Gujarat High Court
Changala Nareshkumar Laxminarayan vs State Of Gujarat on 29 November, 2023
Author: N.V.Anjaria
Bench: N.V.Anjaria
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 966 of 2016
In R/SPECIAL CIVIL APPLICATION NO. 1780 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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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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CHANGALA NARESHKUMAR LAXMINARAYAN
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance:
DEEPAK N KHANCHANDANI(7781) for the Appellant(s) No. 1
MS SHRUTI DHRUVE, AGP for the Respondent(s) No. 1,2,3
MR BY MANKAD(440) for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 29/11/2023
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
Heard learned advocate Mr.Deepak Khanchandani for the
appellant, learned Assistant Government Pleader Ms.Shruti
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Dhruve for respondent Nos.1 to 3 and learned advocate
Mr.B.Y.Mankad for respondent No.4.
2. The appellant is the original petitioner who has sought to
call in question, judgment and order dated 20.7.2016 of learned
single Judge, whereby the Special Civil Application filed by the
appellant petitioner came to be dismissed.
2.1 The relief which was prayed by the petitioner in his
petition was to set aside order dated 22.3.2004 passed by
respondent No.4 - the Administrative Officer, Nagar Prathmik
Shiksan Samiti, Anjar, Kachchh, as well as order dated
30.7.2005, passed by respondent No.3- the District Education
Officer, Bhuj, Kachchh, whereby the services of the petitioner as
Vidya Sahayak came to be terminated. It was further prayed to
direct the respondents to continue the petitioner in service
treating him eligible to the post. The next prayer was for
granting reinstatement with consequential benefits.
2.2 The ground of termination of the services of the petitioner
was that the petitioner possessed. PTC and B.Ed qualification,
whereas the qualification prescribed in the Rules and in the
advertisement was SSC pass with qualification of C.P.Ed.
3. It was the case of the petitioner that he having held the
educational qualifications of SSC, B.Com and B.P.Ed (Bachelor
of Physical Education), applied for the post of Vidya Sahayak,
the recruitment to which was undertaken pursuant to the
advertisement dated 27.6.1998. It was stated that the posts of
Physical Education Teacher- Vidya Sahayak were required to be
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reserved as 5% of the total vacancy requirement. The petitioner
came to be appointed on the post from 7.11.1998. His services
came to be terminated, on the ground of not possessing the
qualification required and mentioned in the Rules and in the
advertisement. In Special Civil Application filed by the petitioner
at that time to challenge the termination order, after initially
granting interim relief, this court disposed of the petition inter
alia by giving liberty to terminate the services of the petitioner
after affording opportunity of hearing, if the respondent
authorities are of the opinion that the petitioner is not qualified
for imparting education to the Primary School students.
3.1 After reinstating the petitioner on 10.6.2002, the
respondent No.4 issued show-cause notice dated 29.11.2003, to
which the petitioner gave reply on 9.12.2003. Thereafter, the
services of the petitioner was again terminated by the
respondent authorities. The petitioner then preferred Appeal
under Section 24(2) of the Bombay Primary Education Act. On
30.7.2005, the order of termination came to be finally confirmed
by the District Education Officer, dismissing the Appeal.
3.2 Learned single Judge in his detailed reasoned judgment
inter alia considered the submission on behalf of respondent
No.4- Administrative Officer. It was submitted before the court,
as recorded in para 20 of the order of learned single Judge, that
in order dated 29.11.2003 whereby the earlier petition was
disposed of, this court succinctly explained the distinction
between the course of C.P.Ed, B.P.Ed and D.P.Ed. An emphasis
was laid that the syllabus of C.P.Ed was of two years whereas
that of D.P.Ed was only of one year.
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4. Learned advocate for the appellant petitioner submitted,
questioning the justification of the order of learned single Judge,
that on the contrary the petitioner held higher qualification of
Bachelor of Physical Education (B.P.Ed) than one prescribed as
eligibility to the post. It was submitted that the higher
qualification ought to have been accepted by the respondent
authorities. It was submitted that even otherwise, subsequently,
the Education Department has recognized the B.P.Ed for the
recruitment of qualification of Vidya Sahayak by issuing circular
dated 5.6.2004 and therefore the contention that higher
qualification should be accepted, received post facto acceptance.
4.1 On the other hand, in addition to highlighting the greater
duration of the C.P.Ed course compared to B.P.Ed, it was
submitted by learned advocate for the respondent No.4 that a
Teacher having qualification of C.P.Ed can teach the subjects of
Gujarat, Mathematics and Science in addition to Physical
Education to the students of primary schools, whereas a Teacher
possessing B.P.Ed or D.P.Ed can teach the subject of Physical
Education to the students of secondary and higher secondary
schools.
4.2 In light of the facts outlined and contours of contentions
briefly noticed as above, examining the challenge to the
judgment and order of learned single Judge, having noticed the
previous petition and the order therein, learned single Judge
considered the relevant facts and proceeded to observe and held
as under in para 33,
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"I am of the view that as the writ applicants w
ere not possessing the requisite
qualification of the C.P.Ed., they could
not have been
appointed on the posts in question, and more p
articularly, when the
advertisement in this regard was very clear. In
fact the applicationsshould have been
rejected at the
threshold. It is very sad to note that the
two writ
applicants although worked for a period of alm
ost five years, yet had to go home. The
learned counsel appearing for the writ
applicants submitted
that even considering the equity,
they should be
reinstated in service with the continuity. It is
submitted
by the learnedcounsel that the back
wages may not be
granted.It must never beforgotten that
one of the
maxims of equity is that "Equity follows
thelaw". If the
law is clear, no notions of equity can substitute
the same"
4.3 It was observed that the doctrine of legitimate expectation
would also not save the situation and held that such contention
on part of the petitioner was not accepted. The relief was
accordingly, declined.
5. The post involved is of Vidya Sahayak. The qualifications
needed for eligibility to the post as per Regulation 20(8) of the
Gujarat Secondary Education Regulations, 1974 for the post of
Physical Education Teacher were that the candidate inter alia
should possessess SSC certificate and passing of one year course
of C.P.Ed. The eligibility mentioned in the Rules was prescribed
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in the advertisement. As noted above, the petitioner possessed
Bachelor of Physical Education which was a higher qualification
than prescribed.
5.1. The issue arising has been considered by this court in
Bharatkumar Babulal Parmar Vs. State of Gujarat which
was Letters Patent Appeal No.705 of 2023, decided as per
judgment dated 10.11.2023. In that case, the post of Gram Sevak
was involved. The eligibility prescribed was either two years or
three years Diploma or Bachelor in Rural Studies. The petitioner
therein offered qualification of B.S.C (Agriculture) contending
that B.S.C (Agriculture) was higher qualification, it would
presuppose to be inclusive of lower qualification.
5.1.1 In the width and breath of controversy, the following
questions in Bharatkumar Babulal Parmar (supra), was
considered,
"Whether in the facts of the case, it was open
for the employer to deviate from the eligibility
prescribed in the Rules and accordingly in the
advertisement, by treating the candidates
possessing the qualification other than the
prescribed, which was higher qualification, on
the projected ground that the higher
qualification held by the candidate could be
presupposed taken as they having inclusively
possessed the lower qualification, especially
when the Rules do not so contemplate."
5.1.2 The position of law in above regard discussed and
highlighted in Bharatkumar Babulal Parmar (supra), would
apply to the present case as well. The paragraphs herein after
are extracted from the said judgment to be relevant to be
noticed.
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5.2 In Jyoti K.K. Vs. Kerala Public Service Commision
[(2010) 15 SCC 596], the issue before the Supreme Court was
identical as to whether the candidates possessing qualification
higher than the prescribed could be considered eligible for the
post, which in that case was of Sub-Engineers (Electrical) in
Kerala State Electricity Board for which the Kerala Public
Service Commission invited applications. The Supreme Court
held that in order that higher qualification could be treated to be
valid, although not prescribed as eligibility, they must indicate
or presuppose the acquisition of lower qualification.
5.2.1 In Jyoti K.K. (supra), it was Rule 10 (a)(ii) of the
Kerala State and Subordinate Services Rules, 1956, under
consideration. The text of the said Rule was under,
"10 (a)(ii) Notwithstanding anything contained
in these rules or in the special rules, the
qualifications recognised by executive orders
or standing orders of government as
equivalent to a qualification specified for a
post in the special rules and such of those
higher qualifications which presuppose the
acquisition of the lower qualification
prescribed for the post shall also be sufficient
for the post."
5.2.2 It was asserted that the higher qualification must
indicate or presuppose the acquisition of higher qualification
prescribed for that post. It was stated that the principle would
operate in the context of the very Rule stating thus,
"...under the relevant rules, the same cannot
be in any manner whittled down and a
different qualification cannot be adopted. The
High Court is also justified in stating that the
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higher qualification must clearly indicate or
presuppose the acquisition of the lower
qualification prescribed for that post in order
to attract that part of the rule to the effect that
such of those higher qualifications which
presuppose the acquisition of the lower
qualifications prescribed for the post shall also
be sufficient for the post. If a person has
acquired higher qualifications in the same
faculty, such qualification can certainly be
stated to presuppose the acquisition of the
lower qualifications prescribed for the post. In
this case it may not be necessary to seek far.
(para 7)
5.2.3 It was further observed,
Under the relevant rules, for the post of
assistant engineer, degree in electrical
engineering of Kerala University or other
equivalent qualification recognised or
equivalent thereto has been prescribed. For a
higher post when a direct recruitment has to
be held, the qualification that has to be
obtained, obviously gives an indication that
such qualification is definitely higher
qualification than what is prescribed for the
lower post, namely, the post of sub-engineer.
(para 8)
5.3 In State of Punjab v. Anita & Ors. [(2015) 2 SCC
170], the decision of the Supreme Court in Jyoti K.K. (supra)
was considered and explained for its purport and application. In
Anita (supra), the private respondents were selected against
the advertised post of JBT/ETT teachers. The advertisement
issued for the purpose of recruitment did not reflect the
prescribed qualification which were indicated in the Appendix to
Rule 6 of Punjab Privately Managed Recognised Schools
Employees (Security of Service) Rules, 1981. Thus, the said
respondents were selected not possessing the qualifications as
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stipulated in the statutory rules. It was stated that it was
imperative for the candidates to possess statutory qualification
prescribed for appointment to the posts in question and that the
possession of higher qualification as against the prescribed
qualification were inconsequential.
5.3.1 At this stage, two other decisions of the Supreme
Court in P.M. Latha and another vs. State of Kerala and
others[(2003) 3 SCC 541] as also in Yogesh Kumar and
others vs. Government of NCT of Delhi and others[(2003)
3 SCC 548], may also be noticed with relevance. They were
referred to in Anita (supra).
5.3.2 In P.M. Latha (supra), the principle was stated that
the qualification other than prescribed in the advertisement
cannot be considered on the ground of possessing higher
qualification than prescribed. The issue was recruitment to the
post of Lower Primary/Upper Primary Teacher in the
Government school. The qualification prescribed for the post in
the advertisement, which was published in the gazette was
passing of Trained Teachers Certificate (TTC). Instead of
selecting the holders of TTC, the candidates holding B.Ed.
degree came to be selected on the basis that B.Ed. was higher
qualification than TTC. It was held by the Supreme Court that in
terms of the advertisement, B.Ed. holders were not eligible for
selection. It was held that B.Ed. cannot be treated as higher
qualification than TTC. The principle was reiterated.
5.3.3 The Supreme Court observed thus,
"We find absolutely no force in the argument
advanced by the respondents that B.Ed.
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qualification is a higher qualification than TTC
and therefore, the B.Ed. candidates should be
held to be eligible to compete for the post. On
behalf of appellants, it is pointed out before us
that Trained Teachers Certificate is given to
teachers specially trained to teach small
children in primary classes whereas for B.Ed.
degree, the training imparted is to teach
students of classes above primary. B.Ed.
degree holders, therefore, cannot necessarily
be held to be holding qualification suitable for
appointment as teachers in primary schools.
Whether for a particular post, the source of
recruitment should be from the candidates
with TTC qualification or B.Ed. qualification, is
a matter of recruitment policy."
(para 10)
5.3.4 The Apex Court proceeded further to state,
"We find sufficient logic and justification in
the State prescribing qualification for post of
primary teachers as only TTC and not B.Ed.
Whether B.Ed. qualification can also be
prescribed for primary teachers is a question
to be considered by the authorities concerned
but we cannot consider B.Ed. candidates, for
the present vacancies advertised, as eligible."
(para 10)
5.3.5 In Yogesh Kumar (supra), the Apex Court stated
that merely because the primary teachers can also earn
promotion to the post of teachers to teach higher classes and for
which B.Ed. is the prescribed qualification, it cannot be held that
only because it is higher qualification, can substitute the
prescribed qualifications.
5.3.5 The contention raised before the Supreme Court in Anita
(supra) with reference to the observations in paragraph 7,
already quoted in para 5.2.3 above, was answered and explained
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taking reference to Rule 10(a)(ii), which was in the context of
Jyoti K.K. (supra) to observe as under,
"A perusal of the rule clearly reveals, that the
possession of higher qualification would
presuppose the acquisition of the lower
qualification prescribed for the posts. Insofar
as the present controversy is concerned,
there is no similar statutory provision
authorizing the appointment of persons
with higher qualifications.
(para 15)
(Emphasis supplied)
5.3.6 Thus, it was indicated unequivocally that it was the
statutory provision in Rule 10(a)(ii), which made the difference.
Since the private respondents possessed higher
qualifications than the qualification of JBT/ETT, which could be
treated as fulfilling qualification, was negatived.
5.4 In Zahoor Ahmad Rather vs. Sheikh Imtiaz
Ahmad[(2019) 2 SCC 404], the Supreme Court streamlined
the proposition of law having considered the decision in Jyoti
K.K. (supra), P.M. Latha (supra), Yogesh Kumar (supra)
and Anita (supra).
5.4.1 In Zahoor Ahmad (supra), was the post of Technician-
III, the qualification prescribed was Matriculation with ITI in
Electrical Trade. The appellants did not possess ITI
certification, but they were Diploma holders in Electrical
Engineering/Electronics and Communications. The Supreme
Court held that the prescription of qualification of post was
matter of policy and the State as employer is entitled to
prescribe qualifications as condition of eligibility after taking
into consideration the nature of job, aptitude required for
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efficient discharge of duties, functionality of a qualification, etc.
5.4.2 Referring to the decision in Jyoti K.K. (supra)
extensively and analytically, the Supreme Court in Zahoor
Ahmad (supra), asserted that what was laid down in Jyoti K.K.
(supra) based on Rule 10(a)(ii). Referring to Anita (supra), it
was laid down by reading the decision of Jyoti K.K. (supra) and
Anita (supra), that in absence of the stipulation such as found
Rule 10(a)(ii) such a hypothesis could not be deduced.
5.4.3 Following observations in this regard deserves to be
noticed,
"The decision in Jyoti KK has been considered
in a judgment of two learned Judges in State of
Punjab v Anita9. In that case, applications
were invited for JBT/ETT qualified teachers.
Under the rules, the prescribed qualification
for a JBT teacher included a Matric with a two
years' course in JBT training and knowledge of
Punjabi and Hindi of the Matriculation
standard or its equivalent. This Court held that
none of the respondents held the prescribed
qualification and an MA, MSc or MCom could
not be treated as a 'higher qualification'.
Adverting to the decision in Jyoti KK, this
Court noted that Rule 10(a)(ii) in that case
clearly stipulated that the possession of a
higher qualification can pre-suppose the
acquisition of a lower qualification prescribed
for the post. In the absence of such a
stipulation, it was held that such a hypothesis
could not be deduced:(Anita case SCC p.177,
para 15"
(Para 25)
5.4.4 It was not possible to conclude that the higher
qualification would presuppose the inclusion or acquisition of
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the lower qualification, unless such presupposition finds support
from the Rules.
5.4.5 After analysis of the aforesaid all the judgments, the law
was asserted by the Supreme Court in Zahoor Ahmad (supra)
that the prescription of qualification for the post is in the realm
of recruitment policy and it is the function of the employer to
prescribe the qualification as condition of eligibility,
"We are in respectful agreement with the
interpretation which has been placed on the
judgment in Jyoti KK in the subsequent
decision in Anita (supra). The decision in Jyoti
KK turned on the provisions of Rule 10(a)(ii).
Absent such a rule, it would not be permissible
to draw an inference that a higher
qualification necessarily pre-supposes the
acquisition of another, albeit lower,
qualification. The prescription of qualifications
for a post is a matter of recruitment policy.
The state as the employer is entitled to
prescribe the qualifications as a condition of
eligibility. It is no part of the role or function
of judicial review to expand upon the ambit of
the prescribed qualifications."
(para 26)
5.4.6 It was further added and observed by the Supreme
Court,
"Similarly, equivalence of a qualification is not
a matter which can be determined in exercise
of the power of judicial review. Whether a
particular qualification should or should not be
regarded as equivalent is a matter for the
state, as the recruiting authority, to
determine. The decision in Jyoti KK turned on
a specific statutory rule under which the
holding of a higher qualification could pre-
suppose the acquisition of a lower
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qualification. The absence of such a rule in the
present case makes a crucial difference to the
ultimate outcome. In this view of the matter,
the Division Bench of the High Court was
justified in reversing the judgment of the
learned Single Judge and in coming to the
conclusion that the appellants did not meet the
prescribed qualifications. We find no error in
the decision of the Division Bench."
(para 26)
5.4.7 The Supreme Court cautioned in Zahoor Ahmad
(supra),
"All these are essentially matters of policy.
Judicial review must tread warily. That is why
the decision in Jyoti KK must be understood in
the context of a specific statutory rule under
which the holding of a higher qualification
which presupposes the acquisition of a lower
qualification was considered to be sufficient
for the post. It was in the context of specific
rule that the decision in Jyoti KK turned."
(para 27)
5.5 The jurisprudence says that it is the employer only, who is
the right person who should have leeway and the free-way to
prescribe the qualification was that while prescribing the
qualification for a post, the State or any employer would
legitimately bear in mind several factors such as nature of job,
the requirement for discharging of duties, the functionality of
the qualification, content of the course of the studies, etc. The
requirements of the post known to the employer and the
qualification for the post would be prescribed accordingly.
5.6 At this stage, Division Bench decision of this Court in
Leelaben Chaudhary vs. State of Gujarat, which was Letters
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Patent Appeal No. 349 of 2018 decided on 11.05.2018 and
pressed into service by the respondents may be dealt with. The
post was same carrying same qualification. In that case
however, the question was whether the qualification of Bachelor
of Rural Studies could be equated with graduation in Rural
Studies (Agriculture) or Rural Studies (Animal Husbandary) etc.
Essentially, it was the question of applying equivalence of the
qualification. It is not the case here. The reliance on this
judgment therefore was wholly misconceived.
6. On behalf of the respondents, the decision of the Supreme
Court in Puneet Sharma & Ors. vs. Himachal Pradesh State
Electricity Board [(2021) SCC Online SC 291] was sought to
be harped to contend that the law interpreted therein referring
to the decision in Jyoti K.K. (supra) and Zahoor Ahmad
(supra) to negate the case of the appellants-petitioners. In
Puneet Sharma (supra), the contention was that the
expression "minimum" was used in the notification providing
essential qualifications without any bar in that regard found in
the Rules, therefore, it did not prevent the appointment of
degree holders to the post of Junior Engineer (Electrical)
although the minimum qualification of Matriculation with
Diploma in Electricals/Electronics was the prescription in the
post.
6.1 It was contended therefore that the Matriculation with
Diploma was only minimum requirement and that in the
recruitment process undertaken by the Himachal Pradesh State
Electricity Board (HPSEB), the employer was entitled to choose
a person with higher qualification. Thus, the aspect is to be
noticed is that the word "minimum" is used in the Rule to give
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room to the employer.
6.2 The reasoning adopted by the Court in Puneet Sharma
(supra) was thus,
"In the present case, what is evident from the
rules is that direct recruitment to the post of
JEs in HPSEB is to the extent of 72%.
Undoubtedly, eligibility is amongst those who
passed in matriculation or 10+2 or its
equivalent qualification. However, this Court is
of the opinion that the diploma holders'
contention that the minimum qualification is
matriculation and that the technical
qualification is diploma is incorrect. The
minimum qualification for the post cannot be
deemed to be only matriculation but rather
that only such of those matriculates, or 10+2
pass students, who are diploma holders would
be eligible. The term "with" in this category
has to be read as conjunctive."
(Para 30)
6.3 The set of facts and aspects in Puneet Sharma (supra)
were conspicuously different. It was a clarificatory amendment,
which was brought into force, which was applied with further
reasoning based on the facts about filling-up of the posts. The
Supreme Court in Puneet Sharma (supra) summed up thus,
which again go to show that the decision in Puneet Sharma
(supra) was based on facts operated in that case,
"The considerations which weighed with this
court in the previous decisions i.e. P.M. Latha,
Yogesh Kumar, Anita (Supra) were quite
different from the facts of this case. This
court's conclusions that the prescription of a
specific qualification, excluding what is
generally regarded as a higher qualification
can apply to certain categories of posts. Thus,
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in Latha and Yogesh Kumar as well as Anita
(supra) those possessing degrees or post-
graduation or B.Ed. degrees, were not
considered eligible for the post of primary or
junior teacher. In a similar manner, for
"Technician-III" or 17(2019) 8 SCC 416 18 SLP
(C) 10533-37 of 2020 lower post, the
equivalent qualification for the post of Junior
Engineer i.e. diploma holders were deemed to
have been excluded, in Zahoor Ahmed Rather
(supra). This court is cognizant of the fact that
in Anita as well as Zahoor (supra) the
stipulation in Jyoti (supra) which enabled
consideration of candidates with higher
qualifications was deemed to be a
distinguishing ground. No such stipulation
exists in the HPSEB Rules. Yet, of material
significance is the fact that the higher post of
Assistant Engineer (next in hierarchy to Junior
Engineer) has nearly 2/3rds (64%) promotional
quota. Amongst these individuals, those who
held degrees before appointment as a Junior
Engineers are entitled for consideration in a
separate and distinct sub-quota, provided they
function as a Junior Engineer continuously for
a prescribed period. This salient aspect cannot
be overlooked; it only shows the intent of the
rule makers not to exclude degree holders
from consideration for the lower post of Junior
Engineers."
(Para 38)
7. In the present case, the Rule is clear to mention the
qualification precisely. The advertisement was issued
accordingly and the eligibility was mentioned confined to such
qualification. It was not possible to be construed for its any
clarity to accommodate the candidates with higher qualification
to be eligible. Rule has to be applied as it stood. Giving
flexibility to accommodate the candidates with higher
qualification in absence of anything contained in the rule in that
regard would indeed be impermissible in law.
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8. The decision of learned Single Judge whereby the petitions
as were dismissed was based on the another decision in
Ketankumar Shanabhai Kotwal (supra), as well as the
impugned judgment of learned Single Judge. Ketankumar
Shanabhai Kotwal (supra) as well as the impugned judgment
of learned Single Judge could be said to have misapplied the law
in treating the candidates with higher qualifications-respondents
no.3 to 11 to be eligible although their qualification did not
match the only qualification prescribed in the advertisement and
in the Rule.
9. The contention about the subsequent Circular dated
5.6.2004 is of no consequence, since it could not be made
relatable to the time when the recruitment process was
undertaken and the advertisement was issued prescribing in the
eligibility, which was specific, without any relaxation permissible
for higher qualification. The petitioner was not eligible and could
not be treated as eligible.
10. For the reasons recorded by learned single Judge and the
further discussion reasons supplied herein above by this court,
no relief could be granted to the petitioner. The judgment and
order of learned single Judge is upheld. The challenge fails.
11. The Letters Patent Appeal is dismissed.
(N.V.ANJARIA, J)
(NISHA M. THAKORE,J)
Manshi
