Gujarat High Court

Panchal Dipal Hareshbhai vs State Of Gujarat on 23 September, 2022

Bench: Bhargav D. Karia

C/SCA/12926/2021                             CAV JUDGMENT DATED: 23/09/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 12926 of 2021

                              With
         R/SPECIAL CIVIL APPLICATION NO. 11220 of 2018
                              With
        CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2019
        In R/SPECIAL CIVIL APPLICATION NO. 11220 of 2018
                              With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2021
        In R/SPECIAL CIVIL APPLICATION NO. 11220 of 2018
                              With
         R/SPECIAL CIVIL APPLICATION NO. 11817 of 2017
                              With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2021
        In R/SPECIAL CIVIL APPLICATION NO. 11817 of 2017
                              With
         R/SPECIAL CIVIL APPLICATION NO. 12012 of 2017
                              With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2021
        In R/SPECIAL CIVIL APPLICATION NO. 12012 of 2017
                              With
         R/SPECIAL CIVIL APPLICATION NO. 20691 of 2016
                              With
         R/SPECIAL CIVIL APPLICATION NO. 20692 of 2016
                              With
         R/SPECIAL CIVIL APPLICATION NO. 20693 of 2016
                              With
         R/SPECIAL CIVIL APPLICATION NO. 21101 of 2016
                              With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2021
        In R/SPECIAL CIVIL APPLICATION NO. 21101 of 2016
                              With
         R/SPECIAL CIVIL APPLICATION NO. 21102 of 2016
                              With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2021
        In R/SPECIAL CIVIL APPLICATION NO. 21102 of 2016
                              With
         R/SPECIAL CIVIL APPLICATION NO. 21105 of 2016
                              With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2021
        In R/SPECIAL CIVIL APPLICATION NO. 21105 of 2016
                              With
         R/SPECIAL CIVIL APPLICATION NO. 21106 of 2016
                              With



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     C/SCA/12926/2021                                 CAV JUDGMENT DATED: 23/09/2022




    CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2021
            In R/SPECIAL CIVIL APPLICATION NO. 21106 of 2016
                                  With
             R/SPECIAL CIVIL APPLICATION NO. 14622 of 2017
                                  With
    CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2021
            In R/SPECIAL CIVIL APPLICATION NO. 14622 of 2017
                                  With
             R/SPECIAL CIVIL APPLICATION NO. 14623 of 2017
                                  With
    CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2021
            In R/SPECIAL CIVIL APPLICATION NO. 14623 of 2017
                                  With
             R/SPECIAL CIVIL APPLICATION NO. 14624 of 2017
                                  With
    CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2021
            In R/SPECIAL CIVIL APPLICATION NO. 14624 of 2017
                                  With
             R/SPECIAL CIVIL APPLICATION NO. 14625 of 2017
                                  With
    CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2021
            In R/SPECIAL CIVIL APPLICATION NO. 14625 of 2017

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

================================================================

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 ?

================================================================ PANCHAL DIPAL HARESHBHAI & 195 other(s) Versus STATE OF GUJARAT

================================================================

C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022

Appearance:

KAUSHAL H PATEL(9328) for the Petitioner(s) No. 1,10,100,101,102,103,104,105,106,107,108,109,11,110,111,112,113,114,115 ,116,117,118,119,12,120,121,122,123,124,125,126,127,128,129,13,130,131, 132,133,134,135,136,137,138,139,14,140,141,142,143,144,145,146,147,148, 149,15,150,151,152,153,154,155,156,157,158,159,16,160,161,162,163,164,1 65,166,167,168,169,17,170,171,172,173,174,175,176,177,178,179,18,180,18 1,182,183,184,185,186,187,188,189,19,190,191,192,193,194,195,196,2,20,2 1,22,23,24,25,26,27,28,29,3,30,31,32,33,34,35,36,37,38,39,4,40,41,42,43,44, 45,46,47,48,49,5,50,51,52,53,54,55,56,57,58,59,6,60,61,62,63,64,65,66,67,6 8,69,7,70,71,72,73,74,75,76,77,78,79,8,80,81,82,83,84,85,86,87,88,89,9,90,9 1,92,93,94,95,96,97,98,99 MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1,10,100,101,102,103,104,105,106,107,108,109,11,110,111,112,113,114,115 ,116,117,118,119,12,120,121,122,123,124,125,126,127,128,129,13,130,131, 132,133,134,135,136,137,138,139,14,140,141,142,143,144,145,146,147,148, 149,15,150,151,152,153,154,155,156,157,158,159,16,160,161,162,163,164,1 65,166,167,168,169,17,170,171,172,173,174,175,176,177,178,179,18,180,18 1,182,183,184,185,186,187,188,189,19,190,191,192,193,194,195,196,2,20,2 1,22,23,24,25,26,27,28,29,3,30,31,32,33,34,35,36,37,38,39,4,40,41,42,43,44, 45,46,47,48,49,5,50,51,52,53,54,55,56,57,58,59,6,60,61,62,63,64,65,66,67,6 8,69,7,70,71,72,73,74,75,76,77,78,79,8,80,81,82,83,84,85,86,87,88,89,9,90,9 1,92,93,94,95,96,97,98,99 ULLASH N GOHIL(8357) for the Petitioner(s) No. 1,10,100,101,102,103,104,105,106,107,108,109,11,110,111,112,113,114,115 ,116,117,118,119,12,120,121,122,123,124,125,126,127,128,129,13,130,131, 132,133,134,135,136,137,138,139,14,140,141,142,143,144,145,146,147,148, 149,15,150,151,152,153,154,155,156,157,158,159,16,160,161,162,163,164,1 65,166,167,168,169,17,170,171,172,173,174,175,176,177,178,179,18,180,18 1,182,183,184,185,186,187,188,189,19,190,191,192,193,194,195,196,2,20,2 1,22,23,24,25,26,27,28,29,3,30,31,32,33,34,35,36,37,38,39,4,40,41,42,43,44, 45,46,47,48,49,5,50,51,52,53,54,55,56,57,58,59,6,60,61,62,63,64,65,66,67,6 8,69,7,70,71,72,73,74,75,76,77,78,79,8,80,81,82,83,84,85,86,87,88,89,9,90,9 1,92,93,94,95,96,97,98,99 MS NIDHI P BAROT, MR AD OZA , MS NIYATI V. VAISHNAV for the petitioners.

MR ALKESH N SHAH, MRS YOGINI V PARIKH, MS NOOPUR V PARIKH, MRS NISHA M PARIKH, MS MEGHA JANI for the Respondents.

DS AFF.NOT FILED (N) for the Respondent(s) No. 3 MR ISHAN JOSHI , AGP for the Respondent-State. ================================================================

CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

Date : 23/09/2022

CAV JUDGMENT

C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022

1. This group of petitions are filed challenging

the Government Resolution dated 3.2.2016

restraining the petitioners from carrying out

further studies in various institutions of

the country under the Qualify Improvement

Program (For short "QIP").

2. As these petitions involve common controversy

with regard to the aforesaid Government

Resolution dated 3.2.2016, the same were

heard analogously and are being disposed of

by this common judgment.

3. The petitioners are serving as Lecturers as

well as Assistant Professors in Government

Polytechnics and Engineering Colleges in the

State of Gujarat after being duly selected

through the prescribed procedure conducted by

the Gujarat Public Service Commission. The

petitioners possess requisite qualification

C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022

of respective branches where they are serving

as Lecturers or Assistant Professors.

4. The petitioners are entitled to benefits of

QIP policy framed by All India Council for

Technical Education for the purpose of

continuous growth within the faculties of

Engineering Colleges for further studies in

the respective fields and the concerned

department so as to enhance their knowledge

as well as the teaching skills in view of

continuous development in technology in

engineering and other subjects.

5. As per the guidelines of the All India

Council for Technical Education (AICTE), the

Faculty members can be permitted to pursue

further studies for a period of five years

under QIP policy on deputation drawing full

salary without considering break in service.

C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022

6. The petitioners are also entitled to get

additional degree of Ph.D. for promotion in

relevant branch or Masters Degree in

appropriate branch if petitioners want to be

promoted to the post of Principal or Head of

the Department as per the requisite

eligibility criteria.

7. The petitioners are therefore, required to

pursue further studies as per QIP policy of

AICTE. The petitioners were permitted to

pursue further studies of Post Graduation as

well as of Doctorate as per Government

Resolution dated 9.08.1999 as per QIP policy

and accordingly, 30 faculties from Diploma

Polytechnics and 30 faculties from Degree

Engineering Colleges based on their seniority

were permitted to pursue their further

studies after executing a bond of Rs. 15 Lakh

for a period of 5 years with the Head Office.

C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022

8. Thereafter it appears that by the impugned

Government Resolution dated 3.02.2016, it is

provided that 40 candidates each from

Polytechnic colleges as well as Degree

Engineering Colleges would be permitted to

pursue further studies for a maximum period

of two years instead of five years with half

salary. By further circular dated 10.07.2018

also, it was clarified to implement the

resolution dated 3.2.2016.

9. In view of aforesaid resolution, various

institutes such as IITs and NITs have banned

the candidates from the Gujarat State as the

course duration is more than two years.

10. Therefore, various petitions are

preferred challenging the impugned resolution

which are admitted and interim relief is

granted by this Court permitting the

petitioners to pursue further study with full

C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022

salary and allowance on deputation.

11. It appears that thereafter the

respondents permitted the employees to pursue

further studies for a period of two years

with work load and hence they were able to

draw full salary but in return they had to

manage the lectures and work of the institute

accordingly. By order dated 4.10.2019, the

exercise to permit the employees to pursue

further studies with work load was

discontinued and therefore, the petitioners

were again forced to pursue further studies

on half salary only for a period of two

years.

12. Heard learned advocates Mr.

S.P.Majmudar, Mr. Kaushal H. Patel, Mr.

Ullash N. Gohil, Ms. Nidhi P. Barot, Mr.A.D.

Oza, Ms. Niyati V. Vaishnav for the

petitioners, learned advocates Mr. Alkesh N.

C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022

Shah, Mrs. Yogini V. Parikh, Ms. Noopur V.

Parikh, Mrs. Nisha M.Parikh for the

respondents and learned Assistant Government

Pleader Mr. Ishan Joshi for the respondent-

State.

13. It was submitted that the impugned

resolution is in violation of Article 14,

19(1)(g) and 21 of the Constitution of India

as similarly situated employees from

different States of the country are permitted

to pursue further studies as per QIP policy

whereas the petitioners are deprived of the

same.

14. It was submitted that as per the QIP

policy, the petitioners are entitled to

pursue further studies for five years on

deputation and normal salary and allowances

are required to be paid by the parent

institute. Reliance was placed on clause 3 of

C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022

QIP policy at page no. 116 of the petition.

15. In support of such submission reliance

was placed on the decision of Hon'ble Supreme

Court in case of State of T.N. and another v.

Adhiyaman Educational & Research Institute

and others reported in (1995) 4 Supreme Court

Cases 104, wherein it is held that no policy

of the State or University can be in

violation with the All India Council of

Technical Education Act, 1987 (For short "the

AICTE Act, 1987") and policies. It was

therefore, submitted that the impugned

resolution is required to be quashed and set

aside and the petitioners be permitted to

pursue further studies for five years on

deputation with full salary.

16. It was further submitted that the

petitioners are having burden of loans taken

for different purposes and it is difficult

C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022

for them to pursue further studies on reduced

half salary. It was pointed out that impugned

Government Resolution is in breach of Article

14 because similarly situated persons from

other States have been permitted to pursue

further studies under QIP policy of AICTE. It

was submitted that various employees similar

to the petitioners have completed Post

Graduation as well as Doctorate courses under

QIP policy. It was pointed out that as the

petitioners are not granted admission by

various institutes in view of impugned

Government Resolution, the petitioners are

deprived of further studies for becoming

eligible for higher grade pay and promotion.

17. It was submitted that the AICTE Act,

1987 is a Central Act and therefore, no

resolution or policy of the State Government

can be in violation thereof.

C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022

18. On the other hand, learned Assistant

Government Pleader Mr. Ishan Joshi for the

respondents submitted that service conditions

of the petitioners are governed by Gujarat

Civil Service (Leave) Rules, 2002 (For short

"the Rules, 2002") and the impugned

resolution is as per Rules 57, 77, 78 and 84

of the said Rules. It was submitted that the

Rules,2002 are framed under Article 309 of

the Constitution of India and the presumption

has to be drawn in favour of the Government

Resolution and therefore, impugned Government

Resolution has to be read as part of the

statutory rules.

19. Reliance was placed on the following

averments made in affidavit in reply filed on

behalf of the Director, Commissionerate of

Technical Education, Gandhinagar :

"7. The answering deponent states and submits that the 'Quality Improvement

C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022

Program' as initiated by the All India Council for Technical Education on which reliance is being placed by the petitioner is at best a program being monitored by All India Council for Technical Education (page 115), as the AICTE Act is of the year 1987 and a 'Quality Improvement Program' was initiated in the year 1970 the said fact is brought to the notice of the Hon'ble Court to demonstrate and contest that the program was instituted and initiated as administrative decision in the form of guidelines / administrative instructions/ policies and such administrative instructions cannot run contrary to statutory rules framed under Art. 309 of the Constitution of India.

8. The answering respondent further submits that assuming without prejudice to the aforementioned contention that the 'Quality Improvement Program' has a statutory backing: Gujarat Civil Service (Leave) Rules, 2002 would have precedence over such statutory conditions after taking into consideration Entry No. 41, of list 2 of the 7th Schedule of the Constitution of India.

9. The answering deponent further submits that while challenging a Government Resolution and stating that the same is against a Central statue, it would be obligatory on the part of the petitioner to demonstrate as to which provision of Central Act is being violated by the State Authorities while

C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022

passing Government Resolution.

10. In so far a as the case laws being relied upon by the petitioner before this Hon'ble Court (page no. 117), the same was with reference to establishment of technical colleges, after coming into force of the All India Technical Education Act, whether or not the State Government has power to permit starting a Technical Institution as defined in Central Act and the same was considered after taken into consideration Entry No.

of the 7th Schedule of Constitution of India, whereas, in the captioned Special Civil Application, the service conditions of such employees is put into question which is the sole domain of the State Authorities after taken into consideration the statutory rules framed under Art. 309 of the Constitution of India, those are Gujarat Civil Service (Leave) Rules, 2002 read with Entry no. 42 on list 2 of the 7th Scheduled of the Constitution of India. The case laws being relied upon by the petitioner to the captioned petition would not apply to the facts of the present case.

11. The answering deponent further submits that if the prayer is granted in as much as if the petitioners are supposed to be an deputation than such employees under deputation would be governed by the statutory rules of the parent department.

12. The answering deponent further

C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022

submits that the Quality Improvement Program' does not have any statutory backing because if in violation the Government institute would attract penal consequences which the petitioners have not been able to demonstrate and also why the ambit of 'Quality Improvement program would be administrative in nature and backed by statutory force and rules."

20. Referring to above averments, it was

submitted that the Rules, 2002 would have

precedence over statutory conditions in view

of Entry No.41 of List 2 of the 7 th Schedule

of the Constitution of India in absence of

any material to show that the said resolution

is contrary to any provisions of the Central

Act.

21. Having heard learned advocates for the

respective parties and having gone through

the relevant provisions of QIP policy as well

as the AICTE Act, 1987 and Rules, 2002, it

would be necessary to refer to the relevant

provisions of the QIP policy, AICTE Act, 1987

C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022

and Rules, 2002.

: Quality Improvement Programme policy of All

India Council for Technical Education :

"INTRODUCTION

The Government of India launched the Quality improvement Programme in the year 1970. One of the main objectives of the programme is to upgrade the expertise and capabilities of the faculty members of the degree level institutions in the country. The programme is now being implemented and monitored by All India Council for Technical Education. In "Quality Improvement Programme" only sponsored teachers are eligible for admission to both Master's & Doctoral Degree Programmes, with the aim to enable the teachers to acquire Master's & Doctoral degrees and imbibe in them a culture of research and better teaching educational capabilities by exposing them to the environment of the institutes of study.

There are three main activities under QIP serving the faculty of degree level Engineering, Pharmacy & Polytechnic Institutions:

(i) Providing opportunities to faculty members of the degree-level engineering institutions to improve their qualification by offering admissions to

C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022

Master's and Ph.D. degree Programme.

(ii) Organizing Short Term Courses at the Major QIP Centers for serving teachers.

(iii) Curriculum Development (CD) Cell activities which help to improve class room teaching and learning.

There are total 106 QIP Centers in the country under three main verticals.

                   Sl.   Category              Number of
                   No.                         Centre
                   1     QIP Engineering 83

                   3     QIP Polytechnic 10

MASTER'S AND DOCTORAL DEGREE PROGRAMMES

Opportunities are provided for faculty members of AICTE recognized degree level institutions to improve their qualification, by offering admissions in Masters and Ph.D. degree programmes.

Eligibilities:

1. Full time regular/ permanent faculty members of AICTE recognized Degree Level Colleges are eligible to apply.

2. The candidate should posses

For Master's Degree Programme

One year teaching experience at graduate level

C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022

A Bachelor's degree in the appropriate branch

For Ph.D. Degree Programme

Three year teaching experience at graduate level

A Master's degree in the appropriate branch

3. The candidate is selected and admitted, should be on deputation and his/her normal salary and allowances are to be paid by the parent institutions.

4. The candidate selected for admission under QIP will have to execute an undertaking to serve his/her parent institution for a minimum period of three years after completion of the programme."

: THE ALL INDIA COUNCIL FOR TECHNICAL EDUCATION ACT, 1987 :

"CHAPTER III

POWERS AND FUNCTIONS OF THE COUNCIL

10. Functions of the Council-It shall be the duty of the Council to take all such steps as it may think fit for ensuring coordinated and integrated development of technical education and maintenance

C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022

of standards and for the purposes of performing its functions under this Act, the Council may-

xxx

(h) formulate schemes for the initial and in-service training of teachers and identify institutions or centres and set up new centres for offering staff development programmes including continuing education of teachers;

(i) lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examinations;

(j) fix norms and guidelines for charging tuition and other fees;"

: GUIDELINES FOR STUDY LEAVE FOR THE FACULTY IN AICTE APPROVED INSTITUTIONS :

Guidelines for grant of Study leave to Teachers and other academic staff entering into service without M.

Tech./Ph. D or other higher qualification in Degree/ Diploma level Technical Institutions are given below.

i) Study leave may be granted with Pay to the appointees such as Assistant Professor/Assistant Librarian/Assistant Director of Physical Education (Degree level) or in equivalent cadre (Diploma level), to pursue for study

C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022

(M.E/M.Tech./ Ph. D) or research in the discipline directly related to his/her work.

(ii) The number of years to be put in after entry should be a minimum of three years in regular service including the probation period, keeping in mind the availability of teachers in the discipline and the vacant positions.

(iii) The paid period of study leave should be two/three years for Master Doctorial level respectively. Two years may be given in the first instance, extendable by one more year for Ph. D program, if there is satisfactory progress report by the Research Guide. Care should be taken to see that the regular academic work is not disturbed while granting study leave.

Explanation: in computing the length of service, the time during which a person was on probation or engaged as a research assistant may be reckoned provided:

xxx

(vi) Study leave may be granted not more than twice during one's career. The maximum study leave admissible during the entire service should not exceed five years."

: Gujarat Civil Service (Leave) Rules, 2002 :

"57. Half Pay Leave : (1) (a) Government employee shall be entitled to Half Pay

C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022

Leave at the rate of ten days for each half year's service. This shall be credited in advance to the leave account of the Government employee on first January and first July of every calendar year.

(b) If a Government employee is appointed during the half year, Half pay leave shall be credited to his leave account at the rate of 5/3 days for each completed calendar month of service. The Half pay leave at the credit of the Government employee on the close of the half year shall be carried forward to the next half year,

(2) (a) The credit for the half year in which a Government employee is due for retirement from service or resigns shall be afforded only at the rate of 5/3 days per completed calendar month in the half year upto the date of retirement or resignation. If the leave availed of is more than the credit so due to him, necessary adjustment shall be made in respect of leave salary overdrawn, if any;

(b) When a Government employee is removed or dismissed from the service or dies while in service, credit of Half pay leave shall be allowed at the rate of 5/ 3 days per completed calendar month in the half year in which he was removed or dismissed from service or

C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022

dies while in service. When the quantum of Half pay leave is in excess of the leave enjoyed, the over payment of leave salary shall be recovered.

77. Conditions for grant of study leave: (1) Subject to the conditions specified in this Chapter, study leave may be granted to a Government employee with due regard to the exigencies of public service to enable him to undergo, in or out of India, a special course of study consisting of higher studies or specialised training in a professional or a technical subject having a direct and close connection with the sphere of his duty.

(2) Study leave may also be granted -

(a) for a course of training or study tour in which a Government employee may not attend a regular academic or semi- academic course if the course of training or the study tour is certified to be of definite advantage to Government from the point of view of public interest and is related to sphere of duties of the Government employee;

(b) for the purpose of studies connected with the frame work or background of public administration subject to the conditions that

(i) the particular study or study tour should be approved by the authority competent to grant leave,

(ii) the Government employee should be

C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022

required to submit, on his return, a full report on the work done by him while on study leave; and

(c) for the studies which may not be closely or directly connected with the work of a Government employee, but which are capable of widening his knowledge in a manner likely to improve his abilities as a Government employee and to equip him better to collaborate with those employed in other branches of the public service.

(3) Study leave shall not be granted unless

(a) It is certified by the authority competent to grant leave that the proposed course of study or training shall be of definite advantage from the point of view of public interest;

(b) It is for prosecution of studies in subjects other than academic or literary subjects; and

(c) The Department of Economic Affairs of the Ministry of Finance, Government of India agrees to the release of foreign exchange involved in the grant of study leave, if such leave is out of India.

(4) Study leave out of India shall not be granted for the prosecution of studies in subjects for which adequate facilities exist in India or under any of the schemes administered by the Department of Economic Affairs of the Ministry of Finance or by the Ministry

C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022

of Education, Government of India.

(5) Study leave shall not ordinarily be granted to a Government employee

(a) who has rendered less than five years' service under the Government; or

(b) who does not hold a gazetted post under the Government; or

(c) who is due to retire, or has the option to retire, from the Government service within the years of the date on which he is expected to return to duty after the expiry of the leave.

(6) Study leave shall not be granted to a Government employee with such frequency as to remove him from contact with his regular work or to cause cadre disbursed owing to his absence on leave.

78 Maximum period of study leave: The maximum period of study leave, which may be granted to a Government employee, shall be - (a) ordinarily twelve months at any one time which shall not be exceeded save for exceptional reasons; and (b) during his entire service, twenty-four months in all (inclusive of study leave granted under any other rules). Note The limit of twenty four months of absence includes the period of vacation.

84. Leave salary during study leave (1) During study leave, a Government employee shall draw leave salary equal

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to the amount admissible during half pay leave.

(2) The rate of exchange prescribed by the Union Government for the conversion of leave salary (other than admissible during the first one hundred twenty days of earned leave) shall apply to the leave salary during study leave."

22. This Court passed interim order dated

19.12.2016 in Special Civil Application

No.21101/2016 and allied matters which reads

as under :

"12. Under the circumstances, the petitioners are required to be granted the protection by way of interim relief in the following manner: 1.The respondent-State shall CONTINUE to pay full salary and allowances to all the four petitioners. 2.The respondent-State shall also pass necessary order treating the petitioners on deputation and communicate the same to QIP authorities, which is under the AICTE, of theSVNIT within a period of ONE WEEK from the date of receipt of this order. 3.The petitioners shall file an undertaking that eventually, if, they do not succeed in this proceeding, they shall repay the excess amount with NINE per cent interest per annum. 4.In wake of the above directions to the State Government, Respondent No.3, in all

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these petitions, will ACCEPT the fees of the petitioners.

7.0 RULE. Learned AGP wavies service of rule on behalf of Respondent Nos. 1 and

2. Direct service is permitted qua the rest."

23. Following the aforesaid order, various

others orders were also passed protecting the

salary of the petitioners.

24. In case of some of the petitioners, the

authorities have also started recovery

proceedings as under :

Details of the Cases Pending Because of Impugned Resolution Sr. Petition Name of the Matter No. No. Parties 1 SCA 21101 ASHUTOSH KESHAV To permit further of 2016 GIRI Studies on deputation with full salary 2 SCA 21102 DIGANT SUDHIRKUMAR To permit further of 2016 MEHTA Studies on deputation with full salary 5 SCA 21105 ALPESHKUMAR To permit further of 2016 HIRABHAI MAKWANA Studies on deputation with full salary 6 SCA 20691 HARSHAL SHARADBHAI To permit further of 2016 WANI Studies on deputation with

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full salary 7 SCA 20692 GHANSHYAMKUMAR To permit further of 2016 SAJJANKUMAR SAH Studies on deputation with full salary 8 SCA 20693 KAPESHKUMAR To permit further of 2016 KARSHANBHAI PATEL Studies on deputation with full salary 9 SCA 710 of TANK HARDIK To permit further 2018 BHARATKUMAR Studies on deputation with full salary 10 SCA 6776 of CHEVALI SANDEEP Recovery Due to 2018 SHAMBHULAL Impugned Resolution dated 03.02.2016 11 SCA 8475 of MAHARSHI Recovery Due to 2018 KISHOREBHAI BHATT Impugned Resolution dated 03.02.2016 12 SCA 8476 of CHOUDHARI HARSH Recovery Due to 2018 NATHUBHAI Impugned Resolution dated 03.02.2016 13 SCA 9015 of PATEL ASHISHKUMAR Recovery Due to 2018 PARSOTTAMDAS Impugned Resolution dated 03.02.2016 14 SCA 11602 NIMESH MANGUBHAI Recovery Due to of 2018 PATEL Impugned Resolution dated 03.02.2016 15 SCA 11220 VANVIRSINH To permit Further of 2018 JAGATSINH CHAUHAN Studies on deputation with full salary 16 SCA 13772 PATEL SUMITKUMAR To Grant full pay of 2018 SHYAMJIBHAI towards the Time of Further studies 17 SCA 14343 PATEL MITESH To Grant full pay of 2018 GOVINDBHAI towards the Time

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of Further studies 18 SCA 20116 MITTAL KALABHAI Recovery Due to of 2018 PEDHADIYA Impugned Resolution dated 03.02.2016 19 SCA 12141 RAVINDRA BHUPATRAI Recovery Due to of 2019 GADHIYA Impugned Resolution dated 03.02.2016

25. The Hon'ble Supreme Court in case of

State of T.N. and another v. Adhiyaman

Educational & Research Institute and

others(supra) with regard to the question as

to whether after coming into force of the All

India Council for Technical Education Act,

1987, the State Government has power to grant

and withdraw permission to start a technical

institution as defined in the Act, 1987 held

as under :

"12.The subject "coordination and determination of standards in institutions for higher education or research and scientific and technical institutions" has always remained the special preserve of the Parliament. This was so even before the Forty Second Amendment, since Entry 11 of List 11 even then was subject, among others, to Entry 66 of List 1. After the said

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Amendment, the Constitutional position on that score has not undergone any change. All that has happened is that Entry II was taken out from List 11 and amalgamated with Entry 25 of List Ill. However, even the new Entry 25 of List III is also subject to the provisions, among others, of Entry 66 of List 1. It cannot, therefore, be doubted nor is it contended before us, that the legislation with regard to coordination and determination of standards in institutions for higher education or research and scientific and technical institutions has always been the preserve of the Parliament. what was contended before us on behalf of the State was that Entry 66 enables the Parliament to lay down the minimum standards but does not deprive the State Legislature from laying down standards above, the said minimum standards. We will deal with this argument at its proper place.

13. We may now refer to the provisions of Articles 246, 248 and 254 in Part II of Chapter 1 which relates to the distribution of the legislative powers between the Parliament and the State Legislatures. It is not necessary to enter into a detailed discussion of these Articles since they have been the subject matter of various decisions of this Court. We may only summarise the effect of these Articles as has emerged through the judicial decisions, so far as it is relevant for our present discussion. While Article 246 states the obvious, viz. that Parliament has exclusive power to make law., with

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respect to any of the matters enumerated in List I and has also the power to make laws with respect to any of the matters enumerated in List 111, the State Legislature has exclusive power to make laws with respect to any of the matters enumerated in List II subject, of course, to the Parliament's power to make laws on matters enumerated in List I and List III. Parliament has also power to make laws on matters enumerated in List II for any part of the territory of India not included in a State. Article 248 vests the Parliament with the exclusive power to make any law not enumerated in the Concurrent List or the State List including the power of making any law imposing a tax not mentioned in those Lists. This is a residuary power of legislation conferred on the Parliament and is specifically covered by Entry 97 of list 1. In case of repugnancy in the legislations made by the Parliament and The State Legislatures which arises in the case of Legislations on a subject in List "ill, the law made by the Parliament whether passed before or after the law passed by the State Legislature shall prevail and to that extent, the law made by the Legislature of a State will be void. Where, however, the law made by the Legislature of a State is repugnant to the provisions of an carrier law made by Parliament or an existing law with respect to that matter, the law made by the Legislature of the State shall, if it has received the assent of the President, prevail in that State. However, this does not prevent the Parliament from enacting at any time any

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law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State. The repugnancy may also arise between a pre- Constitutional law made by the then Provincial Legislature which continues to be in force by virtue of Article 372 and the post-Constitutional law of Parliament in which case, the law made by the Provincial Legislature shall stand impliedly repealed to the extent of repugnancy to the law made by the Parliament.

14.According to some jurists, the repugnancy may also arise between a pre- Constitutional law made by the then Provincial Legislature which continues to be in force by virtue of Article 372 and the post Constitutional law of the Parliament in which case by virtue of the first part of Article 254 [1], the law made by the Parliament shall prevail, notwithstanding that the Provincial Legislature was competent to make the law prior to the commencement of the Constitution. This is the consequence of the relevant provision of Article 254 [1] which reads as follows:

"254 [1] Inconsistency between laws made by Parliament and the laws made by the Legislatures of States. - [1] If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact... the law made by Parliament, whether passed

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before or after the law made by the Legislature of such State... shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void."

44.What emerges from the above discussion is as follows:

[i] The expression "coordination" used in Entry 66 of the Union List of the Seventh Schedule to the Constitution does not merely mean evaluation. It means harmonisation with a view to forge a uniform pattern for a concerted action according to a certain design, scheme or plan of development. It, therefore, includes action not only for removal of disparities in standards but also for preventing the occurrence of such disparities. It would, therefore, also include power to do all things which are necessary to prevent what would make "coordination" either impossible or difficult. This power is absolute and unconditional and in the absence of any valid compelling reasons, it must be given its full effect according to its plain and express intention.

[ii] To the extent that the State legislation is in conflict with the Central legislation though the former is purported to have been made under Entry 25 of the Concurrent List but in effect encroaches upon legislation including subordinate legislation made by the Centre under Entry 25 of the Concurrent List or to give effect to Entry 66 of the Union List, it would be void and inoperative.

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[iii] If there is a conflict between the two legislations, unless the State legislation is saved by the provisions of the main part of clause [2] of Article 254, the State legislation being repugnant to the Central legislation, the same would be inoperative.

[iv] Whether the State law encroaches upon Entry 66 of the Union List or is repugnant to the law made by the Centre under Entry 25 of the Concurrent List, will have to be determined by the examination of the two laws and will depend upon the facts of each case.

[v] When there are more applicants than the available situations/seats, the State authority is not prevented from laying down higher standards or qualifications than those laid down by the Centre or the Central authority to short- list the applicants. When the State authority does so, it does not encroach upon Entry 66 of the Union List or make a law which is repugnant to the Central law.

[vi] However, when the situations/seats are available and the State authorities deny an applicant the same on the ground that the applicant is not qualified according to its standards or qualifications, as the case may be, although the applicant satisfies the standards or qualifications laid down by the Central law, they act unconstitutionally. So also when the

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State authorities derecognise or disaffiliate an institution for not satisfying the standards or requirement laid down by them, although it satisfied the norms and requirements laid down by the central authority, the State authorities act illegally."

26. In view of above legal position, the

contention raised on behalf of the

respondents that the impugned notification

would be having force of statutory rule under

Article 309 of the Constitution of India is

not tenable as the provisions of the AICTE

Act, 1987 and the guidelines framed

thereunder would have to be followed and any

inconsistency between the provisions of the

Act, 1987 and the impugned resolution would

be void as held by the Apex Court.

27. In view of above, the impugned