights of the decision making process as can
be culled out from the reply is as under:
* The pattern of teaching prescribed by the AICTE
which was prevalent in the year 2018-19 has
undergone a sea-change so far as the year 2019-2020
is concerned.
* The stress of AICTE is less on typical class-room
teaching and more on online programmes like open
C/SCA/18352/2019 CAV JUDGMENT DATED: 07/10/2022
subjects electives from other technical and / or
emerging subjects and project work, seminar and
internship in industry or elsewhere.
* As per the AICTE handbook, Tuition Fee Wavier
does not fall in the definition of "Approved Intake" and
instead, the same falls under the definition of
"Supernumerary Seats" and therefore the contention
that there can be no reduction based on this parameter
is a contention without merit.
* What is also evident is that in the academic year
2018-19, the total intake in the first year, of the
students was 3990 against which only 3552 were
admitted. 438 seats therefore remained vacant.
* In the academic year 2019-2020, the total intake
in the first year of the students was increased to 5062
against which only 3447 seats were filled in as a result
C/SCA/18352/2019 CAV JUDGMENT DATED: 07/10/2022
of which, 1615 seats remained vacant. This resulted in
the Government taking a decision to reduce the
sanctioned intake of students to 3750 for the year
2020-21.
* Even when there was an implementation of 25%
EWS quota, the vacancies had increased to 1615 and
then reduced to 1312 seats in the year 2020-21. This
also negates the argument of the petitioners of not
considering this parameter while examining the
decision making process.
41. The State has explained branch wise reduction in the
faculties of Mechanical Engineering, Degree in
Electronics and Communication Engineering, Diploma
in Electrical Engineering through tabular charts
reproduced in the earlier part of this judgment where
the State's affidavit is reproduced. In the Diploma
Branch of Mechanical Engineering in the year 2019-
C/SCA/18352/2019 CAV JUDGMENT DATED: 07/10/2022
2020, there was an increase in student intake of 5062-
3990 = 1072 whereas in the year 2020-21 there was
decrease in intake of 5062-3750=1312 students.
42. Similarly in EC branch, there was decrease of student
intake by 711 in the year 2020-2021.
43. In the Branch of Diploma in Electrical Engineering the
admission data of the past five years indicates that 903
less students took admission in the Diploma in
Engineering Branch.
44. The overall data indicates that a conscious decision
was taken in reducing the student intake. The data as
on 25.07.2022 indicates that in 2018-19, 60095
students applied of which 16693 took admission in
Government Polytechnic that went down in 2021-2022
to 14056 and in 2020-21 it was even much lower to
13170 admission in Government Polytechnics. The
C/SCA/18352/2019 CAV JUDGMENT DATED: 07/10/2022
department while taking a decision to reduce the
intake and prune the size of the recommendations
from GPSC and in making the revised merit list, has
done so after gathering the all India data from the
portal of the AICTE which discloses the fact that there
is a drastic fall in admissions and seats are remaining
vacant in Degree Courses in the year 2015-16, the
total enrollment was 16,78,737 which has come down
to 12,75,717 in 2020-2021, a reduction in enrollment
by 4,03,020.
45. Similarly, in Diploma Courses the total enrollment in
the year 2015-16 was 7,33,420 which came down in
2020-21 to 5,05,225. The enrollment was down by
2,28,195. Therefore, in all the enrollment over a five
year period is down by a total of 15,03,912 seats.
46. As far as the challenge on the ground of initiating new
programmes by the Government Resolution dated
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22.04.2022 is concerned, it is evident that they are
fresh futuristic proposals and no right accrues to ad-
hoc Lecturers and recommendees otherwise.
47. The Resolution of 07.02.2020 was passed taking into
consideration the scenario of the last five years data.
That is evident when the file notings were perused by
this Court, which were called for with due information
to the learned advocates to the petitions.
48. The AICTE was kept in the loop inasmuch as while
uploading the data a particular institute / college has to
upload the prevailing student intake ratio on AICTE
student intake ratio on AICTE website and based on
that data AICTE gives its approval to the sanctioned
strength student intake by issuing Extension of
Approval.
49. As per the Approval process Handbook, particularly,
C/SCA/18352/2019 CAV JUDGMENT DATED: 07/10/2022
Clause 2.22.1(d) which is reproduced suggests that
institutions can apply for reduction of any of the course
or courses within a division of themselves in AICTE
portal and maintain family: student ratio without NOC
from any University / Board / State Government. The
relevant clauses which are part of the affidavit-in-reply
filed by the State indicate that AICTE is giving approval
to the existing institutions on an year to year basis only
after confirming that the norms are followed.
50. Clause 7.13 of the Approval Process Handbook
indicates that Institutions having course(s) in which
admissions are less than 30% of the "Approval Intake"
for the consecutive past five years consistently and if
in the following year the admitted student strength
does not exceed 50% of the "Approval Intake" in the
course(s) by filling vacant seats the Council shall
reduce the intake by 50% in such course(s) in the
current academic year. The AICTE has therefore
C/SCA/18352/2019 CAV JUDGMENT DATED: 07/10/2022
approved the reduced intake and has issued the
Extension of Approval to all Institutions / Colleges for
the year 2020-2021.
51. The Resolution dated 27.07.2020 has therefore been
issued in that background where a restructuring has
taken place in various 22 disciplines of Government
Polytechnic Colleges where the sanctioned posts in the
Mechanical Branch has reduced from 540 to 450. Out
of 540 posts, 425 posts were already filled in by
regularly selected GPSC candidates and 44 were filled
in by ad-hoc / contractual Lecturers leaving a total
vacancy of 71. As a result of reduction of sanctioned
posts to 450 and since there were no vacancies to
accommodate 111, GPSC recommended candidates
only 24 (450-425) Lecturers can and shall be given
posting. In such eventuality 43 ad-hoc lecturers shall
have to make way leaving one sanctioned post
available.
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52. As pointed out by the judgments of the Hon'ble
Supreme Court in the case of Subash Chander
Marwaha (Supra) so far as appointment is
concerned, it is not a matter of right. A candidate
cannot claim as a matter of right that the posts
advertised must be filled up.
53. The GPSC as a constitutional authority acts on the
consultation with Government based on the
recommendations seat to it by the Government based
on the vacancy positions and no fault can be found if
the GPSC needs to revise its list based on the
requisitionist needs. There is no erosion of its
constitutional role.
54. For all the aforesaid reasons, Special Civil Application
Nos.2670 of 2021 and 2271 of 2021 are allowed.
Respondent - State is directed to issue appointment
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orders to such petitioners within a period of four weeks
from the date of receipt of certified copy of this
Common CAV Judgment. Rule is made absolute to that
extent. Direct Service is permitted. No costs.
55. Rest all the petitions except two petitions (namely;
Special Civil Application Nos.2670 of 2021 and 2271 of
2021) are dismissed. Interim Relief, if any, in
respective petitions stands vacated forthwith. No
orders on Civil Applications in view of disposal of the
main matters. Rule is discharged. No costs.
(BIREN VAISHNAV, J)
FURTHER ORDER
56. After pronouncement of the Judgment, learned
advocates for the petitioners of the petitions which are
dismissed requested for interim relief. Such request is
rejected.
(BIREN VAISHNAV, J)
VATSAL S. KOTECHA
