Gujarat High Court
Dahyabhai V Sendhav vs State Of Gujarat on 23 July, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3336 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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Approved for Reporting Yes No
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DAHYABHAI V SENDHAV
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR MANAN MAHETA(6037) for the Petitioner(s) No. 1
MR ABHIJIT RATHOD FOR MR MEHUL H RATHOD(701) for the
Petitioner(s) No. 1
MS POOJA ASHAR, AGP for the Respondent(s) No. 1,2
RULE SERVED BY DS for the Respondent(s) No. 3,4
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 23/07/2025
ORAL JUDGMENT
1. This petition is filed with the following players:
"9(A) Your Lordships may be pleased to issue a writ of
certiorari or any other rate, order or direction in the
nature of search error rate for quashing and setting
aside the communication dated 19.10.2006 with all
consequential effects in favour of the petitioner and
further be pleased to direct the respondent authorities
to grant approval to promote petitioner as an Associate
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lecturer in the respondent institute with effect from
1994-95 with all benefits.
(B) Pending the hearing and final disposal of the
present petition, YOUR LORDSHIPS may be pleased to
direct the respondent authorities to take decision
forthwith on the proposal of the institution and subject
to outcome of the petition, the petitioner be promoted
as Assistant Lecturer.
(C) xxxx"
2. The facts emerging from the memo of the petition
are such that the petitioner was appointed as Craft teacher
in graduate. Basic Training College, Lok Bharti Sanosara in
the year 1978. On 10.6.1994, one Chandraprabhaben Lecturer
has retired and hence the post of lecturer has fallen vacant.
Therefore, as the petitioner was possessing necessary
qualifications for the post of lecturer, the respondent
Graduate Basic Training College allotted teaching work of an
Associate Lecturer in the subject of Gujarati and Social
Studies to the petitioner since 1994 and the petitioner is
discharging duties as Associate Lecturer. Even the State
Examination Board and Bhavnagar University also appointed
the petitioner as paper setter/examiner for the examination of
GBTC. On 30.8.1994, the Director of Higher Education
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granted NOC to the respondent Institute to fill up the vacant
post of Assistant Lecturer from the category of Scheduled
Tribe candidate. The respondent institute issued
advertisements in dailies four times on different dates but
the candidate for from ST category was not found. In April
1997, the respondent Institute submitted a proposal to the
respondent no.1 permitting to convert NOC for general
candidate as Scheduled Tribe candidate was not found.
Simultaneously, a request was also made to grant approval to
fill up the post by promoting the petitioner as the petitioner
was performing the duty as Associate Lecturer since long and
possessing necessary qualification. Though the petitioner made
a representation to the Commissioner of Higher Education,
Gujarat State on 10.10.1997 for promoting him to the post of
Associate Lecturer. No decision was taken on the same.
Therefore, the petitioner filed an application on 17.9.1998
being No.108/98 before the Gujarat Affiliated College Service
Tribunal and prayed for granting promotion to him to the
post of Associate Lecturer and other reliefs. The Learner
Tribunal on 3.11.2004 disposed of the application by directing
the Institute and the Commissioner to consider the claim of
the petitioner before granting NOC. On 5.1.2005, the
Managing Committee of the Institute vide resolution no.5
resolved to forward the proposal of promoting the petitioner
as Associate Lecturer and accordingly, the proposal was
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submitted to the respondent on 17.1.2005 but no decision was
taken at the relevant time in the case of a petitioner. On
19.5.2005, the state government granted permission to the
respondent Institute to fill up the post of Head Clerk and
Senior Head Clerk only by way of through promotion.
Therefore, the Institute submitted a proposal to the
Commissioner of Higher Education and the State Government
on 6.11.2005 requesting to grant permission to promote the
petitioner as Associate Lecturer based on the similar approval
in cases of Head Clerk and Senior Clerk. The said proposal
was opened by the Joint Director of Education on 19.12.2005
and the proposal was forwarded to the State Government for
filling up the post of Associate Lecturer by promoting the
petitioner. However, the state government rejected the
proposal of promoting the petitioner on the ground that in
the recruitment rules of GBTC institutions, there are no
provisions for filling up the post of teaching/non-teaching staff
by way of promotion. The said decision was taken on
19.10.2006 and the said letter was communicated to the
institution on 7.2.2007. In turn, the petitioner was informed
somewhere in June 2009. On 25.8.2009, the following
documents were asked for from the Higher Education
Commissioner of Higher Education under RTI 2005. The
recruitment and promotion rules pertaining to teaching and
non teaching staff of GBTC. The promotional rules of the
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teaching and technical staff. In response to the same, the
Office of Higher Education furnished the information under
RTI on 23.9.2009 that there are no rules for recruiting and
promoting the staff of GBTC and the government resolutions
pertaining to the subject were furnished. Hence, this petition
is filed.
3. Heard learned advocates for the parties.
3.1 Learned advocate for the petitioner submitted that
since 1994, the petitioner was performing the duty of an
Associate Lecturer and the State Examination Board and
Bhavnagar University have appointed the petitioner as paper
setter for Gujarati and social studies subjects for the
examination of university and State Board examination. Thus,
indirectly, the respondent authorities approved the work
performed by the petitioner but by advancing reasons of no
provisions in the Rules, the claim of the petitioner is being
denied. That for the post of an Associate Lecturer, the
requisite qualification is M.A. Bed. and the petitioner is
possessing said qualification and since 1994 performing the
duties as an Associate Lecturer as well as setting the papers
for the university students under the order of State
Examination Board. That till the date of the petition, the
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impugned post of an Associate Lecturer is vacant since 1994
and though the respondent Institute needs an Associate
Professor badly, and the present petitioner is performing an
Associate Lecturer's duties since 1994, the impugned
communication is liable to be quashed and set aside and the
petitioner be given promotion to the post of an Associate
Lecturer. He submitted that at the time of the petition, there
were only three-year service left in the superannuation of the
petitioner and therefore also the petitioner may be given the
post of an Associate Lecturer. However, the claim of the
petitioner was rejected on the ground that as per the
recruitment and promotional rules for teaching/non-teaching
staff of GBTC institutes, there are no provisions for
promotion. It is submitted that the fact is totally incorrect
that there are no recruitment rules either for the teaching or
non teaching staff of GBTC institutes are framed. Further,
the petitioner is denied the equal treatment as the
respondent authority vide order dated 19.10.2005 granted
permission to the respondent Institute to appoint head clerk
and Senior Clerk by promotion only and the similar benefit
is being denied to the petitioner. It is further submitted that
the issue is not directly dealt with and issue about
compliance or direction of learned Tribunal is also not dealt
with nor it was clarified that before rejecting proposal, no
process has been undertaken as directed by the learned
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Tribunal vide order dated 3.11.2004. It is submitted that
though it was directed by this Court vide order dated
4.3.2022 as to whether any particular rules are framed and
any resolution in specific are available or not with regard to
promotion to a teaching staff, the said issue is not clarified
nor any rules with regard to promotion of teaching staff were
produced on record by the respondents because it is clear
that there are no rules pertaining to the same. Therefore
this petition may be allowed as there was gross inaction on
the part of the respondents authority.
3.2 Per contra, learned advocates for the respondents,
by referring to the affidavit in reply, have submitted that the
following factors should be taken into consideration for
appreciating the grievance raised in the petition. The
respondent no.4 herein is grant-in-aid Institute which is
established for running various courses in basic training. It is
submitted that since the Institute such as respondent no.4
Institute are established and run for a particular purpose
imparting basic training college, all expenses are borne by
State in form of grant. The respondent no.4 Institute is being
provided grant and the establishment of all staff is also
sanctioned inn sanctioned establishment. There are various
posts, one of which is of Craft teacher. The present petitioner
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is appointed as Craft teacher in respondent no.4 Institute
with effect from 1978. The respondent no.4 Institute applied
for no objection certificate from Office of the respondent for
recruiting the lecturer as per the sanctioned establishment.
The Office of the respondent by letter dated 1994 granted no
objection certificate to the respondent no.4 Institute for filling
up of post of lecturer. And it is clear that the No Objections
certificate is granted for filling up of the post of Associate
Lecturer by reserved category candidate depending upon the
roster point. Pursuant to the same, the recruitment process
was undertaken and the respondent no.4 Institute could not
find suitable candidate and that is how the post remained
vacant. The respondent no.4 Institute received an
unprecedented proposal from the petitioner that since the
present petitioner is possessing requisite qualification for
appointment to the post of Lecturer, the Institute may be
permitted to promote him to the post of Lecturer. However,
as there is no provision for filling up of the post of lecturer
by promotion and the post of lecturer is required to be filled
by direct selection, the same was not acceded to. Thereafter,
as the petitioner approached the tribunal praying for grant of
promotion to the post of Associate Lecturer which was
disposed of by an order dated 3.11.2004 directing the office of
the respondents to consider the claim of the petitioner for
promoting to the post of Associate Lecturer. It is submitted
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that pursuant to the same and in due compliance of order
passed by the Tribunal, the proposal of the Institute for
promoting the petitioner to the post of Associate Lecturer
was rejected after careful considering all relevant aspects.
The main fact was that there is no provision for appointment
by way of promotion. It is submitted that even the petitioner
has not produced any document to substitute his claim that
the post of the Associate Lecturer can be filled in by way of
promotion and therefore the order impugned is just and
proper.
3.3 In pursuance of the order dated 4.3.22 passed by
this Court, the respondents filed a further affidavit- in-reply
stating that the said post of Associate Lecturer was
sanctioned with few conditions whereby the process of filling
up the said post is already determined by the sanctioning
authority. It is submitted that while granting a sanctioned
post for requirement of an Associate Lecturer in the said
Institute, NOC dated 31.8.1994 was granted whereby the said
post was clearly created for Scheduled Tribes category
candidates. Pursuant to the direction given by the Tribunal,
the petitioner herein was called upon a given opportunity of
hearing and thereafter the order was passed by the
respondent authorities. As there are no rules with regard to
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filling up the post of Associate Lecturer by way of promotion,
the respondent authorities could not accept the prayer of the
petitioner. Therefore, it is submitted to dismiss this petition.
4. I have heard the learned advocates for the parties
and perused the material placed on record. The only
grievance raised in the petition is that the petitioner was
selected as Craft Teacher in the respondent no.4-institute,
however, as the post of Associate Lecturer was vacant, he
was given the additional duties from 1994 and therefore he
should be given the post of Associate Lecturer by way of
promotion. To this, the say of the respondent is that as
there is no provision of filling up of the post of lecturer by
promotion and it is required to be filled in by direct
selection, the prayer of the petitioner cannot be accepted. The
petitioner has not produced any document to show that there
are rules to fill up the post of Associate Lecturer by way of
promotion and still the respondents are not doing so and are
taking his services without giving such promotion to him. On
the contrary, from the documents produced by the
respondents, it transpires that there are no express rules to
fill up the said post by way of promotion. Therefore, the
action of the respondents in not granting the prayer of the
petitioner to give her promotion to the post of Associate
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Lecturer, as prayed for, cannot be said to be illegal or
arbitrary. When there are no such rules, the respondents
hands are also tied in granting such prayer.
5. In view of the above discussion, the prayers
prayed for in this petition are not required to be entertained
and therefore this petition is dismissed. Notice/Rule is
discharged. Interim relief, if any, stands vacated.
(SANDEEP N. BHATT,J)
SRILATHA
