Gujarat High Court

Bhaveshbhai Karshanbhai Khasiya vs State Of Gujarat on 16 March, 2023

Bench: Sandeep N. Bhatt

     C/SCA/4723/2023                                ORDER DATED: 16/03/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 4723 of 2023

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                       BHAVESHBHAI KARSHANBHAI KHASIYA
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR D C SEJPAL(1322) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MR KRUTIK PARIKH, AGP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                               Date : 16/03/2023

                                 ORAL ORDER

1. Rule returnable forthwith. Mr.Krutik Parikh,

learned Assistant Government Pleader, waives service of

rule on behalf of the respondent - State.

2. The prayer of the petitioner is to consequentially

fix 31.05.2017 as the deemed date of first promotion of

the petitioner to the post of Head Constable and then

grant second promotion to the post of Assistant Sub

Inspector from 21.12.2020 along with the difference of

salary and other benefits from the said respective dates.

2.1 The case of the petitioner is that he was appointed

C/SCA/4723/2023 ORDER DATED: 16/03/2023

as an Unarmed Police Constable on 16.02.2009. On

successful completion of five years of service in fixed pay,

the petitioner was appointed on a regular payscale with

effect from 8.3.2014. The petitioner had cleared her

course in Computer Concepts (CCC) examinations in

January, 2010 from Dr.Babasaheb Ambedkar Open

University with first class with distinction.

2.2 Orders for general promotions of Police Constables to

Police Head Constables were issued by the respondent

No.2, Superintendent of Police, Gir-Somnath. Since the

petitioner had passed the CCC Examination from

Dr.Babasaheb Ambedkar Open University, which was not

considered as valid the petitioner was not granted promotions. The petitioner applied for undertaking the

examinations from Saurashtra University and cleared the

same. Promotions were granted to the petitioner to the

post of Unarmed Head Constable applicable from the

date on which the petitioner passed the examination

through the Saurashtra University.

3. Mr.Sejpal, learned counsel for the petitioner, would

submit that the Government Resolutions dated 02.01.2009

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and 22.06.2010 clearly recognized Dr.Babasaheb

Ambedkar Open University as a valid body to conduct

the CCC Examinations.

3.1 Mr.Sejpal, learned counsel, would rely on a decision

rendered by this Court on 31.01.2017 in Special Civil

Application No. 18543 of 2016. The decision of the Co-

ordinate Bench of this Court was confirmed by the

Division Bench by its oral order dated 08.03.2019.

4. Considering the resolutions and the fact that

Dr.Babasaheb Ambedkar Open University was a

recognized institution through which the CCC

examinations could be conducted, the Division Bench of the Court held as under:

"6 Having given our anxious consideration to the submissions made by the learned Assistant Government Pleader, it will be in the fitness of things to reproduce the relevant undisputed findings of the learned Single Judge which would lead us to render a decision and holding, that in our opinion the learned Single Judge committed no error. The relevant paragraphs are reproduced herein below:

C/SCA/4723/2023 ORDER DATED: 16/03/2023

"8.1 It is an uncontroverted fact that the Government Resolution dated September 20, 2006, issued by the General Administration Department is qua the CCC and CCC+ examinations, wherein as rightly pointed out by the learned Assistant Government Pleader, the training prescribed for CCC examination with which we are concerned, is of 45 hours; whereas the examination of 100 marks i.e. 50 marks each for practical and theory examinations. Both, the Gujarat Council for Vocational Training and ITI Centres administered by the Government of Gujarat, were to conduct the examination. For the purpose of training also, the Gujarat Council for Vocational Training and SPIPA were notified.

8.2 However, subsequently the General Administration Department on realising the magnitude of the task passed the Government Resolution on January 02, 2009 and it also included Dr.Babasaheb Ambedkar Open University, for the purpose of training as well as examination, both. Total 181 centres of Dr.Babasaheb Ambedkar Open University for training had been recognised, but for examination it was not recognised by the respondentState, which had been permitted under the supervision and guidance of any officer of SPIPA, ITI and Gujarat Technical Examination Board.

8.3 Once again, under the heading of Recognition of Centres of Dr.Babasaheb Ambedkar Open University, a Government

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Resolution came to be issued, wherein some of the old centres have been derecognised and new centres have been introduced. Accordingly, schedule 'C' has been considered to be the schedule with centres which are recognised for the purpose of examination. Thus, for the purpose of examination, Dr.Babasaheb Ambedkar Open University with those specified training and examination centres continued to have recognition.

8.4 On adverting to the facts of the present case in the aforesaid background, it is not the case of the respondent authority that any of the petitioners has either taken training at the centres which are not recognised or appeared in the examination which have not been prescribed in schedule 'C' in the last Government Resolution issued on June 22, 2010. It is also necessary at this stage to particularly make a mention of the fact that there are no two types of examinations conducted for CCC by the Dr.Babasaheb Ambedkar Open University, but only one type of examination, which is of 400 marks. Therefore, those who took training and appeared in the examination have no choice, but to appear in the examination conducted by the Dr.Babasaheb Ambedkar Open University. Corollary to this is a fact which deserves to be mentioned emphatically that the aspect of the said University conducting examination of 400 marks has come to the knowledge of the respondent State since the year 2010. This was conveyed to the Court

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by the learned Assistant Government Pleader on instructions from the officer present in the Court, on a specific query raised by the Court. Yet the said centres have either been removed till date by derecognising them for the purpose of training or examination, nor has there been any communication to the employees not to appear from such centres or to take such examination of 400 marks. When that is indisputable fact, there is no reason to deny the petitioners the benefits of higher payscale who have passed the CCC examination from the said University, which otherwise has recognised by both the Government Resolutions issued by the State.

8.5 One of the issues raised by the petitioners is with respect to the employees queuing up for want of availability of seats to appear in the CCC examination which has been made compulsory by the State Government for getting all the benefits in the Government service. For that very reason in the year 2009, the respondent State made it open for the Open Universities to be included for both, training and examination purpose.

8.6 Further, it is also not the case of the respondent State that the training and the examination conducted by the said University is not as per the syllabus prescribed. There were instances where prior to the year 2009, when this University was recognised for both these purposes, their training course

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was not recognised by the State authority, however, on realising that the same has fallen in the line of the prescription given by the respondent State, the recognition has come. In that view of the matter and with there being no choice with the candidates who appeared through this recognised centre, it is absolutely unjust and arbitrary action on the part of the respondent State to deny them the benefit after not having whispered once since the year 2010 that such course from the concerned University is not recognised."

7 Perusal of the paragraphs reproduced hereinabove would suggest that, though by various resolutions subsequent to the resolution of 30.09.2006 sub centres of the Dr.Babasaheb Ambedkar Open University were deleted as recognized centres for the examination, however, it was undisputed that at some stage examinations held by the University i.e. Dr.Babasaheb Ambedkar Open University were recognized centres for the purposes of conducting the CCC examinations. The submission of the learned Assistant Government Pleader that since the examination conducted by Dr.Babasaheb Ambedkar Open University for 400 marks was not in consonance with the syllabi of the State Government which conducted examination for awarding such certificates of 100 marks is no ground on which such examination can be held to be invalid or improper for the purposes of extension of the benefits of certificates being granted.

C/SCA/4723/2023 ORDER DATED: 16/03/2023

8. We have considered the syllabus that has been annexed to the petition i.e. of the State Government in the annexures A and B to the appropriate government resolutions and to the syllabi of the course undertaken by the Dr.Babasaheb Ambedkar Open University. Perusal extensively of these subjects which the University imparts for the purposes of granting such certificates cannot be said to be in any manner different for the purposes of extending the benefit of computer proficiency. Merely because the subjects have been worded differently or the words of the syllabi have been named in a different manner, it cannot be said that the subjects that were undertaken for giving computer proficiency by the Dr.Babasaheb Ambedkar Open University were different and not in co-existence with the syllabi prescribed by the State Government.

9. Essentially what was important and what is the spirit behind such computer proficiency is that an employee of the state government is well equipped to manage the computers. Reading of the syllabi of both, the government and that of the Dr.Babasaheb Ambedkar Open University would certainly lead us to believe that it cannot be held that the proficiency course undertaken and the certificate issued pursuant to the training undertaken at the Dr.Babasaheb Ambedkar Open University cannot be accepted by the government, merely on the ground that the Open University awarded a syllabus of

C/SCA/4723/2023 ORDER DATED: 16/03/2023

400 marks whereas the prescribed course was of 100 marks. This ground appears to be not germane for the purposes for which the certificate was issued. 10 Accordingly, we have no reason to find fault with the judgment of the learned Single Judge. The Letters Patent Appeals are accordingly dismissed. Civil Applications (For Stay) also stand disposed of with no

order as to costs."

5. It appears that pending the petition, not only has

the petitioner been superseded in the matter of

promotion to the post of Police Head Constable, but also

to that of Assistant Sub Inspector based on the earlier

promotions granted supersiding the petitioner in the

cadre of Head Constables.

6. Considering the decision of the Division Bench dated

08.03.2019, the respondents are directed to grant deemed

date of promotion with all consequential benefits taking

31.05.2017 as the date on which the petitioner was

entitled to promotion to the post of Head Constable and