Gujarat High Court
Madhvi Devendrabhai Shukla vs State Of Gujarat on 11 February, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
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Reserved On : 04/02/2025
Pronounced On : 11/02/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 182 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 5173 of 2010
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 182 of 2020
With
R/LETTERS PATENT APPEAL NO. 322 of 2020
In
R/SPECIAL CIVIL APPLICATION NO. 14457 of 2010
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020 In R/LETTERS PATENT
APPEAL NO. 322 of 2020
In
R/SPECIAL CIVIL APPLICATION NO. 14457 of 2010
With
R/LETTERS PATENT APPEAL NO. 488 of 2020
In
R/SPECIAL CIVIL APPLICATION NO. 5174 of 2010
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2021 In
R/LETTERS PATENT APPEAL NO. 488 of 2020
In
R/SPECIAL CIVIL APPLICATION NO. 5174 of 2010
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 2 of 2020 In
R/LETTERS PATENT APPEAL NO. 488 of 2020
In
R/SPECIAL CIVIL APPLICATION NO. 5174 of 2010
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020 In R/LETTERS PATENT
APPEAL NO. 488 of 2020
In
R/SPECIAL CIVIL APPLICATION NO. 5174 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
Page 1 of 21
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and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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MADHVI DEVENDRABHAI SHUKLA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR DIPAN DESAI(2481) for the Appellant(s) No. 1 in LPA No. 182 of 2020
with CA No.1 of 2020
MR. DWIJEN JOSHI, for the Appellant(s) No. 1 in LPA No. 322 of 2020 with
CA 1 of 2020
MR. K.B.PUJARA, for the Appellant(s) No. 1 in LPA No. 488 of 2020 with CA
Nos. 1 of 2020, 1 of 2021 and CA No. 2 of 2020.
MS. MEGHA CHITALIA, ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
==========================================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)
1 These appeals arise out of a common judgement
rendered by the learned Single Judge on 26.11.2019, by
which, the petitions filed by the appellants for a prayer
that the promotions from the cadre of Junior Lecturer to
the cadre of Senior Lecturer on the basis of branches of
the cadre be quashed and set aside and directions be
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issued to operate and maintain a common seniority list of
Junior Lecturers irrespective of the branches in which
they were working for the purposes of promotion to the
post of Senior Lecturer. The learned Single Judge by the
judgement, dismissed the petitions holding that the
recruitment rules in question for the purposes of
promotion stipulated that the appointment to the post
was to be made by promotion on the basis of educational
qualifications and experience which included the
qualifications of having worked in the seven branches
that was set out in the rules.
1.1 The learned Single Judge held that minimum
educational qualification as well as experience prescribed
for each of the Junior Lecturers working in their branches
was necessary for being eligible for promotion and the
seniority assigned to the lecturers in their respective
branches should therefore be considered as appropriate.
2 Mr.K.B.Pujara, learned advocate appearing for the
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appellant in Letters Patent Appeal No. 488 of 2020, made
the following submissions:
2.1 That the Recruitment Rules for the post of Lecturers
in the Gujarat Education Services (District Institute of
Education & Training) Recruitment Rules, 1990, provided
for appointment by direct selection. Referring to the
appointment orders and the posting orders of the
appellants, Mr.Pujara, learned Counsel, would submit
that in the appointment and the posting orders, there was
no mention of any branch to which the appellants were to
be appointed or posted, and therefore, the interpretation
by the respondents that the seniority and experience of
working in a branch is the relevant criteria is
misconceived.
2.2 Inviting our attention to the Recruitment Rules,
namely, the Rules for Appointment to the Post of Senior
Lecturer, Mr.Pujara, learned Counsel, would submit that
appointment to the post of Senior Lecturers was either by
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direct selection or by promotion. As per the criteria for
promotion, the person was eligible for such promotion if
the person was having proved merit and efficiency from
amongst the persons who had worked for not less than
seven years in the cadre of Lecturer Class-III. Mr.Pujara,
would therefore submit that there was no criteria for
considering work experience in a particular branch for
the purposes of promotion.
2.3 Inviting our attention to the impugned
communication dated 09.04.2010, Mr.Pujara, learned
counsel, would submit that in the respective branches
that was shown in the impugned communication, namely,
PSTE Branch, W.E Branch, CMDI Branch and IFCI
Branch etc., incumbents much junior to the appellants i.e.
whose dates of initial appointments were either of 1995
i.e. similar to the appellant or post 1995 i.e. of the year
1997-98, were considered for promotion. Mr.Pujara,
learned counsel, would submit that, therefore, there was
no reason why persons junior to the appellant be
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considered for promotion.
2.4 Mr.Pujara, learned Counsel, therefore also invited
our attention to the representations made by the
appellants to support his submission that the appellant
concerned, after being appointed on 05.10.1995 as a
Junior Lecturer, had worked in various branches, and
therefore, the branch-wise seniority orders could not have
been the criteria for assigning seniority and inturn be
considered for promotion. He would submit that,
therefore, there was no question on any branch-wise
seniority. Mr.Pujara, learned Counsel, would submit that,
before the learned Single Judge, the appellant-petitioner
had relied on a decision of the Hon'ble Supreme Court in
the case of K.Kappusamy Vs. State of Tamil Nadu,
reported in 1998 (8) SCC 469, to support his submission
that when there are statutory rules providing for cadre-
wise seniority and which did not have a criteria for
branch-wise seniority, such rules cannot be overridden by
executive orders.
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2.5 Mr.Pujara, learned Counsel, in support of his
submissions relied upon a decision of the Guwahati
High Court annexed to the memo of appeal rendered by
the Guwahati High Court in W.P (C) No. 3572 of 2014
dated 15.12.2014. He would submit that the learned
Single Judge committed an error in holding that since the
rules are different than the one governing the case on
hand, the judgement would not apply. Mr.Pujara, relying
on a decision of the Hon'ble Supreme Court in the case of
Neon Laboratories Limited Vs. Medical
Technologies & Ors., reported in 2016 (2) SCC 672,
would submit that the Hon'ble Supreme Court has held
that every High Court must give due deference to the
enunciation of law made by another High Court even
though it is free to charter a divergent direction.
2.6 Extensively reading the decision of the Guwahati
High Court, Mr.Pujara, learned Counsel, would submit
that though the situation was converse in the writ petition
before the Guwahati High Court, inasmuch as, the
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contention of the petitioners was that the seniority should
be branch-wise, after considering the submissions, the
High Court upheld the State's objection and held that the
Seniority List has to be prepared cadre-wise. He would
submit that the Guwahati High Court held that since
D.I.E.T Service Rules did not provide for branch-wise
seniority, the seniority had to be governed by cadre-wise
seniority. The Guwahati High Court, in fact, held that
branch-wise seniority cannot be the basis of seniority.
The judgement, therefore, was clearly applicable to the
petitioner-appellants.
2.7 Inviting our attention to the National Education
Policy of which an extract was shown to us through the
additional affidavit filed in the appeal, Mr.Pujara, learned
Counsel, by relying on para 2.8 of the Policy, would
submit that as per the Policy, particularly 2.8 thereof, it
was clearly stipulated that though a branch-wise
organizational structure was recommended, the branch-
wise structure was made purely for practical
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convenience. He would submit that since the National
Education Policy is equally applicable pan-India, the
contention of the State that the appointments were made
branch-wise, and therefore, the seniority of the appellants
would be governed accordingly, is misconceived.
2.8 Mr.Pujara, learned Counsel, would invite our
attention to the affidavit-in-rejoinder filed in the appeal to
contend and bring to our notice certain important facts
which are as under:
(a) The appointment of the appellants in the year
1995 did not envisage distribution of posts into
different branches.
(b) That there was no branch-wise sanction of
posts of Lecturers.
(c) The interview call letter dated 05.06.1995 was
only for the post of lecturer and not for any
particular branch.
(d) The appointment was made in the cadre of
lecturer and not in any particular branch.
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(e) The joining report also was in the post and not
in particular branch.
(f) The transfer orders cum relieving orders were
also as lecturer and not as lecturer of any other
branch.
(g) The lecturers were to work in different
branches and not as per choice.
(h) Departmental examination held by the State
Examination Board was common and not branch-
wise.
(I) The promotion from the post of Lecturer to the
post of Senior Lecturer did not provide for branch-
wise departmental examination.
2.9 Mr.Pujara, learned Counsel, would therefore submit
that the criteria or yardsticks would clearly indicate that
for the purposes of considering the case of the appellants
for promotion on the basis of branch-wise seniority and
not a common cadre-wise seniority was misconceived and
the learned Single Judge ought not to have dismissed the
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petitions only on the ground that the appellants had
accepted the final seniority branch-wise in the year 2002,
when in fact, it was only in the year 2017, that the
transfer orders were issued branch-wise.
2.10 On the submission of the respondent that the
appellants ought to have joined the selected candidates
as parties, reliance was placed on para 23 of the decision
of the Hon'ble Supreme Court in the case of Post
Graduate Institute of Medical Education & Research
& Anr Vs. A.P.Wasan & Ors., reported in (2003) 5
SCC 321, to submit that when the challenge is on the
basis of a principle, the affected party need not be joined
as a party respondent. He would, therefore, submit that
the learned Single Judge committed an error in
dismissing the petitions when in fact, the petitioners were
entitled to the reliefs prayed for as their case was
squarely covered by the decision of the Guwahati High
Court on which reliance was placed by the appellants.
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3 Ms.Megha Chitalia, learned Assistant Government
Pleader appearing for the State relied upon the affidavit-
in-reply filed before the learned Single Judge. She, in
substance, would reiterate the submissions made by her
counter part before the learned Single Judge.
4 Perusal of the order of the learned Single Judge
would indicate that it was the stand of the State before
the learned Single Judge that in light of the provisional
list prepared on 07.02.2002, which became final on
04.05.2002, since the appellants did not lodge any
objection, the Seniority List had become final and it was
only after so many years that the appellants had come
forward to challenge the list.
4.1 The stand of the State further was that though the
appointment orders may not have reflected the branch-
wise appointments, what is evident from reading the rules
is that there were seven branches which required
separate nature of duties and qualifications which were
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prescribed in the recruitment rules. Reliance was placed
on the annexure to the recruitment rules of Senior
Lecturers in support of their submission.
5 Having heard the learned advocates appearing for
the respective parties, the controversy that needs to be
appreciated is as to whether the seniority in the cadre of
Junior Lecturers has to be maintained on the basis of
"branch-wise" position. The recruitment rules are on
record, both of "Junior Lecturer" and "Senior Lecturer".
The rule position has to be considered in light of the
submission made by the learned advocate Shri K.B.Pujara
while bringing out certain important facts as set out
above in Clauses A to I. Merely because the
advertisement, nor the sanctioned establishment, nor the
appointment orders suggest a branch-wise classification
as submitted by him, what reading of the rules would
indicate is that for the purposes of promotion to the post
of Senior Lecturer, a person apart from being of proved
merit and efficiency, has to possess work experience of
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not less than seven years in the cadre of Lecturer and
also possess educational qualifications as prescribed in
Clauses 2(b) & 2(c) of Rule 4.
5.1 With the rules, a Schedule has been annexed which
is a part of the rule where different minimum educational
qualifications and experience branch-wise has been set
out. In other words, when reading of rules is done in
entirety, it is evident that for each class, different
minimum educational qualifications are prescribed along
with requisite experience. In other words, for considering
candidates for promotion, their branch and the
commensurate requisite qualification mentioned against
the branch has to be considered for the purposes of
promotion to the post of Senior Lecturer.
5.2 The learned Single Judge, in our opinion, rightly so
has therefore considered this while interpreting the rules.
Paragraphs 9 to 12 and 14 of the decision, read as under:
" 9. At this stage, it would be apposite to
incorporate relevant rules governing the promotion
to the post of Senior Lecturer.
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"2.appointment to the post of Senior
Lecturer in Gujarat Education Service, ClassII shall
be made either
(a) by promotion of a person of proved merit and
efficiency from amongst the persons who
(i)have worked for not less than seven years
in the cadre or Lecturer, ClassIII under
District Institute of Education and Training and
(ii)have passed the prescribed departmental
examination and
(iii)possess the educational qualification as
prescribed in clasues (b) and (c) of rules
(b)XXX XXX XXX
(c)XXX XXX XXX
3.XXX XXX XXX
4.To be eligible for appointment by direct
selection to the post mentioned in rule 2, a
candidate shall
(a)not be more than 40 years of age;
(b)possess educational qualification and
experience as prescribed in Annexure appended
to these rules;
(c)Possess adequate knowledge of Gujarati and
Hindu;"
9.1 The aforenoted rules stipulate that the
appointment to the post of Senior Lecturer in
Gujarat Education Service (ClassII) is to be
made by promotion of person of proved merit
and efficiency from amongst the person, who has
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worked for not less than seven (7) years in the cadre
or Lecturer, ClassIII under the District Institute
of Education and Training (DIET). SubRule
(iii) of Rule 2 mandatesthat the candidate
must possess the educational qualification as
prescribed under Clauses (b) and (c) of Rule 4.
SubRule (b) of Rule 4 mentions that
candidate must possess educational qualification and
experience as prescribed in Annexure appended to
Rule 4. Thus, provision of Rule 2(a)(i) cannot be read
in isolation, but has to read in conjunction with Rule
4(b) and Annexure appended to the rules.
9.2 Annexure appended to Rule 4 stipulates seven
(7) branches i.e.
i) PreService Teacher Education
ii) Inservice Programme and Extension Services
iii) Curriculum and Evaluation
iv) Educational Technology
v) Planning and Management
vi) Work Experience
10. The aforesaid rules are further substituted
by the "Senior Lecturer" in Gujarat Education
Service (ClassII) at DIET (amended) Rules
2008, wherein seven (7) branches are
prescribed over and above aforesaid six (6)
branches and District Resources Unit (DRU)
branch is added. A glance of the aforesaid branches
would reveal that for each class different minimum
educational qualifications are prescribed along
with requisite experience. Such qualifications along
with experience are required to be considered for
the promotion for the post of Senior Lecturer.
Thus, the feeder cadre to the promotional
post of Senior Lecturer prescribe different
educational qualifications and experience.
Hence, the seniority of Junior Lecturers of
different branches having different qualifications
and experience cannot be consolidated in one
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seniority list.
11. The candidates, who are serving in the specified
branches, have to possess requisite
qualification mentioned therein for the purpose of
promotion to the post of Senior Lecturer.
Accordingly in order to see that no anomalous
situation is created, the GSERT, after due
deliberation in the meeting held on
12.11.2001, decided to assign the seniority to
the Junior Lecturers as per the respective branches,
in which they were appointed.
12. Thus, looking to the diverse minimum
educational qualification as well as experience
prescribed for each of the Junior Lecturer
working in their respective branches, no illegality
and infirmity can be said to have been
committed by the GSERT, by assigning the
seniority to the Junior Lecturers as per their
respective branches. In view of the aforesaid
decision held by the governing body, the
seniority list was prepared in the year of
2002, after inviting objection from the
concerned employees. After considering such
objections, all the petitioners were assigned the
seniority and they have accepted the same. Thus,
after accepting the decision of the governing body
determining their seniority as per their branches,
the petitioner cannot take volteface, after
passage of eight(8) years that they are required
to be promoted by considering their seniority
as "cadre-wise" and not "branchwise".
XXX XXX XXX
14. Having regard to the fact that since the
statutory rules more particularly, Annexure
appended to Rule 4 of the Recruitment Rules of 1992
provide for various branches and also different
minimum educational qualification as well as
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experience required for the purpose of promotion to
the post of Senior Lecturer, the GSERT in its
wisdom has precisely held that there should
be separate seniority "branchwise" as further
promotion would create anomalous situation to
all the Junior Lecturers of all branch since they
possess different qualification as well as experience.
Thus, this court does not find that the decision
of the GSERT in conferring seniority and
promotion of the Junior Lecturers is tainted
with any arbitrariness or illegality."
5.3 It is, therefore, clear on reading the rules that the
contention of learned advocate Shri Pujara based on the
parameters as argued, cannot be accepted. Even while
filling the application form pursuant to the advertisement,
they had to specify the branch in which they were
applying. A specimen application form has been annexed
by the State in the reply filed before the learned Single
Judge.
5.4 The other ground that has weighed with the learned
Single Judge is the aspect of delay. Once the final
seniority list was published on 04.05.2002, where the
seniority was shown to have been maintained "branch-
wise", the petitioners did not approach the Court for a
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period of eight years. The submission of the learned
Counsel for the appellant Shri Pujara that it was only for
the first time when the hearing took place before this
Court that the Minutes of the Meeting held on 12.11.2001
and the decision taken by the Sub-Committee dated
17.07.2001 were produced, did the appellants come to
know of the decision, cannot help the appellants to
overcome the aspect of delay. One cannot lose sight of
the fact that once the Seniority List was provisionally
published to which the appellants did not object and
subsequently the same was finalized in the year 2002, the
appellants did not raise any grievance nor challenged the
seniority list. This, therefore, would amount to accepting
the principle of branch-wise seniority by the appellants.
5.5 With regard to the decision of the Guwahati High
Court, we cannot dispute the legal proposition that
enunciation of law by other High Courts has to be
respected. However, in the case on hand, the learned
Single Judge opined that the judgement of the Guwahati
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High Court did not apply to the facts of the case. Before
the Guwahati High Court, the controversy was converse.
The private individuals contended that the seniority was
branch-wise, however, the High Court accepted the stand
of the State which defended the seniority when seniority
principle being cadre seniority and not branch-wise
seniority. Though, as per the National Education Policy,
branch-wise classification could be for practical
convenience, but when the rules are read which are
statutory in nature, the contention of Shri Pujara, learned
counsel, that such principle governing seniority cannot
bind the appellants is misconceived.
5.6 Moreover, before the Guwahati High Court, though
the principle of seniority being "maintained cadre-wise"
was accepted, the judgement is rendered without
discussion of the rules and the relevant clauses thereof
like the one discussed by the learned Single Judge in the
petitions. This is one more reason why if the learned
Single Judge has found the judgement as not applicable,
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we are not convinced to take a view other than the one
taken by the learned Single Judge. We are, therefore, of
the opinion that the learned Single Judge committed no
error in rejecting the petitions.
6 For the aforesaid reasons, all the appeals are
dismissed. Connected civil applications stands disposed
of, accordingly. Interim relief, if any, stands vacated.
(BIREN VAISHNAV, J)
(D. M. DESAI,J)
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