Indrajit Nandlal Trivedi vs State Of Gujarat
2022 Latest Caselaw 7758 Guj

      C/SCA/15596/2018                             JUDGMENT DATED: 09/09/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 15596 of 2018

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.Y. KOGJE
===============================================================

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

2      To be referred to the Reporter or not ?                           Yes

3      Whether their Lordships wish to see the fair copy                 No
       of the judgment ?

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

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                          INDRAJIT NANDLAL TRIVEDI
                                    Versus
                         STATE OF GUJARAT & 4 other(s)
================================================================
Appearance:
MR. EKRAMA H QURESHI(7000) for the Petitioner(s) No. 1
MS. SURBHI BHATI, AGP, for the Respondent(s) No. 1,2
NOTICE SERVED BY DS for the Respondent(s) No. 3,4,5
===============================================================
    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                               Date : 09/09/2022
                               ORAL JUDGMENT

[1] Rule. Learned Assistant Government Pleader waives service for rule on behalf of respondent Nos.1 and 2.

[2] This petition under Article 226 of the Constitution of India is filed by the petitioner with following prayers:-

"(A) Be pleased to issue a writ of mandamus, writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the arbitrary and illegal

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act on the part of the respondent no 2 in not according the recognition and not considering the period between 06.04.04 to 30.03.08 as deputation/study leave, availed by the petitioner for pursuing the PhD degree Course at Yokohama University , Japan under the aegis of the Ministry of HRD, Government of India and Government of Japan. And further be pleased to direct the respondent no 2 to consider the said period as deputation/study leave and pay the arrears of salary for the said period with interest and appropriate compensation.

B. Be pleased to issue a writ of mandamus, writ in the nature of mandamus and any other appropriate writ, order or direction directing the respondents to consider the petitioner for promotion to the post of the Professor (class-I) either on promotion basis under the Recruitment Rules of 2012 for promotion to the Post of Professor (class-I) (Annexure Z(a)) /or under the AICTE Regulations of the year 2010 and Regulations (CAS) of the year 2012 (Annexure Z(b) (colly)), with effect from the date of eligibility of the present petitioner and with due regard to the seniority of the petitioner and with all consequential benefits.

C. That pending hearing and final disposal of the present petition, the any further promotions to the post of the professor (class-I) in the Government Engineering Colleges, within the State of Gujarat, may kindly be stayed. Or in the alternative ). That the petitioner be considered for the post of the Professor (lass-I) in the DPC or by way of interim DPC, and accorded the promotion if there is nothing adverse to him on any other count, subject to the final outcome of the present petition."

[3] Essentially, it is the case of the petitioner that as the petitioner was selected under the scholarship program for further studies in his discipline in Japan, he had to leave for Japan for particular period and that he had undertaken the necessary procedure however, the authorities have at the relevant time not considered the applications made by the petitioner and have treated the petitioner to be on leave without absence. Therefore, the condition of service of the petitioner is affected as the petitioner is not considered for

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promotion.

[4] Learned advocate for the petitioner submitted that it was under the Sponsorship of Ministry of Human Resource Development, Government of India that after the strict selection process amongst several candidates all over India, the petitioner was selected for pursuing Ph.D. Degree Course at Yokohama University, Japan. It is submitted that the petitioner was getting full scholarship and therefore, he had not even burdened the State or Central Government for pursuing his further education in Japan. It is submitted that the petitioner was having a meritorious career and therefore, only he was selected to undergo the course however, the respondent authorities rather than appreciating the effort of the petitioner which would benefit the Engineering College where the petitioner was working and ultimately the petitioner has been punished. It is submitted that the issue pertains to the leave of the petitioner for two periods at different point of time, first being in the year between 2004 to 2008, where the petitioner had actually to undertake the further course and thereafter, for a period between 2009 to 2010, where the petitioner was required to attend the formalities of Convocation at Japan.

[4.1] Learned advocate for the petitioner submitted that the respondent authorities have shown complete disregard to the merits of the petitioner and have not taken into consideration the applications made time and again and even on the verge when the petitioner was about to travel to Japan, he made a last effort by making communication directly to the Director of

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Technical Education, however no response was received and while the petitioner was in Japan, the petitioner was addressed with a communication, stating that no application from the petitioner has been received and therefore, the petitioner was treated to be on unauthorized leave.

[4.2] Learned advocate for the petitioner submitted that in so far as the period between 2009 and 2010 is concerned, the petitioner was departmentally proceeded and was inflicted the punishment of 'warning' after due inquiry, whereas, the petitioner is still not aware about the status of the respondent authorities treating the petitioner to be on unauthorized leave for the period between 2004 and 2008. It is today only that the petitioner was made aware when the learned Assistant Government Pleader has placed on record a communication dated 02.02.2009, addressed to the Under Secretary, Technical Education by a Joint Technical Education Director, which goes on to state that the preliminary inquiry is contemplated and Preliminary Inquiry Officer has been appointed. Learned advocate for the petitioner has emphatically state that till date no communication of this order dated 02.02.2009 has been made by the petitioner and in fact the petitioner is not even aware of any such preliminary inquiry though the petitioner has been attending his duties since he returned from Japan i.e. from 2008. It is submitted that the petitioner has rendered meritorious services to the institution where he posted and there is no inquiry or adverse remarks to his working as an Associate Professor, Class-I and till date the case of the petitioner is not considered for promotion to the post of Professor, Class-I. It is submitted that

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the other colleagues of the petitioner who were identically situated in so far as their work experience and education qualification is concerned, they have been granted promotion at the relevant time and have now stolen march over the petitioner.

[4.3] Learned advocate brought to the notice of this Court a subsequent development, where the petitioner had appeared in a open exam, conducted by GPSC and after due selection procedure, was selected for the post of Professor, Class-I and accordingly, he has been given the appointment of a Professor, Class-I however, the petitioner has been given the appointment of Professor in a subject other than in which the petitioner has proficiency. The petitioner is qualified for Professor, Class-I in Electrical Branch, whereas by way of selection procedure, the petitioner has been given appointment of Professor in Power Electronics, which is a corresponding discipline. However, the claim of the petitioner is that the instead of 2019, the petitioner was entitled to promotion prior to 2019 i.e. when the colleagues of the petitioner or the juniors of the petitioner were given promotion. Learned advocate submitted that the petitioner though now senior most Associate Professor (class-I) possessing the requisite qualifications is still deprived from his rightful promotion. On the contrary the persons junior to the petitioner and colleagues are already promoted. One Mr. R.A. Thaker, Professor who is Collegue to the petitioner is already promoted as Professor (class-I) in VGEC, Chnadkheda. That the colleagues of the petitioner who are already promoted as Professor (class-I) are Mr. Vinay Purani of applied mechanics,

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B.J. Shah of Applied Mechanics, N.K. Arora of Applied mechanics (Now in charge Principal of Respondent No.3 College) and N.N. Guptani of Instrumentation and Control branch. That not only this but, as evident from the seniority list of the year 2014, the persons namely Mr. S.N.Pandya, Mr. Chudasma and one Mr. Badgujjar, who are junior to the present petitioner are already elevated as Professor (class-I).

[4.4] It is lastly submitted that despite having all the merits, the petitioner is deprived of the promotion which otherwise was given to the contemporary colleagues as well as juniors to the petitioner.

[5] As against this, learned Assistant Government Pleader has submitted that the petitioner has remained absent without leave and therefore, as per the requirement of the State Government for the purpose of being considered for promotion, his service for a period of five years immediately before the Departmental Promotion Committee (for short "DPC") is required to be considered. However, as the petitioner was absent from duty, his performance was never assessed and therefore, the DPC could not give an opinion for the purpose of promotion. Learned AGP further submitted that the petitioner has without any prior intimation chosen to leave the service and has traveled abroad. It was necessary for him to take a prior permission and get the leave for study sanctioned as per the requirement of the Gujarat Civil Service Leave Rules. In absence of any such procedure undertaken by the petitioner, it cannot be stated that the State have acted dehors the rule governing study leave. She has drawn attention of this Court to a Circular dated 22.12.1976 and submitted that for

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the purpose of admission to Ph.D. Course, permission to join such course will be on the basis of the seniority of members and approval of the Director is essential before any person is permitted to join Ph.D. Course. In the present case, there is no such approval and hence, the petitioner's case was rightly not considered by the State Government and treated him to be on leave.

[5.1] Learned AGP has lastly submitted that in so far as his leave for a period between 2004 to 2008 is concerned, she places on record a communication dated 02.02.2019, addressed by the Joint Technical Director to the Under Secretary of Technical Education, wherein it is mentioned that for the period of absence between 06.04.2004 to 30.03.2008, the department is contemplating preliminary inquiry and has appointed preliminary Inquiry Officer. Learned AGP has also placed on record a communication dated 30.07.2015 by the Joint Technical Education Director to the Secretary of Technical Education Department, wherein it is indicated that the DPC was conducted in the year 2015, the case of the petitioner was also considered however, in the remarks column of the aforesaid communication, it is record that on account of pending inquiry the case of the petitioner for promotion was not considered.

[6] In rejoinder, learned advocate for the petitioner submitted that the learned AGP places on record a communication dated 02.02.2019, addressed by the Joint Technical Director to the Under Secretary of Technical Education, wherein it is mentioned that for the period of absence between 06.04.2004 to 30.03.2008, the department is

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contemplating preliminary inquiry and has appointed preliminary Inquiry Officer.

[7] The Court has heard learned advocates for the parties and perused the documents placed on record. The matter is filed in the year 2018 and it pertains to two issues which are coming in way of the petitioner for his progress in his discipline. The claim of the petitioner is that the period during which he was undertaking the further progress of Ph.D. in his discipline at Japan be treated as a period for study leave to be on service without pay and the second aspect being to consider the case of the petitioner for the purpose of promotion alongwith the contemporary colleagues or the juniors of the petitioner.

[8] To which, reply of the State Government was also filed at the relevant time, however, it was only today that two documents have been placed on record by learned AGP and those two documents are pertaining to the very points which are raised by the petitioner. The Court does not find any mention with regards to these two documents in the affidavit in reply of the State Government or the documents annexed alongwith such affidavit. Therefore, with the consent of both the parties, these two documents are taken on record as calling upon for the formalities of affidavit would further consume more time.

[9] Upon the instructions of B.G. Chaudhari, Administrative Office, Department of Technical Education, learned AGP submitted that the communication dated 02.02.2019, the Department cannot surely state as to whether the petitioner was at any stage was given such communication. On the other

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hand, learned advocate for the petitioner has stated, under the instructions at bar, that the petitioner has never received such a communication and is also not made aware of any preliminary inquiry contemplated.

[10] The pleadings indicate that the petitioner was appointed as a Assistant Professor and was working with L.D. Engineering College, Ahmedabad and was appointed on 22.02.1995 as a Lecturer after due selection procedure. He was appointed as Lecturer in Electrical Engineering. Subsequently, it appears that the petitioner was also called also qualified for Masters of Engineering and was promoted to the post of Assistant Professor, Class-I in Electrical Engineering. It appears that there was a public advertisement by the Ministry of Human Resources Development, Department of Secondary and Higher Education for the purpose of Japanese Government Scholarship, 2004 to which the petitioner had applied. The fact of such application was communicated by the petitioner by way of letter dated 02.08.2003, wherein the petitioner has categorically stated that his application for Japanese Government Scholarship, 2004 for research in Power System was selected after the interview by Government of India, Ministry of HRD, which is being held on 08.08.2003 and the scholarship was for the purpose of research at Japan for particular a period, but there would not be any financial burden on the State Government for the purpose. This application, according to the Court, was within the time and was addressed to the concerned office through the Principal of L.D. Engineering College. The aforesaid letter, a copy was also addressed through the Principal to the Director of Technical

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Education. The prayer was specifically made for issuing 'No Objection Certificate' so that the same could be produced before the interview panel to enable the petitioner to join the course.

[11] It appears that after due selection procedure, the petitioner was selected for the course which the petitioner was informed by a communication from the Ministry of HRD dated 24.02.2004, where the name of the petitioner appeared amongst the selected students at Sr. No.19. The petitioner was also informed by a communication dated 17.02.2004 by the Japan Culture and Information Center, Embassy of Japan through the Adviser for scholarship for making necessary arrangement for pursuing his course at Japan which would to commence between 1st to 7th April, 2004, by which time the petitioner will have to reach Japan and it was specifically stated that the date for joining would not be compromised as the entire expenditure is borne by the Government of Japan. From the record, it appears that the armed with this selection, the petitioner had communicated to the authorities by following due procedure which included giving of an undertaking by the employer of the petitioner which at Annexure-L indicates that such undertaking on behalf of the petitioner was given by the immediate employer namely the Principal of L.D.Engineering College. It is also apparent that at the relevant time when the procedure was going on, the Education Department had also issued 'No Objection Certificate' so as to enable the petitioner to attend the interview scheduled at New Delhi. The petitioner's proposal, complete in all respect appears to have been given to the

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Principal of L.D. Engineering College and therefore, according to the petitioner, the procedure as such was completed. Despite this action taken by the petitioner well in advance, there was no response on the part of the respondent authorities and therefore, lastly on a day prior to the petitioner leaving the country for pursuing his education at Japan, addressed a last letter so that necessary formalities could have been completed.

[12] It appears that thereafter, the petitioner has travelled to Japan and successfully completed his course and while he was in the midst of his course, the communication dated 02.08.2004 was made to the petitioner informing that the without taking prior permission, the petitioner has gone aboard and has not resumed service and therefore, the petitioner was called upon to answer why absence of petitioner be not treated as unauthorized leave. This immediately the petitioner has responded from Japan on 06.09.2004 again indicating the exigency in which the petitioner had to honour the commitment as it would have invoked the financial consequences not only for the petitioner, but also for the Government of India. Thereafter, it appears that the matter has rested there and then.

[13] In the meantime, the petitioner had also made communication dated 18.11.2005 to the Secretary of Higher and Technical Education for considering the petitioner to be on deputation which was the policy of the Government for treating the candidates who are selected for pursuing higher studies at abroad by the Foreign Government. Such communication is placed at page-50 which has the noting of

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the Principal of L.D.Enginering, recommending the case of the petitioner for on deputation basis. To this also, there does not appear to be any response and therefore, continuously the petitioner had been making representations in this regard. Thereafter, upon completion of the course successfully, returned and resumed his service as Assistant Professor. After resuming the petitioner was required to once again visit Japan for temporary period of 10 days in August-2009 for the formality of course completion and thereafter again for a period of 16 days in the month of January-2010 and in the month of March-April, 2010 for a period of seven days. This was the subject matter of inquiry against the petitioner and by an order dated 14.09.2016 (Annexure-P) by the completion of inquiry, was only 'warned' for not repeating the mistake of travelling without prior intimation. The petitioner was conferred by the Yokohma University, Japan, Doctor of Engineering (Annexure-Q). The matter had rested there and thereafter, time and again process for permission was undertaken, but petitioner was not considered. It would be appropriate to refer to one such procedure which had taken place in the year 2015, where the DPC had met and found the petitioner to be qualified and eligible, but on account of the pendency of the inquiry regarding his visit, the promotion was not given to the petitioner. It is pertinent to observe that in the remark column of the DPC, it was observed that after the completion of the inquiry, the case would be considered. The reference thus made by the DPC was to the inquiry which had culminated into an order dated 14.09.2016 (Annexure-P), where the petitioner was only 'warned'. Therefore, in the opinion of the Court, after completion of the inquiry, as

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observed by the DPC, the petitioner had become eligible in all respect for the promotion. However, as is reported even after the DPC of 2015, there was yet another DPC, where also the case of the petitioner appears to have been missed. It was ultimately in the year 2019 that the petitioner responded to the advertisement of appointment as Professor in the Power Electronics, where the petitioner applied and was duly selected and given appointment as a Professor, but with effect from the year 2019. Till the matter was taken for hearing from time to time, nothing was placed on record regarding the outcome of the representation being made by the petitioner pursuant to the notice to the petitioner in the year 2004, asking the petitioner to show cause as to why his absence should not be treated as unauthorized leave, to which petitioner had responded. But today, learned AGP has placed on record a communication dated 02.02.2019 though such communication was never communicated to the petitioner nor the petitioner has aware of such communication, but the Court has taken on record as it has been produced by learned AGP and has given thoughtful consideration to this aspect where respondent Department has thought it fit to undertake preliminary inquiry. This in the opinion of the Court, appears to be a process of witch-hunting where meritorious candidate appears to have been targeted for his meritorious performance and having the credit of being selected all over India basis to undertake the Doctorate course in Japan by fully paid scholarship by the Japanese Government. The case of the petitioner was examined by Ministry of HRD, Government of India and on the other hand, the petitioner is now being made to face the consequences which the petitioner does not desire.

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[14] It would also be appropriate to mention that this communication dated 02.02.2019, contemplating preliminary inquiry about his absenteeism for a period between 06.04.2004 to 30.03.2008 is hopelessly belated. What has inspired the authorities to rise from the slumber after period of 10 years, which requires a probe. However, telling effect of such action would be only on the further progress of the petitioner. The Court therefore, has no hesitation in quashing and setting aside the communication dated 02.02.2019 and direct that the case of the petitioner for not attending his duties between the period 06.04.2004 to 30.03.2008 when the petitioner was actually pursuing higher education at Japan be treated as on service, but without pay. The Court also directs that no further inquiry be initiated in this regard. As this Court is satisfied that the petitioner has made all efforts for seeking prior permission for study leave through proper channel, which the respondent authorities failed to respond within appropriate time and the petitioner had to travel for pursuing his higher education as the course module was inflexible.

[15] The submission of learned AGP regarding no chance for appraising the performance of the petitioner of five years prior to meeting of DPC, cannot be countenanced on the face of the fact that the petitioner after having resumed upon his return from Japan has worked as Assistant Professor till 2015. At least that much period was available for assessment which in fact the DPC has considered his name as per the communication dated 30.07.2015 placed today on record, but has not considered the case only on account of the pendency of inquiry regarding his absenteeism in the year 2009-2010 for

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which in the year 2006, the petitioner after the inquiry was only 'warned'.

[16] In view of the aforesaid, the Court deems it fit to observe that the petitioner's case be considered for the purpose of promotion to the post of Professor from the date on which his contemporary or his juniors were promoted as the petitioner on other grounds was having all the eligibility. Therefore, the Court directs that the respondent authorities to consider the case of the petitioner for promotion to the post of Professor, after examining the relevant factors pertaining to his service record and pass necessary orders to overcome the injustice that is meted out to the petitioner.

[17] With the aforesaid direction, the petition stands allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(A.Y. KOGJE, J) SIDDHARTH