Gujarat High Court
Jitendrakumar Chandulal Dave vs State Of Gujarat on 2 February, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/12012/2019 JUDGMENT DATED: 02/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12012 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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JITENDRAKUMAR CHANDULAL DAVE
Versus
STATE OF GUJARAT
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Appearance:
MR KB PUJARA(680) for the Petitioner(s) No. 1
MR. MEET THAKKAR, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2
NOTICE SERVED BY DS for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 02/02/2022
ORAL JUDGMENT
1 Rule returnable forthwith. Heard Mr.K.B.Pujara, learned counsel for the petitioner and Mr.Meet Thakkar, learned Assistant Government Pleader for the respondent - State.
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C/SCA/12012/2019 JUDGMENT DATED: 02/02/2022 2 By way of this petition under Article 226 of the Constitution of
India, the petitioner challenges the communication / impugned order dated 01.07.2019 (Annexure-'J'), by which the grade pay granted to the petitioner of Rs.9,000/- has unilaterally been withdrawn by the Government Polytechnic, Ahmedabad.
2.1 Facts in brief would indicate that on passing M.Sc (Mathematics), the petitioner was appointed as a Lecturer in Mathematics in the Government Engineering College in the pay-scale of Rs.2,200-4,000/- on an ad-hoc basis by a Notification dated 11.08.1997. 2.2 The petitioner joined his duties on 17.09.1997 vide order dated 09.07.1999. On being selected through the Gujarat Public Service Commission for Gujarat Education Services, Class-II, the petitioner was appointed as a Lecturer (Mathematics, in the pay-scale of Rs.8,000-275- 13,500/) . He was confirmed in services on completion of his two years of probation with effect from 27.07.2001. On completion of six years of service, counting 17.09.1997 as his date of appointment, the petitioner was granted senior scale of Rs.10,000- 15,000/- vide order dated 01.07.2006. By an order dated 16.10.2009, the petitioner was granted the senior scale of Rs.12,000-18,300/- with effrect from 17.09.2001. The pay-scale of Rs.12,000-18,300/- was revised to that of Rs15,600-39,100/- with the academic grade pay of Rs.8,000/-. This was the grade pay of Rs.8,000/- which was granted to the petitioner with effect from Page 2 of 9 Downloaded on : Sat Feb 05 20:29:01 IST 2022 C/SCA/12012/2019 JUDGMENT DATED: 02/02/2022 17.09.2008.
2.3 The Resolution of the Education Department dated 02.08.2011 stipulated that the incumbent who completes three years of service in Lecturer selection grade with AGP of Rs.8,000/-, shall be eligible to the AGP of Rs.9,000/-. This resolution was passed in accordance with the resolution of the All India Council for Technical Education (fort short 'AICTE') dated 05.03.2010.
2.4 The petitioner was granted the grade pay of Rs.9,00/- therefore with effect from 17.09.2011 as the petitioner was satisfying the minimum years of service and the qualification. By the impugned communication, the same has been withdrawn. Even in the year 2009, a pay fixation order was issued by the Principal which specifically showed that on 17.09.2008 and 17.09.2011, the petitioner was fixed with AGP at Rs.8,000 and 9,000/- respectively.
3 Mr.K.B.Pujara, learned counsel for the petitioner, would submit that apart from being an order in violation of principles of natural justice, inasmuch as, not only was the recovery order per month of Rs.30,000/-, the order of withdrawing the grade pay was not warranted as the petitioner was entitled to the grade pay as AGP of Rs.9,000/-.
4 Mr.Meet Thakkar, learned Assistant Government Pleader, would Page 3 of 9 Downloaded on : Sat Feb 05 20:29:01 IST 2022 C/SCA/12012/2019 JUDGMENT DATED: 02/02/2022
rely on the affidavit-in-reply filed by the Dy.Director, Directorate of Techinical Education, Gandhinagar and submit that the AGP of Rs.9,000/- granted to the petitioner with effect from 17.09.2011 was wrongly granted by the Principal, AVPTI, Rajkot, who was not authorized to do that. Hence, it was asked to be withdrawn. 4.1 In order to justify the communication dated 01.07.2019, reliance is placed on the Government Resolution dated 12.11.2014, according to which the Education Department had introduced the policy to grant AGP movement as per AICTE notification.
4.2 Relying on Clause 6 of the Government Resolution, Mr.Thakkar, learned AGP, would submit that the benefit of AGP of Rs.9,000/- can be given to the employees who are educationally qualified for the post of Head of the Department. Undisputedly, the petitioner was having the requisite qualification for the post of Head of the Department. To fall back to satisfy this requirement, the Resolution dated 19.06.2012 is relied upon. Relying on the resolution, Mr.Thakkar, learned AGP, would submit that in order to be eligible for appointment by direct selection, an incumbent needs a Ph.D Degree or an equivalent degree in the appropriate branch of humanities etc. 4.3 In other words, the stand of the State is that, since the petitioner was not holding a Ph.D degree and therefore being not eligible to be appointed as the Head of the Department, the Expert Committee opined Page 4 of 9 Downloaded on : Sat Feb 05 20:29:01 IST 2022 C/SCA/12012/2019 JUDGMENT DATED: 02/02/2022 that the AGP of Rs.9,000/- was wrongly given to the petitioner and hence the communication dated 01.07.2019 and the notice to the Principal on 07.10.2019.
5 Mr.Pujara, learned counsel, has also placed on record communication dated 15.10.2020 issued by the AICTE addressed to the Joint Secretary of the Association of Gazetted Officers Technical Education. The impugned communication dated 01.07.2019 and the consequential withdrawal of the AGP of Rs.9,000/- for the reasons as stated in the affidavit-in-reply need to be rejected for the following reasons:
(I) What is evident is that the petitioner was appointed on 17.09.1997.
On completion of six years with effect from 17.09.2003, the petitioner was granted the senior scale of Rs.10,000-15,200/-, and thereafter on completion of further five years was granted the selection grade of Rs.12,000-18,300/- with effect from 17.09.2008. The resolution of the State Government dated 02.08.2011 keeping in mind the Notification dated 05.03.2010 of the AICTE, considering the case of the petitioner particularly in consensus with the stipulations as set out in Annexure-II of the resolution provided that Lecturers completing three years of teaching, AGP with Rs.8,000/- shall be eligible for the AGP of Rs.9,000/- In accordance with that, the petitioner was granted the grade pay of Page 5 of 9 Downloaded on : Sat Feb 05 20:29:01 IST 2022 C/SCA/12012/2019 JUDGMENT DATED: 02/02/2022 Rs.9,000/-.
(ii) It may be noted that this resolution was in recognition of the stipulation so formulated by the Notification of the AICTE dated 05.03.2010. Notification dated 05.03.2010 is also on record. The notification as the one of 02.08.2011 deals with revised scales, service conditions and advancement scheme for teachers and equivalent position. Clause 12 of the Notification reads as under:
"(xii) Lecturers (Selection Grade), completing 3 years of teaching with the AGP of Rs.8000 shall be eligible, subject to other conditions, as may be prescribed by AICTE, to move to the Pay Band of Rs.37400-67000 with AGP of Rs.9000."
For the purposes of brevity, clause (xii) of the resolution of the State, taking into consideration the notification of 05.03.2012 also reads as under:
"(12) Lecturer (Selection Grade), completing 3 years of teaching with the AGP of Rs.8000 shall be eligible, subject to other conditions, as may be prescribed by AICTE, to move to the Pay Band of Rs.37400-67000 with AGP of Rs.9000."
Reading these two stipulations, it is evident that the yardstick for awarding the AGP of Rs.9000 were not in consensus with the resolution of the notification dated 05.03.2010.
(iii) The AICTE came out with a notification dated 08.11.2012. These were called the All India Council for Technical Education (Career Advancement Scheme for the Teachers and other Academic Staff in Page 6 of 9 Downloaded on : Sat Feb 05 20:29:01 IST 2022 C/SCA/12012/2019 JUDGMENT DATED: 02/02/2022 Technical Institutions) (Diploma) Regulations,2012. Clause 3.8 of these regularions would be relevant, which reads as under:
"3.8 Lecturer completing three years of teaching in the grade of Rs.7000 (stage 3) shall be eligible, subject to the qualifying conditions and the AP based PBAS requirements prescribed by these Regulations to move to the Pay Band of Rs.37400-67000 with next higher grade of Rs.8000 (stage 4) and to he designated as Lecturer (Selection Grade). However, those joining the service after 5th March 2010 shall have also earned Ph.D in addition to above mentioned requirements to move in the Stage 4."
(iv) This clause also is in line with the notification of the AICTE dated 05.03.2012 of the Government Resolution dated 02.08.2011. However, what needs to be pointed out while reproducing the clause 3.8 which is reproduced hereinabove is that after setting out a minimum yardstick of three years for the purposes of being eligible to be granted the AGP of Rs.9,000/-, the clause further stipulates that those joining the services after 05.03.2020 shall have also earned EHD in addition to above mentioned requirements to move to stage 4. It is in light of this clause that the stand of the Government needs to be rejected outright.
(v) It is also to be noted that even the AICTE in its communication dated 15.10.2020 which is placed on record has opined that the cases of faculty members who had joined services before 05.03.2010 and are otherwise eligible to move to AGP of Rs.9,000/- (stage 4) will continue to be processed as per the provisions mentioned in para 3.8 of the AICTE Page 7 of 9 Downloaded on : Sat Feb 05 20:29:01 IST 2022 C/SCA/12012/2019 JUDGMENT DATED: 02/02/2022 Gazette Notification dated 04.01.2016. The communication, therefore, stated that "It may thus be concluded that Ph.D requirement for praying AGP of Rs.9,000/- is essentially only for those faculty members who have joined after 05.03.2010."
6 As per the government response, the petitioiner did not hold the qualification of Ph.D which a head of department ought to held in consensus with the rules set out by the notification dated 19.06.2012. Based on this notification of 19.06.2012, clause 6 of the Government Resolution dated 12.11.2014 was pressed into service which required specifying the educational qualification of holding of Ph.D degree for the purposes of being a Head of Department.
6.1 Reading the notification dated 08.11.2012, particularly in light of the exception set out in the last para of Clause 3.8, the requisite of holding of Ph.D degree could only be insisted upon if an appointee was post 05.03.2010. Evident it is from the facts narrated hereinabove and which cannot even be disputed by other side is that the appointment of the petitioner was prior to 05.03.2010. that is evident even from the extension of benefits of the AGP of Rs.9,000/- which was granted to the petitioner following the notification of 05.03.2010. 6.2 Clearly therefore, the action of the respondents in recovering the amount of AGP of Rs.9,000/- and reducing the same and withdrawing it Page 8 of 9 Downloaded on : Sat Feb 05 20:29:01 IST 2022 C/SCA/12012/2019 JUDGMENT DATED: 02/02/2022 is not in accordance with the position of law enunciated hereinabove. 7 Accordingly, the communication dated 01.07.2019 is set aside. It is declared that the grant of AGP of Rs.9,000/- to the petitioner with effect from September 2011 is held to be in accordance with law and ought not to be withdrawn.
The respondents are directed to refund any amount that has been recovered from the petitioner pursuant to the impugned communication dated 01.07.2019 and are further directed to restore the AGP of Rs.9,000/- from 17.09.2011 to the petitioner and to pay arrears within a period of six weeks from the date of receipt of copy of this order. Rule is made absolute to the above extent. Direct service is permitted.
(BIREN VAISHNAV, J) Bimal Page 9 of 9 Downloaded on : Sat Feb 05 20:29:01 IST 2022