Gujarat High Court
Rami Gaurangkumar Yagneshkumar vs State Of Gujarat on 30 June, 2021
Author: B.N. Karia
Bench: Vineet Kothari, B.N. Karia
C/LPA/522/2013 JUDGMENT DATED: 30/06/2021
RAMI GAURANGKUMAR YAGNESHKUMAR Versus STATE OF GUJARAT & 3 other(s)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 522 of 2013
In R/SPECIAL CIVIL APPLICATION NO. 15742 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MR. JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RAMI GAURANGKUMAR YAGNESHKUMAR
Versus
(1) STATE OF GUJARAT
(2) THE JOINT EDUCATION OFFICER
(3) NORTH GUJARAT EDUCATION TRUST
(4) THE PRINCIPAL, SMT. TSR COMMERCE COLLEGE
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Appearance:
MR MEHUL S. SHAH, SR. COUNSEL WITH MR VISHAL C MEHTA(6152) for
the Appellant(s) No. 1
MR KRUTIK PARIKH, AGP for the Respondent(s) No. 1
MR. NIRAV D TRIVEDI(6311) for the Respondent(s) No. 3,4
NOTICE SERVED(4) for the Respondent(s) No. 2
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CORAM:HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MR. JUSTICE B.N. KARIA
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C/LPA/522/2013 JUDGMENT DATED: 30/06/2021
RAMI GAURANGKUMAR YAGNESHKUMAR Versus STATE OF GUJARAT & 3 other(s)
Date : 30/06/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE B.N. KARIA)
1. This Letters Patent Appeal is directed against the Judgment and Order dated 30.01.2013 passed in Special Civil Application No. 15742 of 2012-Rami Gaurangkumar Yagneshkumar v. State of Gujarat by the learned Single Judge.
2. The factual matrix involved in the present Appeal can briefly be stated as under:
2.1 On 24.12.2009, an advertisement for the post of Adhyapak Sahayak was published in the daily newspaper Sandesh, Patan and in Divya Bhaskar newspaper in other Districts as well as by North Gujarat Education Society, Mumbai in pursuance of NOC granted by Higher Education Commissioner. That, North Gujarat Education Society was running two Colleges, Grant-in-Aid, namely (1) Sheth M. N. Science College, Patan and (2) Smt. T.S. R. Commerce College, Patan for the purpose of P.T.I. Adhyapak Sahayak in both the Colleges, the advertisement was published mentioning that the candidate must clear NET/SLAT or Ph.D. within 5 years from the date of selection. That, the original Petitioner had applied for the post of P.T.I. Adhyapak Sahayak in pursuance of the said advertisement, as he was possessing qualification of Master of Physical Education and he had already applied/registered for Ph.D. Page 2 of 17 Downloaded on : Sat Jan 15 09:35:32 IST 2022 C/LPA/522/2013 JUDGMENT DATED: 30/06/2021 RAMI GAURANGKUMAR YAGNESHKUMAR Versus STATE OF GUJARAT & 3 other(s) at the relevant point of time. That, on 18.09.2010, the original Petitioner had completed his Ph.D and accordingly he informed the original respondent No.4-College by Regd. Post A.D and sent the certificate of Ph.D. That, interview for the post of P.T.I. Adhyapak Sahayak was held on 11th March, 2011, wherein, other two persons namely Sagar B.Desai and Rameshbahi Chaudhari were called for interview. That, at the time of interview, one representative of the Government, two expert members and two representative of Chancellor, in all total five persons were present. After, completing the procedure of interview, original petitioner was selected unanimously by the Selection Committee for the post subject to approval of the Government. A proposal was sent to the Government on 15th March, 2011. Thereafter, two persons namely Sagar B.Desai and Rameshbahi Chaudhari objected in writing on 11.03.2011 to the Government against the selection of the original petitioner made by the Committee. In pursuance of the said objections, Higher Education Commissioner issued notice on 12.05.2011 to the original Petitioner. Thereafter, on 17.5.2011, at the time of hearing, original Petitioner submitted his written reply stating that he has already completed Ph.D degree before the date of interview, and therefore, he had already acquired qualification for the purpose of selection as per the condition of the advertisement dated 24.12.2009 and at the time Page 3 of 17 Downloaded on : Sat Jan 15 09:35:32 IST 2022 C/LPA/522/2013 JUDGMENT DATED: 30/06/2021 RAMI GAURANGKUMAR YAGNESHKUMAR Versus STATE OF GUJARAT & 3 other(s) of interview, no one had raised any objections regarding his qualification for the said interview. Without considering the submissions of the original petitioner and the conditions mentioned in the advertisement dated 24.12.2009, Higher Education Commissioner cancelled and set aside the selection process of the original petitioner and also cancelled the N.O.C granted to the college by virtue of order dated 12.9.2011. That, original petitioner was granted higher grades by the representative of Government.
That, the order dated 12.9.2011 passed by the Higher Education Commissioner was challenged by the original petitioner by way of filing Special Civil Application No. 16122 of 2011 wherein, this Court vide order dated 2nd July, 2012, set aside the impugned order dated 12.9.2011 and remanded the matter back directing the authorities to reconsider the matter as the said order was non-speaking. That, thereafter, representation was made by the original petitioner on 04.08.2012 stating that as per the advertisement dated 24.12.2009, he was eligible for appointment and after considering the said representation of the original petitioner and other relevant documents the authority passed an order dated 31st August, 2012 issued on 5th September, 2012 bearing No. KVT/V-4/12/13/5345.27 on the basis of the common order passed in Special Civil Application No. 24358 of 2006 to Special Civil Application No. 24372 of 2006 dated 15.1.2008, Page 4 of 17 Downloaded on : Sat Jan 15 09:35:32 IST 2022 C/LPA/522/2013 JUDGMENT DATED: 30/06/2021 RAMI GAURANGKUMAR YAGNESHKUMAR Versus STATE OF GUJARAT & 3 other(s) in which , the Resolution dated 25.08.2005 was challenged. Thereafter, the original petitioner challenged the order dated 31.8.2012 issued on 5.9.2012 before this Court in Special Civil Application No. 15742 of 2012, which was dismissed by this Court vide order dated 30th January, 2013. Hence, this Letters Patent Appeal is preferred by the original Petitioner.
3. Heard learned Senior Counsel Mr. Mehul S. Shah with Mr. Vishal C. Mehta, learned Advocate appearing for the Appellant and learned Assistant Government Pleader Mr. Krutik Parikh appearing for the Respondent No.1.
4. Learned Counsel for the Appellant has invited the attention of this Court towards the advertisement dated 24.12.2009 and argued that it is clear that the person who does not possess qualification of NET/SLAT or Ph.D. as required under the UGC norms and also applied for the post in question as provided in the advertisement within five years from the date of appointment, he can acquire NET/SLAT or Ph.D. and his case can be considered for appointment on regular basis. It is further submitted that the a person who does not hold NET/SLAT or Ph.D. not only can apply and participate for selection but can get selected on merits for which he will get time of five years to obtain qualification of NET/SLAT or Ph.D. It is further submitted that in the present case, the Appellant had applied in Page 5 of 17 Downloaded on : Sat Jan 15 09:35:32 IST 2022 C/LPA/522/2013 JUDGMENT DATED: 30/06/2021 RAMI GAURANGKUMAR YAGNESHKUMAR Versus STATE OF GUJARAT & 3 other(s) response to the advertisement dated 24.12.2009 and was able to get his Ph.D. degree on the date of interview which was held on 11.03.2011. That, interview committee rightly considered the qualification of the Appellant i.e. Ph.D. degree and did give due credit for the Ph.D as he was the only candidate selected. It is further submitted that other two unsuccessful candidates, who objected the selection of the candidate on the ground that the Selection Committee could not have given credit / weightage for the degree of Ph.D which the Appellant obtained after the date of advertisement but before the date of interview was not legal. That, surprisingly the authorities found such objections acceptable and therefore, the order was passed on 12th September, 2011 quashing the selection which was challenged before this Court by way of Special Civil Application No. 16122 of 2011 wherein, the order dated 12th September, 2011 was quashed as non-speaking order and the authorities were directed to give an opportunity to pass a speaking order. That, however, the authorities after considering the facts of the case, passed an order dated 31.8.2012/05.09.2012 with un-understandable reasons quashing the selection of original petitioner. It is submitted that the order passed by the learned Single Judge in Special Civil Application No. 15742 of 2012 dated 30.01.2013 is clearly erroneous and against the record and proceedings. That, the Appellant was duly qualified Page 6 of 17 Downloaded on : Sat Jan 15 09:35:32 IST 2022 C/LPA/522/2013 JUDGMENT DATED: 30/06/2021 RAMI GAURANGKUMAR YAGNESHKUMAR Versus STATE OF GUJARAT & 3 other(s) having obtained Ph.D degree on the date of interview and rightly selected by the Interview Committee, however, learned Single Judge has not considered the said aspects. That, learned Single Judge ought to have considered that the advertisement in question itself allows five years period to the candidate to pass Ph.D examination and accordingly in the interview except the Appellant, no one else was found fit to be appointed by the Committee. Learned Single Judge was pleased to hold that in the Interview Committee the representative of the State Government was also present and upon due verification by him, Appellant was duly selected. That, learned Single Judge was also pleased to hold that even the letter written by the Respondent No.2 (Annexure "H") clarifying the stand of the State Government of allowing the candidate to obtain Ph.D degree within five years of selection and it is not open for the State to go behind the said clarification and interpretation of the Government Resolution and Regulations while passing the impugned order made by the Respondent No.2. That, findings of learned Single Judge that the advertisement itself was not in-consonance with the relevant conditions in the order is completely made on wrong aspect as well as finding that candidate has to fulfill the qualification and eligibility criteria on the date he is offering his candidature and the Appellant/Petitioner did not have any qualification which entitled Page 7 of 17 Downloaded on : Sat Jan 15 09:35:32 IST 2022 C/LPA/522/2013 JUDGMENT DATED: 30/06/2021 RAMI GAURANGKUMAR YAGNESHKUMAR Versus STATE OF GUJARAT & 3 other(s) him to be interviewed. That, learned Single Judge has wrongly made presumption against the Appellant that the Circulars and Resolutions are not in favour of the Appellant. It is further erred by the learned Single Judge that the Appellant did not have the qualification prescribed by the U.G.C. or by the State and therefore, Appellant has no right to contend that subsequently obtained qualifications in any way save his selection. As per the submissions made by learned Advocate for the Appellant the impugned judgment and order are erroneous in law and facts and hence, it was requested by learned Advocate for the Appellant to allow the present Letters Patent Appeal by quashing and setting aside the impugned order dated 30th January, 2013 passed by the learned Single Judge in Special Civil Application No. 15742 of 2012.
5. Per contra, learned Assistant Government Pleader Mr. Krutik Parikh for the respondent No.1-State has strongly objected the submissions made by learned Counsel for the Appellant and submitted that reasoned and detailed order has been passed by the learned Single Judge rejecting the relief as prayed by the Appellant/Original Petitioner, therefore, no interference would be required by this court in the present Letters Patent Appeal. It is further argued by learned AGP that learned Single Judge has rightly considered that as per the advertisement dated 24th December 2009, Page 8 of 17 Downloaded on : Sat Jan 15 09:35:32 IST 2022 C/LPA/522/2013 JUDGMENT DATED: 30/06/2021 RAMI GAURANGKUMAR YAGNESHKUMAR Versus STATE OF GUJARAT & 3 other(s) the minimum qualification prescribed was having passed NET/SLAT Examination or a degree in Ph.D. That, the advertisement itself is clear as candidate is required to have the prescribed qualification as on date of application as per the Government Resolution dated 29.04.1999 and 20.04.2000 as well as UGC Guidelines, New Delhi and Rules of Hemchandra North Gujarat University, Patan That, the learned Single Judge has rightly observed in Para 7(2) of the Order dated 30.01.2013 that as the Government Resolutions as referred above were not supporting the case of the Appellant, and therefore, same were never produced by the Appellant. That, the Appellant was not possessing the prescribed qualification having passed NET/SLAT Examination or a degree in Ph.D. That, the Appellant himself has admitted that he had acquired Ph.D. degree on 18.09.2010 and hence, he was not possessing the prescribed qualification as on the date of the application. It is further submitted that other two candidates namely Sagarbhai Desai and Rameshbhai Chaudhary, who were present in the Interview, objected on 11th March 2011 that the Appellant cannot be considered for selection because, he was not possessing the required qualification, but he had acquired the same much after from the date of advertisement. That, the said objections were forwarded to the Respondent No.2 on 13.03.2011 by the Government Representative. That, the Inquiry was Page 9 of 17 Downloaded on : Sat Jan 15 09:35:32 IST 2022 C/LPA/522/2013 JUDGMENT DATED: 30/06/2021 RAMI GAURANGKUMAR YAGNESHKUMAR Versus STATE OF GUJARAT & 3 other(s) held by the Respondent no.2 and after hearing the Appellant 17.05.2011, an order dated 12.09.2011 was passed rejecting the appointment of the Appellant. That, the learned Single Judge has rightly observed that it is not the case of the Appellant that he was possessing required qualification as on the date of the Application. That, other two candidates, who remained present in the Interview, were eligible as on date of the Application as they were holding requisite qualification as prescribed, and therefore, once if any candidates are available having requisite qualifications as mentioned in the advertisement then it cannot be said that just because on the date of interview, the Appellant was holding requisite qualifications, he was eligible for the post. That, the contention of the Appellant that qualification was not a necessary condition is not correct understanding. That, no patent error is committed by the learned Single Judge in dismissing the Special Civil Application No. 15742 of 2012 filed by the Original Petitioner/Appellant. Hence, it was requested by learned AGP for the Respondent No.1-State to dismiss present Appeal.
6. Having heard learned Counsel for the Appellant and learned AGP for the Respondent No.1-State and having gone through the documents produced on record, it appears that in connection with the advertisement dated 24th December 2009 for the post of Adhyapak Page 10 of 17 Downloaded on : Sat Jan 15 09:35:32 IST 2022 C/LPA/522/2013 JUDGMENT DATED: 30/06/2021 RAMI GAURANGKUMAR YAGNESHKUMAR Versus STATE OF GUJARAT & 3 other(s) Sahayak published in the Sandesh, Patan and in Divya Bhaskar newspaper in other Districts as well as by North Gujarat Education Society, Mumbai in pursuance of NOC granted by Higher Education Commissioner, as vacancies were available in two Colleges, Grant-in- Aid, namely (1) Sheth M. N. Science College, Patan and (2) Smt. T.S. R. Commerce College, Patan run by North Gujarat Education Society for the purpose of P.T.I. Adhyapak Sahayak in both the Colleges, Petitioner applied for the post in time. Advertisement was mentioning that the candidate must clear NET/SLAT or Ph.D. within 5 years from the date of selection. It further appears that the Appellant applied for the post of P.T.I. Adhyapak Sahayak in pursuance of the said advertisement, as he was possessing qualification of Master of Physical Education and he had already applied/registered for Ph.D. at the relevant point of time. It also appears from the record that on 18.09.2010, the Appellant had completed his Ph.D and he accordingly informed the original respondent No.4-College by Regd. Post A.D and sent the certificate of Ph.D. These facts were never denied by the respondent authorities. Apart from the present Appellant, two other persons namely Sagar B.Desai and Rameshbahi Chaudhari were also called for the interview on the said post on 11.03.2011. It is not in dispute that at the time of interview, one Representative of the Government, Page 11 of 17 Downloaded on : Sat Jan 15 09:35:32 IST 2022 C/LPA/522/2013 JUDGMENT DATED: 30/06/2021 RAMI GAURANGKUMAR YAGNESHKUMAR Versus STATE OF GUJARAT & 3 other(s) two Expert Members and Two representatives of Chancellor, in all total Five persons were present. It is not in dispute that after completing the procedure of Interview, Appellant was selected unanimously ie.,all the members present in the interview in the said case, the selection of the Appellant was subject to approval of the Government. Accordingly, proposal was sent to the Government on 15th March, 2011. The other two candidates namely S. B. Desai and R.B. Chaudhari submitted their objections dated 11.3.2011 to the Government and Representative of the Government tendered his objection dated 13.03.2011 against the selection of Appellant by the Committee. Thereafter, the Higher Education Officer issued notice dated 12.5.2011 to the Appellant in pursuance of the said objections. That, present Appellant was remained present on 17th May 2011 and at the time of hearing, he submitted his written reply stating that he has already completed Ph.D. Degree before the date of interview and acquired qualification for the purpose of selection as per the condition of the advertisement dated 24.12.2009.
7. It also appears from the record that at the time of interview, no one had raised any objections in respect of the qualifications of the present Appellant in the said Interview. The Higher Education Commissioner, without considering the submissions of the present Appellant and the conditioned mentioned in the advertisement dated Page 12 of 17 Downloaded on : Sat Jan 15 09:35:32 IST 2022 C/LPA/522/2013 JUDGMENT DATED: 30/06/2021 RAMI GAURANGKUMAR YAGNESHKUMAR Versus STATE OF GUJARAT & 3 other(s) 24.12.2009, cancelled and set aside the Interview process of the Appellant as well as cancelled the N.O.C granted to the college by virtue of order dated 12.9.2011. It further appears that the High Education Officer, on 12.10.2009, issued a letter to the Principal, Smt. T.S.R. Commerce College, Patan wherein he had clearly mentioned in condition No. 37 that if any candidate acquired a qualification of NET/SLAT or Ph.D. at the time of appointment, they would be eligible for Higher Scale of Rs. 7500/-. It appears that he clarified that the passing of Ph.D. etc, was not condition precedent for appointment of Adhyapak Sahayak. It appears that the Appellant was granted Higher Grades by the Representative of Government after his Interview. It appears that order dated 12.09.2011 was challenged by the present Appellant before this Court by filing Special Civil Application No. 16122 of 2011 wherein, this Court vide order dated 2nd July, 2012, set aside the impugned order dated 12.9.2011 and remanded back the matter directing the authorities to reconsider the matter as the said order was non-speaking. It appears from the record that the Appellant made his representation dated 04.08.2012 requesting that as per the advertisement, he was eligible for appointment and after considering the said representation of the Appellant and other relevant documents, the authority passed an order dated 31st August, 2012 which was issued on 5th September, Page 13 of 17 Downloaded on : Sat Jan 15 09:35:32 IST 2022 C/LPA/522/2013 JUDGMENT DATED: 30/06/2021 RAMI GAURANGKUMAR YAGNESHKUMAR Versus STATE OF GUJARAT & 3 other(s) 2012 bearing No. KVT/V-4/12/13/5345.27 on the basis of the common order passed in Special Civil Application No. 24358 of 2006 to Special Civil Application No. 24372 of 2006 dated 15.1.2008, in which, the resolution dated 25.8.2005 was challenged. While referring such judgment, it was clarified that one of the condition in the said government Resolution dated 25.08.2005 issued by Education Department was that on appointment of the "Adhyapak Sahayak"
would have to pass NET/SLAT or Ph.D. within a period of 5 years. It appears that the U.G.C. has formulated regulation namely UGC Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education 2010. At Clause 3.3.1 of the Regulations provides that "NET/SLAT/ SET shall remain the minimum eligibility condition for recruitment and appointment of Assistant Professors in Universities/Colleges/ Institutions. If we consider the advertisement dated 24.12.2009, it clearly provides that the candidate could acquire the NET/SLAT or Ph.D. Degree within 5 years of selection and it would not compulsory to have a Degree of NET/SLAT or Ph.D. at the time of advertisement. It further appears that the Committee had unanimously selected the present Appellant in the interview and at the time of interview, the representative of the Government was also Page 14 of 17 Downloaded on : Sat Jan 15 09:35:32 IST 2022 C/LPA/522/2013 JUDGMENT DATED: 30/06/2021 RAMI GAURANGKUMAR YAGNESHKUMAR Versus STATE OF GUJARAT & 3 other(s) present. No objections were raised by the said representative of the Government regarding qualification of the Appellant at the time of Interview. Other two candidates namely S.B. Desai and R. B. Chaudhari had also never raised any objection regarding qualification of the present Appellant and Degree of Ph.D. at the time of Interview. On the contrary, only when these two candidates were not selected by the Committee, a proposal of the Appellant only was sent to the Government for the approval. Thereafter, written objections were tendered before the concerned authority, which was nothing but malafide. The present Appellant was having a Degree of Ph.D. as on the date of interview which was held in the month of March 2011. The concerned decision taking Authority has power to appoint the candidate for the post of Adhyapak Sahayak by relaxing the condition of NET/SLAT or Ph.D. as it was mentioned in the advertisement dated 24.12.2009. It also appears that the proposal of selection of the Appellant was sent for consideration of the concerned Authority. The impugned order dated 31.08.2012 issued on
05.09.2012 bearing No. KVT/V-4/12-13/5345.27 by original Respondent no.2 confirming the earlier order dated 12.09.2011 is against the law of equity and principle of natural justice.
8. Learned Counsel appearing for the Appellant, during the course of his arguments, has produced a zoerx copy of the Page 15 of 17 Downloaded on : Sat Jan 15 09:35:32 IST 2022 C/LPA/522/2013 JUDGMENT DATED: 30/06/2021 RAMI GAURANGKUMAR YAGNESHKUMAR Versus STATE OF GUJARAT & 3 other(s) Government Resolution dated 22nd February 2021 issued by the Education Department of the State Government and while considering the said Government Resolution, Condition No.3 speaks that Adhyapak Sahayaks, who were not having qualification of NET/ SLAT or Degree of Ph.D. within stipulated period, they were required to be terminated from the services after completion of their 5 years tenure but with a view to clear the examination, as prescribed for the post of Adhyapak Sahayak and give one opportunity to candidates, it was decided that such Adhyapak Sahayak should be continued in the amended fixed pay. Such candidates were permitted to obtain the requisite qualification as mentioned in condition no.3 in the resolution quoted at Sr. No.1 of this Resolution since this Resolution was issued on 22.02.2021. Permission was granted in favour of the Adhyapak Sahayak, who was served in the Department, to clear their examination of NET/SLAT as well as degree of Ph.D. within further period of one year.
9. Considering the factual aspect as well as circumstances arose from the record, we are of the opinion that the Appellant was the candidate, who had fulfilled the qualification and eligibility criteria on the date, he was offered his candidature in the advertisement itself. Candidates were were allowed to pass NET/SLAT of Ph.D. examination after selection within a period of Five years. In the Page 16 of 17 Downloaded on : Sat Jan 15 09:35:32 IST 2022 C/LPA/522/2013 JUDGMENT DATED: 30/06/2021 RAMI GAURANGKUMAR YAGNESHKUMAR Versus STATE OF GUJARAT & 3 other(s) Interview Committee also, representative of the State Government was present and upon due verification, Appellant was duly selected. It was not open for the State to go behind the clarification and interpretation of the Government Resolution while passing order passed by the original Respondent No.2. Admittedly, the Appellant had fulfilled qualification and eligibility criteria on the date, he offered his candidature. Findings of the learned Single Judge, with due respect, that the Appellant had no right to contend that subsequently obtained qualification in any way save his selection, was contrary to law as well as record.
10. Considering overall facts of the case and record, we are of the opinion that the Judgment and Order passed by the learned Single Judge in Special Civil Application No. 15742 of 2012 on 30.01.2013 is required to be quashed and set aside.
Accordingly, present Letters Patent Appeal is hereby allowed by quashing and setting aside the impugned order dated 30.01.2013 passed in Special Civil Application No. 15742 of 2012. No costs.
(DR. VINEET KOTHARI,J) (B.N. KARIA, J) K. S. DARJI Page 17 of 17 Downloaded on : Sat Jan 15 09:35:32 IST 2022