Gujarat High Court
Prajapati Bharatkumar Dalsukhbhai vs State Of Gujarat on 25 February, 2022
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/14434/2016 CAV JUDGMENT DATED: 25/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14434 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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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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PRAJAPATI BHARATKUMAR DALSUKHBHAI
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR KB PUJARA(680) for the Petitioner(s) No. 1
MR KM ANTANI, AGP for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 25/02/2022
CAV JUDGMENT
1. Heard learned advocate Mr. K.B. Pujara for the petitioner and learned Assistant Government Pleader Mr. K.M. Antani for the respondent-State through Video Conference.
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2. Rule returnable forthwith. Learned Assistant Government Pleader Mr. Antani waives service of notice of rule on behalf of respondetn-State.
3. The petitioner is aggrieved by action of the respondents for not appointing him as Assistant Professor, Mechanical Engineer, Class-II in Government Engineering college, pursuant to advertisement no.48/2013 dated 30.09.2013 though the petitioner was selected by Gujarat Public Service Commission (For short "GPSC") on the ground that the petitioner is not possessing the qualification equivalent to Bachelor of Engineering (Mechanical).
4. The petitioner who belongs to Socially and Educationally Backward Class category is having qualification of Bachelor of Engineering (Mechatronics) and Master of Engineering (Mechanical).
5. GPSC issued advertisement no. 48/2013 dated 30.9.2013 inviting the applications for 103 posts of Assistant Professors, Mechanical Engineering in Gujarat Education Service (Collegiate Branch) Class-II for Government Engineering Colleges.
6. The petitioner passed through the Page 2 of 26 Downloaded on : Fri Feb 25 22:49:48 IST 2022 C/SCA/14434/2016 CAV JUDGMENT DATED: 25/02/2022 selection process and his name was placed at Serial No.71 in the Final Selection List of 92 candidates published by GPSC on 17.3.2016. GPSC informed the petitioner vide letter dated 31.3.2016 that his name was recommended for appointment to the Education Department of the State Government. Thereafter, the petitioner was called for verification of the documents on 26.4.2016 by call letter dated 16.4.2016.
7. However, thereafter the State Government appointed all other 91 candidates by order dated 8.6.2016 but declined to appoint the petitioner by notification dated 19.7.2016 on the ground that the petitioner is not possessing the Graduation degree in Mechanical Engineering and therefore, he is not possessing the equivalent qualification as stated in Government Resolution dated 28.10.2013. The petitioner therefore, has preferred this petition on 19.8.2016.
8. Learned advocate Mr. K.B. Pujara for the petitioner submitted that the action of the State Government of not appointing the petitioner though selected by GPSC is discriminatory, arbitrary and violative of Articles 14 and 16 of the Constitution of India.
Page 3 of 26 Downloaded on : Fri Feb 25 22:49:48 IST 2022C/SCA/14434/2016 CAV JUDGMENT DATED: 25/02/2022 8.1) Learned advocate Mr. Pujara pointed out that similarly situated other candidate Mr. Raval Samir Kanaiyalal was appointed as Lecturer of Mechanical Engineering in previous recruitment undertaken by way of advertisement no.163/2010 dated 6.2.2010 though the said candidate was possessing qualification of BE (Mechatronics) and ME (Mechanical Engineering) just like the petitioner. Reference was made to the copies of advertisement, mark-sheets and certificates of the said candidate, the selection made by GPSC dated 8.2.2011 and appointment order dated 16.7.2014 issued by the respondents appointing the said candidate.
8.2) Learned advocate Mr. Pujara further submitted that candidates namely, (i) Mr. Satyam P. Patel (ii) Mr. Kirankumar C. Patel have been appointed as Assistant Professor of Mechanical Engineering by Gujarat Technological University having similar qualifications as that of the petitioner.
8.3) Learned advocate Mr. Pujara placed reliance upon the decision of Supreme Court in case of State of Andhra Pradesh vs. Shaikh Mahibulla Sharief reported in 2017(5)SCC 237, wherein the Apex Court held that if the Government had considered a particular degree Page 4 of 26 Downloaded on : Fri Feb 25 22:49:48 IST 2022 C/SCA/14434/2016 CAV JUDGMENT DATED: 25/02/2022 as equivalent to any other degree and permitted the appointment of similarly situated candidate, then another similarly situated candidate cannot be said to be ineligible.
8.4) Reliance was also placed upon Government Resolution dated 14.6.2016 as well as Government Resolution dated 6.7.2019 to submit that as per Government Resolution dated 14.6.2016, clarification was issued with regard to other equivalent qualifications for recruitment of Assistant Professors in several subjects, but the benefit of such Government Resolution was declined to the candidates whose writ petitions were pending before this Court on the ground that the said Government Resolution would apply prospectively. In that context, learned advocate Mr. Pujara referred to the judgment and order of this Court (Coram : Hon'ble Mr. Justice J.B. Pardiwala,) dated 22.6.2016 in Special Civil Application No12204/2015 and allied matters to submit that this Court has held that the benefit of the said Government Resolution would be applicable to all the candidates whose petitions were pending. It was pointed out that Letters Patent Appeal No.212/2017 and Letters Patent Appeal No.249/2017 preferred against the aforesaid order were dismissed by Page 5 of 26 Downloaded on : Fri Feb 25 22:49:48 IST 2022 C/SCA/14434/2016 CAV JUDGMENT DATED: 25/02/2022 the Division Bench of this Court (Coram:
Hon'ble Mr. Justice R.Subhash Reddy, CJ(As His Lordship was then) and Hon'ble Mr. Justice Vipul M. Pancholi) by order dated 10.2.2017 and thereafter, the State Government decided to accept the orders passed by this Court by letter dated 4.7.2017.
8.5) In view of the acceptance by the State Government to apply the Government Resolution dated 14.6.2016 to the pending petitions, it was submitted that the State Government issued one more Government Resolution dated 6.7.2019 during the pendency of this petition clarifying other equivalent qualifications and as per Government Resolution dated 6.7.2019, Degree of B.E. (Mechatronics) is now a valid qualification equivalent to B.E. (Mechanical) for the post of Assistant Professor of Mechanical Engineering and therefore, it was submitted that the petitioner is eligible and entitled to be appointed as Assistant Professor, Mechanical Engineering, Class-II in any Government Engineering college. It was further submitted that all other 91 candidates whose names are reflected in the final selection list have been appointed on 8.6.2016 and therefore, the petitioner should also be given the benefit of notional Page 6 of 26 Downloaded on : Fri Feb 25 22:49:48 IST 2022 C/SCA/14434/2016 CAV JUDGMENT DATED: 25/02/2022 seniority with effect from 8.6.2016 though the petitioner may not be granted the salary from the said date.
9. On the other hand, learned Assistant Government Pleader Mr. K.M. Antani submitted that the petitioner is not possessing the requisite qualification as per Government Resolution dated 23.10.2013. It was pointed out that the petitioner wrongly filled up educational qualification column in the application form by stating that he possesses degree of B.E.(Mechanical) whereas the petitioner was possessing degree of B.E. (Mechatronics). It was therefore, submitted that when the application form filled by the petitioner contained wrong details, no equity can be granted to the petitioner.
9.1) It was submitted by learned Assistant Government Pleader Mr. Antani that the petitioner has not come with clean hands as held by the Apex Court time and again that anyone coming to seek equity must come with clean hands, clean mind and clean objective. It was submitted that in the facts of the case, the petitioner has portrayed himself having qualified degree of equivalence which was based on his own presumptions and there was no Government Resolution clarifying the equivalent degree held by the petitioner at Page 7 of 26 Downloaded on : Fri Feb 25 22:49:48 IST 2022 C/SCA/14434/2016 CAV JUDGMENT DATED: 25/02/2022 the relevant time and therefore, degree possessed by the petitioner of B.E. (Mechatronics) cannot be considered as equivalent to that of degree of B.E. (Mechanical). It was submitted that there was no policy decision of the Government when the petitioner made application for the post of Assistant Professor, Mechanical Engineering to consider degree of B.E. (Mechatronics) equivalent to that of Degree of B.E. (Mechanical). Learned Assistant Government Pleader Mr. Antani placed reliance upon the Government Resolution dated 28.10.2013 as well as Government Resolution dated 14.6.2016 to point out that B.E. (Mechatronics) is not considered as equivalent to B.E. (Mechanical).
9.2) In support of his submissions learned Assistant Government Pleader Mr. Antani further relied upon the following averments made in the affidavit in reply filed on behalf of respondent no.2 :
"8.I say and submit that as above mention government Resolutions also mention that the B.E. Mechatronics is not as equivalent to B.E Mechanical. I humbly submit that in the aforesaid advertisement concerned eligibility requirement is of BE and ME Degree and the course curriculum in graduate level is an exhaustive one which is a four Page 8 of 26 Downloaded on : Fri Feb 25 22:49:48 IST 2022 C/SCA/14434/2016 CAV JUDGMENT DATED: 25/02/2022 year course whereas that of Master's Degree is a two years course and therefore even though the petitioners may be having a Bachelor Degree, in Mechatronics, it cannot be said that they have exhaustively studied the course and would be eligible to teach the students of Bachelor Degree in Mechanical Engineering.
9. I say and submit that it would be relevant to note here that in the advertisement itself, at Annexure B to the petition (@ page 35) column 5 states about which degrees are considered as equivalent were stated, in spite of which the petitioners who did not Possess the requisite degree, filled up the form by filing up wrong degree which they did not possessed thereby fraudulently made application, in spite of having full knowledge that (i) The petitioner is wrongly filing up details of educational qualifications, (ii) The petitioner did not have requisite qualification, (iii) that equivalence of his degree is not granted by state government against the required qualification, and stating the same on oath in petition that in spite of these fraud, kindly consider granting of equivalence, which is my respectful submission should be rejected by Hon'ble Court exercising writ jurisdiction.
10. I say and submit that the present petitioner also relied on the Government Resolution dated 26.06.2013 passed by Page 9 of 26 Downloaded on : Fri Feb 25 22:49:48 IST 2022 C/SCA/14434/2016 CAV JUDGMENT DATED: 25/02/2022 the Education Department inter alia, the petitioner is trying to show that the Mechatronics engineering is equivalent to mechanical engineering with this regard I humbly submit that the notification dated 26.06.2013 is for the rules to regulate admission to the first year of the master of engineering and technology and master of pharmacy courses and payment of fees. I humbly submit that the notification dated 26.06.2013 is only for to get admission in various post-graduation courses, it has no relevance to the recruitment of Assistant Professor ( Mechanical Engineering Class-II) because the admission rules are different thing and recruitment of the advertised post is the different thing. Here, for the post of Assistant Professor (Mechanical Engineering class-II) the requirement degree is B.E Mechanical Engineering. Therefore, the notification dated 26.06.2013 is not applicable to the petitioner for the post of Assistant Professor (Mechanical Engineering Class- II).
11. I say and submit that, even if the petitioner is permitted to appear in interview, then there would be several other persons who would also claim similar equivalence as they could not fill the form at the relevant point of time on the ground of not possessing requisite qualification, thus even on this ground, the prayers should not be granted as the stage of considering the Page 10 of 26 Downloaded on : Fri Feb 25 22:49:48 IST 2022 C/SCA/14434/2016 CAV JUDGMENT DATED: 25/02/2022 degree have already passed so far as present recruitment is concerned.
12. At this stage I would like to place on record, the relevant recruitment rules, which also specifies what should be the equivalent degree. A copy of Recruitment Rules is annexed hereby and marked as ANNEXURE-R-II.
13. I say and submit that it is settled principle of law as decided by Hon'ble Supreme Court decisions as well of various High Courts that no reliefs be granted to persons who has committed fraud, more particularly when he has participated in the recruitment by filling up form and having been disqualified is praying to change rules when the game has already been started."
9.3) Learned Assistant Government Pleader Mr. Antani therefore, submitted that the petitioner has rightly not been appointed to the post of Assistant Professor, Mechanical Engineering.
10. Having heard the learned advocates for the respective parties, the only controversy arising in this petition is with regard as to whether the petitioner possesses equivalent qualification to that of B.E. (Mechanical) or not?
11. The advertisement issued by GPSC Page 11 of 26 Downloaded on : Fri Feb 25 22:49:48 IST 2022 C/SCA/14434/2016 CAV JUDGMENT DATED: 25/02/2022 prescribed qualification for the appointment for post of Assistant Professor, Mechanical Engineering, Class-II as under :
"Possesses A Bachelor's degree in Engineering or Technology in the relevant branch with first class or equivalent qualification obtained from University recognised by the Govt.
Provided that if the candidate possesses a Master's degree in Engineering or Technology, first class or equivalent is required either at Bachelor's or at Master's level."
12. The qualification prescribed in the advertisement issued by GPSC was on the basis of Government Resolution dated 28.10.2013 which reads as under :
"After careful consideration, the Government is pleased to decide equivalent graduate and post graduate degree courses in Engineering or Technology as requisite qualification for appointment to the posts of Lecturers, Heads of Departments and Principals in Government polytechnics and Assistant Professors, Associate Professors, Professors and Principals in Government Engineering colleges, as shown in Annexure "A" annexed to this resolution. Subject to the condition that the basic degree of candidate must be in the relevant discipline at graduate level."Page 12 of 26 Downloaded on : Fri Feb 25 22:49:48 IST 2022
C/SCA/14434/2016 CAV JUDGMENT DATED: 25/02/2022
13. According to the aforesaid Government Resolution, Annexure-A attached thereto, prescribes requisite equivalent qualification for appointment to the post of Assistant Professor and as per the qualifications applicable for the post of Assistant Professor, Mechanical Engineering is provided in column no.3 as Industrial Engineering, Mechanical Engineering and Production Engineering. As the petitioner was not having Mechanical Engineering degree at Graduate level, he was not appointed though selected by GPSC. It is pertinent to note that during the pendency of this petition, the State Government has issued another Government Resolution dated 6.7.2019 which reads as under :
"Preamble The commisionerate of Technical Education has made a proposal vide letter referred to (1) above for considering various Graduate and Post Graduate Degree courses in Engineering or Technology as equivalent qualification for appointment to the various teaching posts in Government Polytechnics and Government Engineering Colleges. The matter was under
consideration of the Government.
The State Government, from time to time, has declared equivalency of Page 13 of 26 Downloaded on : Fri Feb 25 22:49:48 IST 2022 C/SCA/14434/2016 CAV JUDGMENT DATED: 25/02/2022 various Graduate and Post Graduate Degree Courses in Engineering or Technology read from serial no. (2) to (10) above. As there is a vast expansion in the field of technical education and increased number of new Graduate and Post Graduate Courses and as AICTE, New Delhi has notified major/relevant branches for major/core branch. It was under active consideration of the Government to publish consolidated resolution for the equivalent Graduate and Post Graduate Degree Courses in Engineering or Technology as requisite qualifications for appointment to various teaching posts in Government Polytechnics and Government Engineering Collages.
Resolution:-
After careful consideration all the previous Government Resolutions in this regards read from serial No.(2) to (10) above and AICTE, New Delhi Notification serial No.(11) above, the Government is pleased to decide equivalent Graduate and Post Graduate Degree courses in Engineering or Technology as requisite qualification for appointment to the post of Lecturers, Heads of Departments and Principals in Government Polytechnics and Assistant Professors, Associate Professors, Professors and Principals in Government Engineering Colleges, as shown in Annexure-A annexed to this resolution. Consequently, the existing Government Resolutions in this regard read from serial No.(2)to (10) above shall be treated as cancelled.
In the Annexure-A. column 3 shows basic degree branch (B.E/B.Tech) in Page 14 of 26 Downloaded on : Fri Feb 25 22:49:48 IST 2022 C/SCA/14434/2016 CAV JUDGMENT DATED: 25/02/2022 Engineering or Technology and Column 4 shows appropriate/relevant/equivalent degree branch (B.E/B.Tech) in Engineering or Technology for the post mentioned in column 2. While column 5 refers to the appropriate/relevant/ equivalent branch of M.E/M.Tech. degree course in Engineering or Technology.
It is also decided that, after publishing this resolution, any addition or deletion of branch from equivalency made by All India Council for Technical Education (AICTE), New Delhi by Gazette Notification shall be automatically appended to this resolution. Moreover, this resolution shall be applicable from the date of issue to all the forthcoming advertisement for recruitment purpose."
14. According to the aforesaid Government Resolution, Annexure-A thereto prescribes that Bachelor Degree in Mechatronics is a relevant qualification for the post of Assistant Professor, Mechanical Engineering.
15. In view of above clarification made by the Government, reliance was placed by the petitioner on the order of this Court passed in Special Civil Application No.12204/2015 and allied matters filed by similarly situated candidates claiming similar benefits except that their candidature was pursuant to different advertisements, wherein it is held as under:
"6. In such circumstances referred to above, I hold that the Government Page 15 of 26 Downloaded on : Fri Feb 25 22:49:48 IST 2022 C/SCA/14434/2016 CAV JUDGMENT DATED: 25/02/2022 Resolution dated 14th June, 2016 issued by the State Government should be made applicable in the cases of the writ applicants and if they are covered by the Government Resolution so far as the equivalency of various graduate and postgraduate degree courses is concerned, then they may be considered for being appointed on the posts in question. Of course, it goes without saying that they should also fulfill the other requisite requirements in accordance with the advertisement."
16. The above decision was confirmed by the Division Bench in Letters Patent Appeal No.212/2017 and other allied matters wherein the Division Bench held as under :
"9. We have heard learned counsel for both the sides and perused the material on record. When the captioned petitions were filed before the learned single Judge, the main issue related to equivalence of the Degrees. However, before the impugned order could be passed by the learned single Judge, the appellant State came up with the Government Resolution dated 14.06.2016, by which the issue of equivalence of Degrees came to be answered. Therefore, the only question which the learned single Judge was required to consider was whether the petitioners were entitled for the benefits of Government Resolution Page 16 of 26 Downloaded on : Fri Feb 25 22:49:48 IST 2022 C/SCA/14434/2016 CAV JUDGMENT DATED: 25/02/2022 dated 14.06.2016 or not. Before the learned single Judge, the respondent authority had taken the stand that the case of the petitioners could not be considered since they had applied pursuant to the Advertisements published in the years 2013 and 2014 whereas,the Government Resolution in question came into effect only on 14.06.2016.
10. It appears that in pursuance of the above Government Resolution, the respondent Commission issued a Circular on 17.06.2016 stating that the Government Resolution dated 14.06.2016 would be applicable to Advertisements published in the year 2015-2016, including those cases, where the recruitment process was still pending. Earlier, the petitioners were found to be ineligible for want of equivalent degree. However, after the Government Resolution dated 14.06.2016 was issued, the said dispute was resolved.
11. In the impugned order, the learned single Judge has recorded that the petitioners deserve to be granted benefits of the Government Resolution dated 14.06.2016 since they possessed the requisite qualification as per the Government Resolution dated 14.06.2016 and that, earlier, they were refused to be interviewed by the authority only on the ground Page 17 of 26 Downloaded on : Fri Feb 25 22:49:48 IST 2022 C/SCA/14434/2016 CAV JUDGMENT DATED: 25/02/2022 of not possessing the required qualification. Considering the peculiar facts and circumstances of the case, we are of the view that the learned single Judge has not committed any error while ordering retrospective application of the Government Resolution dated 14.06.2016 to the case of the petitioners. We are in complete agreement with the reasonings given by the learned single Judge in the impugned order and hence, find no reasons to entertain these appeals."
17. This Court (Coram: Hon'ble Mr. Justice N.V. Anjaria) in case of Roshniben Abherajbjai Chaudhari v. Gujarat Public Service Commission and other by judgment dated 30.11.2016 in Special Civil Application No.13175/2016 has also following the aforesaid decision of Special Civil Application No.12204/2015 has held as under :
"6.1 Even as equivalence is recognised which has lifted the debility with which the petitioner was attached for the purpose of her candidature, the interviews are still not announced and are awaited. Even then the petitioner is denied the benefit by not applying Resolution dated 14th June, 2016.
6.2 A situation akin in principle arose before the Apex Court in Punjab University Vs Subhash Chander [AIR 1984 SC 1415] wherein the student was Page 18 of 26 Downloaded on : Fri Feb 25 22:49:48 IST 2022 C/SCA/14434/2016 CAV JUDGMENT DATED: 25/02/2022 pursuing studies of M.B.B.S. Course since 1965 and appeared in the final M.B.B.S. Examination in the year 1974. In the meantime, in the year 1970, a Regulation was amended whereby the percentage of grace marks was reduced for M.B.B.S. candidates. It was held that it was the amended Regulation which would apply in case of the petitioner as the same was in force at the time when occasion arose for the petitioner to be treated for the purpose of giving grace marks. The Supreme Court held that new Regulation as amended would apply. In the same way, there is no reason as to why equivalence prescription which is introduced in the interregnum before the petitioner is to be considered for the process of selection for interview, that she should not be denied the candidature.
6.3 This situation is peculiar in itself and cannot be equated with a case were eligibility gets changed or that a candidate acquires eligibility or requisite qualification after the last date of advertisement. It is by the act of the respondents themselves that the degree which was held by the petitioner was accepted as equivalent in the meantime. In the facts and circumstances of the case, it cannot be said that petitioner was not holding the degree. The degree holding by the petitioner was in the same discipline, however its equivalence was not being accepted by the Public Service Commission when the Page 19 of 26 Downloaded on : Fri Feb 25 22:49:48 IST 2022 C/SCA/14434/2016 CAV JUDGMENT DATED: 25/02/2022 petitioner filled up the application form. The equivalence was recognised after filling up the form and before the candidature of the petitioner is further processed and interviews are hold. When the equivalence has now been accepted and the petitioner is to be the aspiring candidate on the basis of the recognised degree, she cannot be denied candidature. The petitioner could validly claim right to be considered and right to be called at the interview."
18. Reliance placed on behalf of the petitioner on the decision of the Apex Court in case of State of Andhra Pradesh vs. Shaikh Mahibulla Sharief (supra)is also relevant in facts of the case wherein the Apex Court after considering that the degree issued by Open University as equivalent to any other degree in respect of selection conducted in the year 2003 by the State of Andhra Pradesh, it was held that if Government had considered degree issued by Open University as equivalent to any other degree and permitted appointment of similarly situated persons, there is no reason why the respondent can be said to be ineligible. The Apex Court was considering A.P. Direct Recruitment for the post of Teachers (Scheme of Selection) Rules, 2012 wherein post of Language Pandit (Telugu) Grade II was to be filled in and the respondent applicant before the Apex Court Page 20 of 26 Downloaded on : Fri Feb 25 22:49:48 IST 2022 C/SCA/14434/2016 CAV JUDGMENT DATED: 25/02/2022 was selected for said post though he was possessing B.A. with History, Economics and Political Science and B.Ed. With Telugu and Social Studies as methodology subjects in the year 2005 and candidate also passed BA in Telugu literature as a single subject from Dr. B.R. Ambedkar Open University, Hyderabad and completed MA in Telugu in distance mode. The Apex court in such facts held as under :
"6. The appointment to the post of Language Pandit (Telugu) is governed by the Andhra Pradesh Direct Recruitment for the post of Teachers (Scheme of Selection) Rules, 2012. Rule 4(2) (iii)
(a) contemplates that the educational qualifications for appointment to the above post is a bachelor's degree in Telugu as main subject or one of the three equal optional subjects or bachelor's degree in oriental language in Telugu, (BOL) or its equivalent or a post graduate degree in Telugu and B.Ed.
with Telugu as methodology or Telugu Pandit Training or its equivalent. The Respondent passed BA with History, Economics and Political Science and holds a bachelor's degree in Telugu as a single subject from Dr. B.R. Ambedkar Open University. He also has B.Ed. with Telugu as methodology. The question that arises for consideration in this case is whether the said bachelor's degree in Telugu literature as a single subject from Dr. B.R. Ambedkar Open University is equivalent to a bachelor's degree Page 21 of 26 Downloaded on : Fri Feb 25 22:49:48 IST 2022 C/SCA/14434/2016 CAV JUDGMENT DATED: 25/02/2022 with Telugu from other Universities. Reliance is placed by Ms.Prerna Singh, counsel for the Appellant-State on memo No.18103/Ser.VI-1/2005 dated 03.10.2005 issued by the Government of Andhra Pradesh. The said memo pertains to a qualification issued with regard to transfer of teachers/officers and rationalisation of schools in respect of single subject certificate course of Dr. B.R. Ambedkar Open University. As per para 7 of the said memo, the certificate issued by Dr. B.R. Ambedkar Open University after completion of a single subject course was not a degree and that the single subject certificate holders of Dr. B.R. Ambedkar Open University were not eligible for promotion to the post of School Assistant. As the degree possessed by the Respondent was not equivalent to a degree from the other Universities as prescribed by the Rules, the Counsel for the Appellant-State submitted that the Respondent was not eligible for appointment to the post of Language Pandit (Telugu). Mr. V.V.S. Rao, learned Senior Counsel appearing for the Respondent referred to G.O.Rt.No.556, Education (SE.SER.VII) Department dated 04.10.2005 by which the Government permitted the Director, School Education, Andhra Pradesh, Hyderabad to appoint candidates who have a bachelor's degree and a B.Ed. degree and have acquired a single subject certificate in the relevant subject from Dr. B.R. Ambedkar Open University. The said orders were made applicable for Page 22 of 26 Downloaded on : Fri Feb 25 22:49:48 IST 2022 C/SCA/14434/2016 CAV JUDGMENT DATED: 25/02/2022 DSC-2003 candidates only. He also referred to a memo dated 24.05.2008 of the Government of Andhra Pradesh by which the Director of School Education, Hyderabad was permitted to appoint selected candidates of DSC-2003 who have acquired single subject (English) certificate for the post of School Assistant (English) as per their merit in the notified vacancies. The learned Senior Counsel submitted that the memo dated 03.10.2005 is not applicable to fresh appointments as it relates to rationalisation of schools and transfer of teachers.
7. We are of the opinion that the judgment of the High Court does not warrant interference. Admittedly, the Respondent possesses BA with History, Economics and Political Science and B.Ed. with Telugu and Social Studies as methodology subjects. He also possesses BA in Telugu literature as a single subject from Dr. B.R. Ambedkar Open University. The question that falls for our consideration is whether the qualification of BA Telugu literature as a single subject from Dr. B.R. Ambedkar Open University can be considered as equivalent to bachelor's degree with Telugu as main subject. We are in agreement with Mr. Rao that the memo dated 03.10.2005 is a clarification pertaining to transfer of teachers/officers and rationalisation of schools. The directions given by the Government to the Director of School Education which are referred to supra Page 23 of 26 Downloaded on : Fri Feb 25 22:49:48 IST 2022 C/SCA/14434/2016 CAV JUDGMENT DATED: 25/02/2022 would clearly show that the degree issued by Dr. B.R. Ambedkar Open University was considered to be equivalent to any other degree in respect of a selection conducted in the year 2003. If the Government has considered the degree issued by the Dr. B.R. Ambedkar Open University as equivalent to any other degree for DSC- 2003 and permitted appointment of similarly situated persons, there is no reason why the Respondent can be said to be ineligible. There is nothing in the Rules which makes a degree issued by Dr. B.R. Ambedkar Open University which is recognised by the University Grants Commission (UGC) from being considered as equivalent to any other degree."
19. Thus taking into consideration the above discussion, following aspects can be culled out :
i) that the petitioner was holding degree of B.E. (Mechatronics) which is equivalent to B.E. (Mechanical) and as per Government Resolution dated 6.7.2019, the same is required to be made applicable to the case of the petitioner and the petitioner is therefore, required to be appointed as Assistant Professor, Mechanical Engineering, Class-II.
ii) that similarly situated persons are Page 24 of 26 Downloaded on : Fri Feb 25 22:49:48 IST 2022 C/SCA/14434/2016 CAV JUDGMENT DATED: 25/02/2022 appointed by the State Government in the previous recruitment and therefore, the petitioner cannot be denied the appointment.
20. In view of the foregoing reasons, the decision reflected in the impugned communication dated 19.7.2016 issued by the Education department of the State of Gujarat cannot be sustained and is hereby quashed and set aside. As a result, the respondents are directed to appoint the petitioner as Assistant Professor, Mechanical Engineering, Class-II in any Government Engineering college pursuant to his selection by GPSC considering his qualification of B.E. (Mechatronics) equivalent to that of B.E. (Mechanical) as per Government Resolution dated 6.7.2019.
21. As the other candidates who were selected by GPSC are appointed by the State Government on 8.6.2016, the benefit of notional seniority is also required to be granted to the petitioner with effect from 8.6.2016 and is deemed to have been appointed with effect from 8.6.2016. The respondents are directed to issue the appointment order to the petitioner with effect from 8.6.2016 with a clarification that the period from 8.6.2016 till the petitioner assumes the charge as Assistant Professor, Mechanical Page 25 of 26 Downloaded on : Fri Feb 25 22:49:48 IST 2022 C/SCA/14434/2016 CAV JUDGMENT DATED: 25/02/2022 Engineer, Class-II in any other Government college shall be treated as notional and the petitioner shall not be entitled to any salary for such period but the said period shall be considered for the purpose of seniority of the petitioner only. Such exercise shall be completed within eight weeks from the date of receipt of copy of this judgment.
22. Petition is accordingly partly allowed. Rule is made absolute to the aforesaid extent. No order as to costs.
(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 26 of 26 Downloaded on : Fri Feb 25 22:49:48 IST 2022