Gujarat High Court
Jigar Arvindbhai Joshi vs State Of Gujarat on 17 July, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2292 of 2017
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R/SPECIAL CIVIL APPLICATION NO. 16434 of 2017
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With
R/SPECIAL CIVIL APPLICATION NO. 17616 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 19479 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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Approved for Reporting Yes No
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JIGAR ARVINDBHAI JOSHI & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR PP MAJMUDAR, MR ASHOK A PUROHIT, MR NR DESAI, MR GAURAV
CHUDASAMA, MR JAY K PUROHIT, MR BHAVESH J PATEL and MR
RADHESH Y VYAS, ADVOCATES for the Petitioners
MS SURBHI BHATI, AGP for the Respondents - State Authorities
MR PREMAL JOSHI, MR HS MUNSAHW, MR RB THAKOR, MS RV
ACHARYA, MR MANISH J PATEL, MR NILESH PANDYA, MR ABHISHEK A
JOSHI, MR MAHARSHI PATEL for HL PATEL ADVOCATES, MR UM
SHASTRI, ADVOCATES for the Respondents - Panchayats & other
Authorities
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
CAV JUDGMENT
1. Since the issue involved in this group of petitions,
the contentions raised and submissions made by the learned
advocates for the respective parties are identical, with the
consent of the learned for the respective parties, all these
petitions are heard and decided finally by this Court.
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2. By way of these petitions, the petitioners seek
direction against the respondent authorities to consider them
as eligible for the purpose of promotion to the post of Head
Teachers by considering their services put in as Vidhya
Sahayakas as their experience for such promotion by
accepting their physical forms; and that to direct the
respondent authorities not to issue final promotion orders to
any persons.
3. Heard learned advocates. Rule returnable forthwith.
4.1 Learned advocate Mr. P.P.Majmudar for the
petitioners has mainly contended that the petitioners have
experience of more than five years considering their date of
initial appointment, which was on fixed basis, as Vidhya
Sahayaks, which is required to be considered for the purpose
of promotion, seniority, higher pay-scale and retiral benefits
as per the Government Resolution dated 18.01.2017. He has
further submitted that only the nomenclature of Vidhya
Sahayakas cannot make any difference and the work done by
Vidhya Sahayakas is identical to the teaching work which is
done by Primary Teachers and therefore, there is no
requirement and the distinction which is sought to be made
between two similarly situated classes of the Teachers by the
respondent authorities, is illegal.
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4.2 He has raised several other contentions before this
Court regarding clearance of HTAT, fixed pay salary,
absorption after five years experience, eligibility criteria,
educational qualification, etc., however, these issues are not
significant to the reliefs as prayed for, therefore, they do not
need to be addressed.
5.1 Per Contra, learned AGP Ms.Surbhi Bhati for the
State has vehemently opposed these petitions. She has drawn
the attention of this Court towards the affidavit-in-replies
filed by the respondents - various Government authorities
and has submitted that the Government Resolution dated
18.01.2017 is not applicable to the petitioners, since they
were initially appointed as Vidhya Sahayakas. She has
further submitted that in the appointment orders of the
petitioners itself, it is specifically stated at Condition No.12
that, if the services as Vidhya Sahayakas, after completion of
two years, found satisfactory, in that case, in seriatim, they
will be accommodated to the post of Primary Teachers
against the vacancy arises due to superannuation of Primary
Teachers. She has also submitted that it is further
categorically stated in the said appointment orders that after
completion of five years, all Vidhya Sahayakas shall be
accommodated in the pay-scale of Primary Teacher.
5.2 She has also submitted that the Education
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Department in exercise of the powers conferred by Section
23(3) of the Gujarat Primary Education Act, 1947 has framed
the Head Teacher Class-III in the Subordinate Service of the
Directorate of Primary Education or respective District or
Municipal Primary Education Committee Recruitment Rules,
2012. As per Rule-2, the appointment to the post of Head
Teacher shall be made by promotion of a person of proved
merit and efficiency from amongst the persons who have
worked for not less than five years in the cadre of Primary
Teacher Class-III in the Subordinate Services of Directorate of
Primary Education or respective District or Municipal Primary
Education Committee. She has further submitted that in the
present case, admittedly, the petitioners were appointed to
the post of Primary Teacher vide order dated 17.12.2015,
meaning thereby, they entered in the cadre of Primary
Teacher in the year 2015, therefore, the services put in by
the petitioners as Vidhya Sahayakas cannot be counted for
such promotion. She has submitted that these petitions may
be dismissed
6. I have considered the rival submissions made by
the learned advocates for the respective parties. I have
perused the documents available on record.
6.1 From the submissions canvassed by the learned
advocates for the respective parties, this Court finds that the
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main controversy between the parties would be that the
petitioners be treated as eligible for the purpose of promotion
to the post of Head Teacher by considering their five years'
services put in as Vidhya Sahayakas.
6.2 It is a matter of record that the petitioners are
appointed as Vidhya Sahayakas in the year 2010/2011. There
are various conditions mentioned in the appointment orders.
Condition No.12 of the appointment order specifically states
that after two years, if the services as Vidhya Sahayakas are
found satisfactory, the posts falling vacant due to the
retirement of Teachers of that year, will be included in the
regular pay-scale of Rs.5200-20200 as Primary Teachers, in a
phased manner. At the end of five years, all the remaining
Vidhya Sahayakas will be included in the pay-scale of
Primary Teachers.
6.3 At the time of joining the services as Vidhya
Sahayakas, the petitioners are well aware about these
conditions and about the fact that they are going to work as
Vidhya Sahayakas with fixed pay and not the Primary
Teachers with regular pay-scale. They are also well aware
about the various conditions, including Condition No.12,
mentioned above, that they will be absorbed as Primary
Teacher with regular pay-scale as and when posts get vacant
or at the end of five years service as Vidhya Sahayakas in
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fixed pay.
6.4 From above, it is clear that the petitioners are
appointed as Vidhya Sahayakas in fixed pay and not as
Primary Teacher with regular pay-scale; and that the
petitioners have completed five years' service as Vidhya
Sahayakas and not as Primary Teachers, indisputably.
6.5 The issue is raised before this Court when the
respondent authorities have denied the participation of the
petitioners for the post in question i.e. Head Teacher. As
averred, the petitioners are possessing requisite qualification
for the post of Head Teachers. The respondent authorities did
not raise any doubt regarding the educational qualification of
the petitioners. The only question would be that the services
rendered by the petitioners as Vidhya Sahayakas i.e. five
years service should be considered as experience for the post
of Head Teacher, which the respondent authorities have
denied.
6.6 Rule-2(a)(i) of the Head Teacher, Class-III, in the
subordinate service of the Directorate of Primary Education
or respective District or Municipal Primary Education
Committee, Recruitment Rules, 2012 reads as under :
"2 Appointment to the post of Head
Teacher, Class III, int eh subordinate service
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of the Directorate of Primary Education or
respective District or Municipal Primary
Education Committee, 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 five
years in the cadre of Primary Teacher, Class
III, in the subordinate service of the
Directorate of Primary Education or respective
District or Municipal Primary Education
Committee; "
6.7 The Finance Department, Government of Gujarat
vide its Resolution dated 18.01.2017 clearly stated that the
five years fixed pay period of the employees is not taken into
account in any matter related to service/job.
6.8 The petitioners are seeking promotion to the post
of Head Teachers. The hierarchy of the said class is as
under.
Head Teachers
Primary Teachers
Vidhya Sahayakas
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As per the conditions mentioned in the
appointment orders of Vidhya Sahayakas itself, if the services
as Vidhya Sahayakas, after completion of two years, found
satisfactory, in that case, in seriatim, they will be
accommodated to the post of Primary Teachers against the
vacancy that arises due to superannuation of primary
teachers; and that after completion of five years, all the
Vidhya Sahayakas shall be accommodated in the pay-scale of
Primary Teacher. Thus, it is clear that the petitioners are
appointed in the post of Vidhya Sahayakas with fixed pay
and not in the post of Primary Teachers with regular pay-
scale.
6.9 By way of these petitions, the petitioners seek
promotion to the post of Head Teachers directly from the
post of Vidhya Sahayakas. The rules/resolutions/policies time
and again clarifies that the experience as Vidhya Sahayaka
in fixed pay should not be treated for any purpose in service.
It is a matter of record that the petitioners have been
absorbed as Primary Teachers after completion of five years
services in the year 2015-2016. They claim participation for
the post of Head Teachers in the year 2017. Therefore,
indisputably, they have not rendered services of five years in
the post of Primary Teachers.
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6.10 This Court, vide interim order, directed the
respondent authorities to permit the petitioners to fill up
their forms for the post of Head Teachers and this Court has
clarified that the petitioners cannot create any equity by that
arrangement. The said order was subject to outcome of these
petitions.
6.11 On inquiry, it is reported that by efflux of time,
the petitioners have completed five years service as Vidhya
Sahayakas in fixed pay, therefore, they are given full pay-
scale and are treated as Primary Teachers from the year
2015/2016. Further, it is reported that some of the petitioners
wanted to withdraw their claim from this group on that
basis also. The process for the post in question might be
over by this time. Further, it may also have happened that
many of them must have been promoted as Head Teacher or
their successful completion of five years as a Primary
Teacher. Because of the subsequent development, it is not
that these petitions have become academic bust when the
petitioners were not eligible on the date of these petitions,
for the reasons mentioned hereinabove, these petitions are not
required to be entertained.
7.1 At this stage, it would be fruitful to refer to the
decision of the Hon'ble Apex Court in the case of V.Vincent
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Velankanni versus Union of India and others reported in
2024 SCC OnLine SC 2642, more particularly Paras : 42 and
43 thereof, which read as under.
"42. It is trite law that an Office
Memorandum/Government Order cannot have a
retrospective effect unless and until there is an
express provision to make its effect retrospective
or that the operation thereof is retrospective by
necessary implication. In this regard, we are
benefitted by the observations of this Court in
Sonia vs. Oriental Insurance Co. Ltd. and Others
, (2007) 10 SCC 627 wherein it was held that :
"11...In any view of the matter, law
is well settled that an Office
Memorandum cannot have a
retrospective effect unless and until
intention of the authorities to make it
as such is revealed expressly or by
necessary implication in the Office
Memorandum."
43. If a Government Order is treated to be
in the nature of a clarification of an earlier
Government Order, it may be made applicable
retrospectively. Conversely, if a subsequent
Government Order is held to be a
modification/amendment of the earlier Government
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Order, its application would be prospective as
retrospective application thereof would result in
withdrawal of vested rights which is
impermissible in law and the same may also
entail recoveries to be made. The principles in
this regard were culled out by this Court in a
recent judgment of Sree Sankaracharya University
of Sanskrit and Others vs. Dr. Manu and
Another 2023 SCC OnLine SC 640, in the
following terms: -
"52. From the aforesaid authorities,
the following principles could be
culled out :
(i) If a statute is curative or merely
clarificatory of the previous law,
retrospective operation thereof may be
permitted.
(ii) In order for a subsequent
order/provision/amendment to be
considered as clarificatory of the
previous law, the pre-amended law
ought to have been vague or
ambiguous. It is only when it would
be impossible to reasonably interpret
a provision unless an amendment is
read into it, that the amendment is
considered to be a clarification or a
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declaration of the previous law and
therefore applied retrospectively.
(iii) An explanation/clarification may
not expand or alter the scope of the
original provision.
(iv) Merely because a provision is
described as a clarification/explanation,
the Court is not bound by the said
statement in the statute itself, but
must proceed to analyse the nature of
the amendment and then conclude
whether it is in reality a clarificatory
or declaratory provision or whether it
is a substantive amendment which is
intended to change the law and which
would apply prospectively.""
7.2 It would also be fruitful to refer to the decision of
the Hon'ble Apex Court in the case of Government of West
Bengal & others versus Dr. Amal Satpathi & others, Diary
No.43488 of 2023 dated 27.11.2024, wherein the Hon'ble Apex
Court has observed as under :
"19. It is a well settled principle that promotion
becomes effective from the date it is granted, rather
than from the date a vacancy arises or the post is
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created. While the Courts have recognized the right to
be considered for promotion as not only a statutory
right but also a fundamental right, there is no
fundamental right to the promotion itself. In this
regard, we may gainfully refer to a recent decision of
this Court in the case of Bihar State Electricity Board
and Others v. Dharamdeo Das, 2024 SCC OnLine SC
1768 wherein it was observed as follows :
18. It is no longer res integra that a
promotion is effective from the date it is
granted and not from the date when a
vacancy occurs on the subject post or when
the post itself is created. No doubt, a right
to be considered for promotion has been
treated by courts not just as a statutory
right but as a fundamental right, at the
same time, there is no fundamental right to
promotion itself. In this context, we may
profitably cite a recent decision in Ajay
Kumar Shukla v. Arvind Rai, (2022) 12
SCC 579 where, citing earlier precedents in
Director, Lift Irrigation Corporation Ltd. v.
Pravat Kiran Mohanty, (1991) 2 SCC 295
and Ajit Singh v. State of Punjab, (1999) 7
SCC 209 a three-Judge Bench observed
thus:
41. This Court, time and again, has laid
emphasis on right to be considered for
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promotion to be a fundamental right, as
was held by K. Ramaswamy, J., in Director,
Lift Irrigation Corpn. Ltd. v. Pravat Kiran
Mohanty in para 4 of the report which is
reproduced below:
4. There is no fundamental right to
promotion, but an employee has only right
to be considered for promotion, when it
arises, in accordance with relevant rules.
From this perspective in our view the
conclusion of the High Court that the
gradation list prepared by the corporation is
in violation of the right of respondent-writ
petitioner to equality enshrined under
Article 14 read with Article 16 of the
Constitution, and the respondent-writ
petitioner was unjustly denied of the same
is obviously unjustified.
42. A Constitution Bench in Ajit Singh v.
State of Punjab, laying emphasis on Article
14 and Article 16(1) of the Constitution of
India held that if a person who satisfies the
eligibility and the criteria for promotion but
still is not considered for promotion, then
there will be clear violation of his/hers
fundamental right. Jagannadha Rao, J.
speaking for himself and Anand, C.J.,
Venkataswami, Pattanaik, Kurdukar, JJ.,
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observed the same as follows in paras 22
and 27:
Articles 14 and 16(1) : is right to be
considered for promotion a fundamental
right
22. Article 14 and Article 16(1) are closely
connected. They deal with individual rights
of the person. Article 14 demands that the
State shall not deny to any person equality
before the law or the equal protection of
the laws. Article 16(1) issues a positive
command that:
'there shall be equality of opportunity for all
citizens in matters relating to employment
or appointment to any office under the
State'.
It has been held repeatedly by this Court
that clause (1) of Article 16 is a facet of
Article 14 and that it takes its roots from
Article 14. The said clause particularises the
generality in Article 14 and identifies, in a
constitutional sense equality of opportunity
in matters of employment and appointment
to any office under the State. The word
employment being wider, there is no dispute
that it takes within its fold, the aspect of
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promotions to posts above the stage of
initial level of recruitment. Article 16 (1)
provides to every employee otherwise eligible
for promotion or who comes within the zone
of consideration, a fundamental right to be
considered for promotion. Equal opportunity
here means the right to be considered for
promotion. If a person satisfies the eligibility
and zone criteria but is not considered for
promotion, then there will be a clear
infraction of his fundamental right to be
considered for promotion, which is his
personal right. Promotion based on equal
opportunity and seniority attached to such
promotion are facets of fundamental right
under Article 16(1).
* * *
27. In our opinion, the above view expressed
in Ashok Kumar Gupta [ Ashok Kumar
Gupta v. State of U.P., (1997) 5 SCC 201
and followed in Jagdish Lal [ Jagdish Lal v.
State of Haryana, (1997) 6 SCC 538 and
other cases, if it is intended to lay down
that the right guaranteed to employees for
being considered for promotion according to
relevant rules of recruitment by promotion
(i.e. whether on the basis of seniority or
merit) is only a statutory right and not a
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fundamental right, we cannot accept the
proposition. We have already stated earlier
that the right to equal opportunity in the
matter of promotion in the sense of a right
to be considered for promotion is indeed a
fundamental right guaranteed under Article
16(1) and this has never been doubted in
any other case before Ashok Kumar Gupta
[Ashok Kumar Gupta v. State of U.P.], right
from 1950.
20. In State of Bihar v. Akhouri Sachindra
Nath, 1991 Supp (1) SCC 334 it was held
that retrospective seniority cannot be given
to an employee from a date when he was
not even borne in the cadre, nor can
seniority be given with retrospective effect
as that might adversely affect others. The
same view was reiterated in Keshav
Chandra Joshi v. Union of India, 1992 Supp
(1) SCC 272 where it was held that when a
quota is provided for, then the seniority of
the employee would be reckoned from the
date when the vacancy arises in the quota
and not from any anterior date of promotion
or subsequent date of confirmation. The said
view was restated in Uttaranchal Forest
Rangers Assn. (Direct Recruit) v. State of
U.P., (2006) 10 SCC 346 , in the following
words:
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37. We are also of the view that no
retrospective promotion or seniority can be
granted from a date when an employee has
not even been borne in the cadre so as to
adversely affect the direct recruits appointed
validly in the meantime, as decided by this
Court in Keshav Chandra Joshi v. Union of
India held that when promotion is outside
the quota, seniority would be reckoned from
the date of the vacancy within the quota
rendering the previous service fortuitous.
The previous promotion would be regular
only from the date of the vacancy within
the quota and seniority shall be counted
from that date and not from the date of his
earlier promotion or subsequent confirmation.
In order to do justice to the promotes, it
would not be proper to do injustice to the
direct recruits.
38. This Court has consistently held that no
retrospective promotion can be granted nor
can any seniority be given on retrospective
basis from a date when an employee has
not even been borne in the cadre
particularly when this would adversely affect
the direct recruits who have been appointed
validity in the meantime. (emphasis
supplied)"
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8. In view of above facts and circumstances of the
case, this Court finds that the prayers made by the
petitioners need not be considered at this stage. These
petitions are devoid of merit. There is no discrimination or
illegality by the respondent authorities in the process of post
in question - Head Teachers at that relevant time. These
petitions therefore need to be dismissed and are dismissed
accordingly. Rule is discharged. Interim relief granted earlier
stands vacated.
9. In view of above, civil applications would not
survive and are disposed of accordingly.
(SANDEEP N. BHATT,J)
M.H. DAVE
