Gujarat High Court
Gnaneshwary D Shah vs State Of Gujarat & 3 on 1 December, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/9250/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9250 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or
NO
any order made thereunder ?
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GNANESHWARY D SHAH....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR NANDISH CHUDGAR, ADVOCATE FOR NANAVATI ASSOCIATES, ADVOCATE for
the Petitioner(s) No. 1
MS SHRUTI PATHAK, AGP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1 - 3
NOTICE SERVED BY DS for the Respondent(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 01/12/2015
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HC-NIC Page 1 of 27 Created On Wed Dec 02 01:58:32 IST 2015
C/SCA/9250/2013 CAV JUDGMENT
CAV JUDGMENT
1 By this writ application under Article 226 of the Constitution of India, the petitioner, a Lecturer in the Department of Plastic Engineering, Government Polytechnic, Ahmedabad, has prayed for the following reliefs:
"8 A) That the Honourable Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction commanding the respondents to fill up the post of the Head of Department, Plastic Engineering, Government Polytechnic, Ahmedabad, by promotion, to consider the petitioner for promotion to the said post and to appoint the petitioner as Head of Department, Department of Plastic Engineering, Government Polytechnic, Ahmedabad with the deemed date of 09.08.98.
B) That pending the hearing and final disposal of this petition, the Honourable Court be pleased to direct the respondents to forthwith fill up the post of Head of Departments, Department of Plastic Engineering, Government Polytechnic, Ahmedabad, and to consider the petitioner for appointment to the said post and be pleased to restrain the respondents from filling up the posts of Heads of any other Department and Principal's post of Government Polytechnics, in the meanwhile.
C) For costs;
D) For such other and further reliefs as the Honourable Court may
deem fit in the facts and circumstances of the case."
2 The case of the petitioner may be summarized as under:
2.1 The petitioner is a Lecturer in the Department of Plastic Engineering. The petitioner was appointed as such with the Government Polytechnic, Ahmedabad on 09.08.1990 on adhoc basis. The petitioner was appointed as a direct recruit Lecturer, Department of Plastic Engineering, Government Polytechnic, Ahmedabad on 22.11.1993. The petitioner has been teaching since then. The petitioner attained the Page 2 of 27 HC-NIC Page 2 of 27 Created On Wed Dec 02 01:58:32 IST 2015 C/SCA/9250/2013 CAV JUDGMENT degree of the M.E. (Polymer Technology) from the M.S. University, Vadodara, with First Class on 17.08.2002. The petitioner was awarded Ph.D. (Chemical Engineering) by the M.S. University, Vadodara on 27.12.2008. The petitioner has published several papers in the National and International Journals, has been reviewing papers for Journal Applied Polymer Science and has also been a member of various Academic Associations, Committees, Forms, etc. The work profile of the petitioner is separately produced at AnnexureA to this petition. The petitioner had sought permission from the government for pursuing both, M.E. and Ph.D. degrees and that the petitioner was extended full support and encouragement by the government to pursue such higher studies so that the Government and students could also benefit by employing better qualified professionals at higher positions. The same is evidence by the fact that she was paid the regular salary while pursuing the said degrees.
2.2 The petitioner is the only Lecturer with the Government Polytechnics having qualifications of B.E. (Plastic Technology) First Class Distinction (University First), M.E. (Polymer Technology) First Class, Ph.D. (Chemical Engineering) and teaching experience of about 23 years. The petitioner has discharged her duties as the Incharge Head of Department of the Plastic Engineering, Government Polytechnic, Ahmedabad, for the following periods:
07.12.1999 to 08.12.1999 15.01.2000 to 19.04.2000 01.05.2002 to 28.10.2004 05.04.2005 to 22.12.2012 2.3 The petitioner also earned Charge allowance for the periods; 15.01.2000 to 19.04.2000 and 05.04.2005 to 04.04.2006. The Charge Page 3 of 27 HC-NIC Page 3 of 27 Created On Wed Dec 02 01:58:32 IST 2015 C/SCA/9250/2013 CAV JUDGMENT allowance from 01.05.2002 to 28.10.2004 and 05.04.2006 to 22.12.2012 is due to be paid. The petitioner also has been drawing salary of the scale paid to a Head of Department since 22.11.2004. It is to be noted that the Charge allowance is an additional cost incurred by the respondents and that the respondents would not have had to pay such allowance over and above the regular salary of a Head of Department paid to the petitioner, if the petitioner had been promoted on time. The actions of the respondents, have made the fact of petitioner being the most suitable candidate for promotion and deliberately not elevating her axiomatic, by paying additional allowances to avail her services as an Incharge when the same could have been easily avoided by promoting the petitioner as Head of Department.
2.4 The post of promotion for a Lecturer is that of the Head of Department. The post of the Head of Department is filled by promotion or direct recruit as per the policy laid down in the Notification dated 11.08.1998 issued by the Education Department, Government of Gujarat, Gandhinagar. The appointment as Head of Department by direct selection and by promotion is in the ratio of 1:1. Upto 1990, there was only one post of Head of Department at Government Polytechnic, Ahmedabad. In 1991 plastic engineering department was started at Government Polytechnic, Valsad so one Head of Department post was created and again in 1994 Government Polytechnic at Chhota Udepur creating another post of Head of Department. Thus, when the petitioner became eligible as Head of Department there were three posts of Head of Department, Plastic Engineering.
2.5 Upto 1993, as per 1:1, one direct recruit and one promotee post was filled at Government Polytechnic Ahmedabad. Out of the two new created posts at Government Polytechnic, Valsad and Government Page 4 of 27 HC-NIC Page 4 of 27 Created On Wed Dec 02 01:58:32 IST 2015 C/SCA/9250/2013 CAV JUDGMENT Polytechnic, Chhota Udepur, one was to be filled by direct recruitment and one by promotion. The post of Head of Department at Government Polytechnic, Ahmedabad was vacant in December, 1999 due to transfer.
The petitioner was given charge of that post. At that very same time, the petitioner could have been promoted because the post was vacant, there was a point of promotion and the petitioner was eligible. So far as the Head of Department, Plastic Engineering, is concerned, the first Head of Department, Shri B.C. Panchal was appointed as a direct recruit on 27.05.1982. The second Head of Department, Shri R.J. Patel who was appointed by promotion on 03.05.1993. The third Head of Department, Shri Rajarajan M. was appointed as a direct recruit on 29/10/2004. Shri Rajarajan M. resigned on 05.05.2005. The petitioner has a teaching experience of 23 years as against the requirement of teaching experience of minimum 8 years.
2.6 The petitioner is also the senior most lecturer in the Department of Plastic Engineering. The seniority list of the Lecturers in the Department of Plastic Engineering, Government Polytechnic of Gujarat State, published as on 01.01.2007. The fact that the petitioner is the senior most lecturer is also admitted in the letter dated 24.11.2010 addressed by the Deputy Director, Commissionerate of Technical Education to the respondent No.3 with respect to the representation made by Shri D.M. Makwana and Shri B.J. Panchal for promotion as Head of Department, Plastic Engineering.
2.7 When the petitioner became qualified for promotion as the Head of Department in 1999, there were three posts of the Head of Department in the Department of Plastic Engineering in the Government Polytechnic, out of which, two posts were vacant. The third post became vacant in 2001 due to superannuation of the concerned. All the three Page 5 of 27 HC-NIC Page 5 of 27 Created On Wed Dec 02 01:58:32 IST 2015 C/SCA/9250/2013 CAV JUDGMENT posts have remained vacant till today, except the post of Head of Department at Ahmedabad for the period from 29.10.2004 to 05.05.2005 when Shri Raja Rajan M., a direct recruit held the post. That Head of Department of Plastic Engineering, Government Polytechnic, Ahmedabad is a permanent position and not to be kept vacant is apparent from the fact that the petitioner has been paid charge allowance for all these years.
2.8 The petitioner has been discharging her duties as Incharge Head of Department from 1999 which includes a continuous period of almost 7 and a half years from 05.04.2005 to 22.12.2012. Since the post is vacant and the petitioner is qualified in every respect for being appointed as Head of Department which she even otherwise has been as Incharge, there is no reason for not appointing the petitioner as Head of Department by promotion. According to circular dated 09.04.1997, it provides for reservation of 30% seats for women.
2.9 The petitioner has addressed number of letters to the respondents requesting that she may be promoted as Head of Department.
2.10 On 12.06.2003, the Joint Director, Commissionerate of Technical Education informed the Principal, Government Polytechnic, Ahmedabad that it was not possible to promote the petitioner as Head of Department at present.
2.11 No reasons were assigned in the said letter. There has not been any response to the other representation made by the petitioner.
2.12 While no attempt was made for filling up the post of Head of Department in the Department of Plastic Engineering, so far as other Page 6 of 27 HC-NIC Page 6 of 27 Created On Wed Dec 02 01:58:32 IST 2015 C/SCA/9250/2013 CAV JUDGMENT departments of Government Polytechnic are concerned, such exercises have been undertaken at regular intervals. The procedure for promotion for the post of Head of Department was undertaken in the Government Polytechnic in the years 1998, 1999, 2003, 2007, 2008, 2009 and 2010. While the posts of Head of Department at the department of Plastic Engineering remained vacant, at the same time, the respondents have promoted Mr. R.R. Machighanti (Instrumentation and Control) and Mr. D.M. Pujara (Computer Engineering), both of which are only diploma holders, in contravention of Rule 4 of the Notification governing the policy of recruitment and promotion by the Education Department, Government of Gujarat, Gandhinagar dated 11.08.1998, as Head of Department.
2.13 The next post of promotion for the Head of Department is that of the Principal of a Government Polytechnic. The post of Principal is filled in by promotion or by direct selection. So far as the appointment by promotion is concerned, such appointment is made by promotion of a person of proved merit and efficiency from amongst the persons who have not worked for less than 5 years in the cadre of Head of Department, Gujarat Education Service, ClassI in appropriate branch of Engineering and Technology. Promotion to the post of Principal is governed by the Notification dated 30.04.1998 issued by the Education Department, Government of Gujarat, Gandhinagar.
2.14 That most of the Heads of Department who are presently serving have been appointed after 1999. Since promotion exercise is not undertaken in the Department of Plastic Engineering as against the other departments, it has resulted in a very discriminatory situation whereby the chances of the petitioner of undertaking the work of higher responsibilities and interest are seriously prejudiced and diminished.
Page 7 of 27HC-NIC Page 7 of 27 Created On Wed Dec 02 01:58:32 IST 2015 C/SCA/9250/2013 CAV JUDGMENT Had the petitioner been promoted at an appropriate time, the petitioner would have become eligible for appearing in the GPSC exam held in 2008 for direct selection to the post of Principal, Government Polytechnic. The action/inaction of the respondent State has thus jeopardized the chances of growth in the petitioner's career not just by promotion but has also eliminated the chances of direct recruitment to the Principal's post. The petitioner, in the circumstances, is required to be given deemed promotion with effect from 1998. The resolution dated 31.03.1989 issued by general administration department, Government of Gujarat on preparing seniority list also refers to deemed date of promotion.
2.15 In the entire Government Polytechnic, there are only three persons with Ph.D. degree in Engineering which includes the petitioner. That the other two Ph.Ds., namely, Dr. B.B. Soneji and Dr. P.A. Raval are Heads of Departments in Applied mechanics and Civil Engineering respectively, at the Government Polytechnic. They were recruited by direct selection in 2008. However, the petitioner could not avail the opportunity of such direct selection since the Head of Department, Plastic Engineering is due to be filled by promotion. The petitioner is now faced with a situation whereby her juniors having lesser qualification in other departments have already been promoted as Heads of Departments and who rank higher than the petitioner in the seniority list of Heads of Department and who will have better chances of promotion as Principal than the petitioner.
2.16 The petitioner is recently transferred as Lecturer, Government Polytechnic, Valsad, vide order dated 30.09.2012, and relieved on 22.12.2012.
Page 8 of 27HC-NIC Page 8 of 27 Created On Wed Dec 02 01:58:32 IST 2015 C/SCA/9250/2013 CAV JUDGMENT 2.17 It is submitted that the said transfer is arbitrary, unreasonable and against the government policy and is made without considering the fact that the petitioner is a single parent to her 20 year old daughter, Rachna who suffers from 100% hearing impairment and who is a student of Government Polytechnic, Ahmedabad, trying to complete her studies.
3 In such circumstances referred to above, the petitioner has preferred this petition.
4 Mr. Nandish Chudgar, the learned advocate appearing for the petitioner submitted that the post of the Head of Department, Department of Plastic Engineering, Government Polytechnic, Ahmedabad, is a permanent post, and lying vacant almost for a period of 14 years. His client has discharged the function as the Incharge, Head of Department, for a continuous period of 7 ½ years i.e. between 05.04.2005 and 22.12.2012. He submitted that his client is a senior most Lecturer in the Department of Plastic Engineering, Government Polytechnic, State of Gujarat.
5 Mr. Chudgar submitted that his client is qualified for being promoted as the Head of Department. According to Mr. Chudgar, the inaction on the part of the respondents in not undertaking the procedure is unreasonable and arbitrary. He submitted that if the promotional exercise had been undertaken in time, probably, his client being the senior most and qualified Lecturer, would have been the Head of Page 9 of 27 HC-NIC Page 9 of 27 Created On Wed Dec 02 01:58:32 IST 2015 C/SCA/9250/2013 CAV JUDGMENT Department for a long time back.
6 Mr. Chudgar submitted that the service record of his client is impeccable. His client is the only woman Lecturer in the Government Polytechnic with the kind of qualifications, academic distinction and experience. He submitted that the persons juniors to his client possessing lesser qualifications have been promoted as the Heads of Departments.
7 On the other hand, this application has been vehemently opposed by Ms. Shruti Pathak, the learned Assistant Government Pleader appearing for the State respondent. Ms. Pathak has placed reliance on the following averments made in the affidavitinreply filed on behalf of the respondent No.2 - the Commissioner, Technical Education, Gandhinagar:
"9. It is respectfully submitted that the preliminary contention is to the effect that the petitioner could not have prayed for such a relief in the petitioner under section 226 of the Constitution of India directing the authorities to fill up the post, still however with a view to submit before this Hon'ble Court, the deponent humbly submits that in fact the case of the petitioner has been forwarded to the Education Department by the Directorate of Technical Education vide letter dated 07.12.2009 whereby the department has submitted the necessary details of the petitioner with all the details of such polytechnics in the State of Gujarat. A copy of the letter dated 07.12.2009 is annexed herewith and marked as AnnexureRI.
10. It is respectfully submitted that it is the prerogative of the State Government to fill up the post of Head of Department as and when the Departmental Promotion Committee (DPC) needs for considering the candidates to be promoted to the post of Head of Plastic Engineering Department for Government Polytechnics. However, the petitioner even in that case cannot pray for issuance of directions in any manner unless there are allegations of mala fide or a junior candidate then the petitioner being Page 10 of 27 HC-NIC Page 10 of 27 Created On Wed Dec 02 01:58:32 IST 2015 C/SCA/9250/2013 CAV JUDGMENT appointed as Head of Department, which is not the case of the petitioner.
11. It is respectfully submitted that as far as the prayer of the petitioner is concerned, it is once again at the cost of repetition submitted that such petition is not maintainable for the relief, which is prayed by the petitioner to fill up the post and the deponent therefore prays that this Hon'ble Court may not issue writ of mandamus directing the authorities to fill up post.
12. It is submitted that matter of revision of RR of the HOD was in consideration and finalized by Education Department notification dated 1372012. The process of promotion of eligible candidates shall be taken up by DPC as per this notification. A copy of the resolution of Education Department dated 1372012 is annexed herewith and marked as AnnexureRII."
8 Ms. Pathak has also placed reliance on the affidavitinreply filed on behalf of the respondent No.1 - the State of Gujarat:
"2. After receiving letter of Director of Technical Education, Government has observed that as per the Government Resolution, which was issued by the State Government on 12.12.2001, for the post of Head of the Department (Plastic Technology), the employee who possess degree of plastic Engineering or Technology should be considered for the promotion. The petitioner is having qualification of M.E. in Chemical Engineering and not in Plastic Engineering or Technology. Since the petitioner does not possess educational qualification as per Government Resolution dated 12.12.2001. Therefore, the petitioner is not entitled for promotion. A copy of the Government Resolution dated 12.12.2001 is annexed herewith and marked as AnnexureRI to this affidavit.
3. I say and submit that earlier, the petitioner preferred the Special Civil Application No.9284 of 2014 before this Hon'ble Court regarding the adverse remarks in her Confidential Report for the year 201213. The case is pending before the this Hon'ble Court and it is most respectfully submitted that after final outcome of the above mentioned case, the department will follow the order passed by Hon'ble Court in that matter and therefore, the present petition is required to be dismissed in limine."
9 Ms. Pathak has also placed reliance on one additional affidavit filed on behalf of the respondent No.2, wherein the following averments Page 11 of 27 HC-NIC Page 11 of 27 Created On Wed Dec 02 01:58:32 IST 2015 C/SCA/9250/2013 CAV JUDGMENT have been made:
"4. I respectfully say and submit that as per the Recruitment Rules, 1998, the appointment to the post of Head of the Department in the different disciplines namely engineering, technology, humanities or science was to be made by two methods:
a. By promotion and,
b. Direct selection.
5. I respectfully say and submit that for the appointment to the post of Head of the Department by promotion, the criteria was as follows:
(a) by promotion of a person of proved merit and efficiency from cadre of Lecturer in concerned discipline having at least eight years experience and as such have passed by Departmental Examination.
Provided that lecturer recruited after 07.01.1992 as per the Recruitment Rules published under Government notification, Education Department No: GHSHSCT1089107591GH dated the 7th January, 1992 shall be eligible for promotion only after acquiring the educational qualifications mentioned in rule 4:
Provided further where the appointing authority is satisfied that a person having an experience specified above is not available for promotion and that it is necessary in the pubic interest to fill up the post by promotion of a person having experience of a lesser period it may, for reasons to be recorded in writing, promote a person possessing lesser experience;
Provided further that the lesser experience so possessed by the candidate is not less than two third period referred to above, or
(b) by direct promotion,
6. I respectfully say and submit that so far as the qualifications required for the said post are concerned, the same provided for a First Class Masters Degree in Engineering or Technology or its equivalent qualification from a recognized university or institute; or a Ph.D. Degree in an appropriate branch for teaching courses in humanities or science or its equivalent qualification from a recognized university.
7. I respectfully say and submit that the petitioner was appointed as as adhoc lecturer on 09.08.1990. I say and submit that as per the rules Page 12 of 27 HC-NIC Page 12 of 27 Created On Wed Dec 02 01:58:32 IST 2015 C/SCA/9250/2013 CAV JUDGMENT governing the appointments of the lecturers, the regular appointments were made by the examinations conducted by the Gujarat Public Service Commission (hereinafter referred to as 'GPSC'). The petitioner was accordingly appointed as a regular lecturer on 22.11.1993 after she cleared her examination conducted by GPSC in the Government Polytechnic, Ahmedabad.
8. I respectfully say and submit that as per the recruitment rules of 1998 which prescribed for an experience of 8 years as a lecturer, the petitioner as per her regular recruitment in 1993 completed 8 years in 2001. the petitioner as per the recruitment rules would be eligible only in 2001 to be considered for promotion to the post of Head of the Department. Therefore, the petitioner cannot claim that her name considered to be considered for the promotion from 1998 as she would only be eligible subject to the qualification in the year 2001 when she attains 8 years of experience.
9. I respectfully say and submit that so far as educational qualification prescribed under the recruitment rules of 1998 is considered, it provides for a first class degree in Engineering or Technology of its equivalent qualification from a recognized university. The petitioner as per the degree certificate annexed at ANNEXURERRII in the additional affidavit filed by her at page 188 has obtained a Masters Degree in 2002.
Therefore, even otherwise, taking into account the fact that the petitioner could not be found to be eligible to claim appointment on or before 2002.
10. I respectfully say and submit that Rule 4(b) would be relevant required to be examined by the Hon'ble Court. Rule 4(b) reads as follows:
"4.b) Possess:
(i) Qualification: First Class Master's degree in Engineering or Technology of its equivalent qualification from recognized university or institution; Ph.D. Degree in appropriate branch for teaching posts in humanities or sciences or its equivalent qualification from recognized university established by law or deemed to be university under section 3 of the university grants commission at, 1956 or from an institute recognized by All India Council for Technical Education,
(ii) Five years' experience on responsible post in teaching/industry and Research gained after acquiring the qualifications specified above; Provided that a person from industry or profession with recognized professional work which in the opinion of Gujarat Public Service Commission is equivalent to Master's Degree or Ph.D. degree, as the case may be, shall also be eligible; Provided further that preference shall be given to a candidate having Ph.D. degree in Engineering or Technology or Technical Education or Post Doctorate work in case of teaching Page 13 of 27 HC-NIC Page 13 of 27 Created On Wed Dec 02 01:58:32 IST 2015 C/SCA/9250/2013 CAV JUDGMENT posts in Humanities or Sciences;
I respectfully say and submit that Rule 4(b) provides for a first class Master's Degree in Engineering or Technology. I say and submit that looking to the Degree Certificate of the petitioner at AnnexureRRIl annexed in her additional affidavit, the sameshows that she is possessing M.E. in Chemical Engineering and not in relevant Plastic Engineering.
11. I respectfully say and submit that since there were number of disciplines in Engineering courses there arosed certain aspects for determination of exact corresponding branch. Therefore, to meet with the issues to determine the relevancy, the Education Department issued Government Resolution dated 13.05.1987 defining corresponding branch of Engineering for the purpose of recruitment to various courses. The Government Resolution provided for equivalency in branches for appointment to the post of Professors, Lecturers and Head of the Department. A copy of the Government Resolution dated 13.05.1987 is annexed herewith and marked as ANNEXURER11. Since at the point of time due to lack of availability of candidates possessing Plastic Engineering Degree the department had prescribed for corresponding branch in Chemical Engineering (with at least two papers in Plastic Technology) for Plastic Engineering.
12. I respectfully say and submit that subsequently in 12.12.2001, the Education Department has issued another Government Resolution defining corresponding branch of Engineering for purpose of recruitment to various posts on account that new courses had increased and therefore the department had to introduce new Government Resolution. A copy of the Government Resolution dated 12.12.2001 is annexed herewith and marked as ANNEXURERIII. A bare perusal to the Government Resolution at Sr. No. 11 prescribes equivalency for Professor / Assistant Professor, Head of the Department in Plastic Technology which is Plastic Engineering.
13. I respectfully say and submit that the Education Department has by way of Government Resolution dated 28.10.2013 has decided equivalent graduate and post graduate degree possessed in Engineering or Technology as requisite qualifications for the appointment to the post of Lecturer, Head of the Department and Professor in Government Polytechnics and Assistant Professor, Professors and Principal in Government Engineering Colleges. AnnexureA annexed to the Government Resolution provides for the name of the post graduate degree of engineering and its equivalent any / M.Tech. Degree. So far as Plastic Engineering is concerned, the name of post graduate engineering degree includes plastic process, plastic technology, polymer engineering and polymer technology. The petitioner possess M.E. in Polymers with a degree of Chemical Engineering and the same cannot be equated to any of the aforesaid qualifications. A copy of Page 14 of 27 HC-NIC Page 14 of 27 Created On Wed Dec 02 01:58:32 IST 2015 C/SCA/9250/2013 CAV JUDGMENT the Government Resolution dated 28.10.2013 is annexed herewith and marked as ANNEXURERIV.
14. I respectfully say and submit that so far as the aspect with respect to promotion is concerned, a method adopted by the department is that upon completion of the relevant qualifying years of service on the post, taking into consideration the merit and efficiency of candidates who are eligible for promotion in terms of experience and who fulfill criteria as per the recruitment rules, along with their efficiency as well as the Confidential Reports the names of the candidates who are found to be eligible are forwarded to the Departmental Promotion Committee (DPC).
15. I respectfully say and submit that the Departmental Promotion Committee thereafter, scrutinizes the qualifications, experience, merits, efficiency, confidential reports of each and every candidates whose names are forwarded by the department and thereafter, if any candidate is found to be eligible to grant promotion, the Departmental Promotion Committee recommends the name of the said candidate.
16. I respectfully say and submit that the Departmental Promotion Committee constitutes of three members including Principal Secretary (Education), Commissioner Technical Education and Deputy Secretary, General Administration Department. I respectfully say and submit that once the Departmental Promotion Committee recommends the names, the same are forwarded to different departments including the Education Department, General Administration Department, Finance Department, Gujarat Public Service Commission etc. Thus, there is specific channel with respect to forwarding the names of the persons for promotion in the department. It is only when the name of the recommended candidate finds clearance by all the concerned departments, upon their eligibility and merits that the candidate is granted promotion.
17. I respectfully say and submit that it seems that the Department Promotion Committee in its meeting held on 05.1 1.2009 had recommended the name of the petitioner for promotion. I say and submit that when the name of the petitioner was forwarded ahead as per the channel reiterated hereinabove, the petitioner was not found to be eligible as per the educational qualification. A copy of the noting of the Education Department dated 02.08.2011 is annexed herewith and marked as ANNEXURERV. This decision was taken with respect to the recommendation of the DPC dated 05.11.2009.
18. I respectfully say and submit that once the DPC recommends the name of a candidate, he/she cannot claim for promotion as an infeasible right to be promoted. I respectfully say and submit that as reiterated herein above, after the names are recommended by the DPC, the same are forwarded to the different department for transfer and only and only when Page 15 of 27 HC-NIC Page 15 of 27 Created On Wed Dec 02 01:58:32 IST 2015 C/SCA/9250/2013 CAV JUDGMENT the name of the candidate is approved all throughout, a candidate is given promotion. Therefore, the petitioner's claim in the additional affidavit stated that since the DPC did not raise any objection with respect to her qualification to the appointment as Head of the Department, Plastic Engineering and despite of same she is denied is thoroughly misconceived. The authorities at Higher Level have rejected her case as she did not possess relevant degree at Post Graduate level as she possessed Master's Degree in Chemical Engineering. I respectfully say and submit that the petitioner possesses a bachelor's degree in Plastic Engineering and Masters Degree in Chemical Engineering. The petitioner has obtained her Ph.D. Degree in Chemical Engineering hence the petitioner even otherwise does not possess the required qualification in the relevant subject.
19. I respectfully say and submit that thus, as per the Recruitment Rules, 1998, the petitioner did not qualify to be appointed as Head of the Department as on 1998 and in addition she did not possess requisite education criteria.
20. I respectfully say and submit that the claim of the petitioner even as on today cannot be taken into consideration by the authorities, the Recruitment Rules of 1998 have been replaced by new Rule of Recruitment in 2012 by way of Government Notification dated 19.06.2012 issued by Education Department. I respectfully say and submit that the rules were brought into by the State Government in exercise of the powers conferred by the proviso2 Article 309 of the Constitution of India in supersession of the rules made in this behalf. A copy of the Recruitment Rules of 2012 is annexed herewith and marked as ANNEXURERVI.
21. I respectfully say and submit that as per the new recruitment rules, there is a major change in so far as the educational qualifications for the post of Head of the Department is concerned. I respectfully say and submit that the new rules provides specifically for Bachelor's and Master's Degree in "appropriate branch" in engineering or technology with first class either at bachelors or masters level from any of the university establish or in corporate by or under the Central or State act in India. Therefore, even as on today, the petitioner's claim if compared to her educational qualifications out rightly make her ineligible to be considered for promotion.
22. I respectfully say and submit that as per the procedure adopted in the department, if any post of the Head of the Department is vacant and not filled up by of direct selection or promotion, the same cannot be kept vacant and for administrative reasons, the Senior Lecturer is given additional charge of Head of the Department. I say and submit that therefore, the petitioner was given additional charge of the Head of the Department for administrative reasons and hence, since she is working as incharge Head of the Department, she cannot be granted promotion to the Page 16 of 27 HC-NIC Page 16 of 27 Created On Wed Dec 02 01:58:32 IST 2015 C/SCA/9250/2013 CAV JUDGMENT said post automatically. I say and submit that as the authorities did not have requisite eligible candidates available who could be promoted to the post of Head of the Department, Plastic Engineering, the department had no other option but to give additional charge to the petitioner on account of practice adopted by the authorities that senior most Lecturer is given additional charge as 'incharge' Llead of the Department. Even as on 1999 there were no eligible person available with the respondents. A copy of the noting of the Director of Technical Education dated 06.09.1999 would clearly indicate that as on 06.09.1999 also, there were no eligible candidates and petitioner also did not qualify. A copy of the noting as on 06.09.1999 is annexed herewith and marked as ANNEXURERVII. 1 respectfully say and submit that when there were no eligible candidates available with the department to promote on post of Head of the Department, the petitioner cannot be permitted to invoke Article 226 of the Constitution of India to compel the respondent authorities to fill in the post brushing aside the eligible criteria as per statutory recruitment rules.
23. I respectfully say and submit that the petitioner has claimed that she may be given promotion from 09.08.1998. As against the submission of the petitioner, it is submitted that the promotion can be given only on the date when it occurs i.e. the date of order of promotion when issued. I say and submit that the same cannot be given any retrospective effect as per the practice and procedure adopted by various departments.
24. I respectfully say and submit that the General Administrative Department has issued Circular dated 02.09.2002 which provides that promotion cannot be given retrospectively. A copy of the Government Resolution dated 02.09.2002 is annexed herewith and marked as ANNEXURERVIII.
25. I respectfully say and submit that the promotion cannot be claimed as a matter of right. I respectfully say and submit that the candidate can only ask to be considered for promotion and cannot claim promotion as a matter of right.
26. I respectfully say and submit that it is even not a case that the petitioner is not granted promotion and her juniors are granted promotion ignoring her seniority. Thus, the circumstances referred to herein above the Hon'ble Court may not entertain the present petition."
10 According to Ms. Pathak, the petitioner does not possess the relevant degree at the postgraduate level as she possesses the Master degree in Chemical Engineering. The main objection as it appears from Page 17 of 27 HC-NIC Page 17 of 27 Created On Wed Dec 02 01:58:32 IST 2015 C/SCA/9250/2013 CAV JUDGMENT the averments of Ms. Pathak is that the petitioner holds the Bachelor degree in the Plastic Engineering, whereas the Master degree in the Chemical Engineering, the petitioner has obtained her Ph.D. in the Chemical Engineering, and therefore, she is not entitled to promotion due to lack of the required qualification.
11 In such circumstances referred to above, Ms. Pathak submitted that there being no merit in this writ application, the same be rejected.
12 On 06.08.2015, the following order was passed;
"On 7th April 2015, the following order was passed :
1. Shri Nandish Chudgar, learned counsel appearing for the petitioner, submits that for the past 14 years, the case of the petitioner has not been considered for promotion, which also is hampering his further promotion to the post of Principal. Many of his colleagues or juniors have already been given promotion and also have been enjoying further promotion to the post of Principal as well as Deputy Secretary. He has further submitted that the respondent No.2 has also stated that the petitioner's case has already been sent to the respondent No.1State Government for consideration in the year 2009, however, in absence of any reply filed by the respondent No.1, the present status of such proposal is not yet known. It is the say of the petitioner that after such petition came to be filed by the petitioner, on December 17, 2013 adverse remarks for the period from April 01, 2012 to December 22, 2012, were noted in the Confidential Report of the petitioner, for which challenge has been made by way of Special Civil Application No.9284 of 2014.
2. Shri Devang Dave, learned Assistant Government Pleader, ensures to file affidavitinreply making also clear on record the status of the proposal sent by the respondent No.2. He has sought for time of four weeks.
In view of aforesaid, the learned Assistant Government Pleader shall file affidavitinreply on or before May 04, 2015. Let the Page 18 of 27 HC-NIC Page 18 of 27 Created On Wed Dec 02 01:58:32 IST 2015 C/SCA/9250/2013 CAV JUDGMENT matter appear on May 05, 2015.
The grievance of the petitioner is that her case is not being considered for promotion as the Head of the department, Plastic Engineering, Government Polytechnic, Ahmedabad.
It appears that the departmental promotion committee had met on 5th November 2009 to consider the case of the petitioner for promotion. The departmental promotion committee consisting of three members : (i) Additional Secretary, Education Department, (ii) Director, Technical Education, and (iii) Deputy Secretary, General Administration Department, recommended the case of the petitioner for promotion subject to clearing the CCC examination.
It appears that the recommendations of the departmental promotion committee were thereafter forwarded to the State Government. However, till this date, no decision has been taken as regards the claim of the petitioner for promotion. It is sought to be argued by the learned AGP that some adverse remarks were put in the confidential report. Such remarks were put in the year 2013.
I fail to understand how such adverse remarks put in the confidential report of the petitioner in the year 2013 should come in her way, more particularly, when the departmental promotion committee had cleared her way back on 5th November 2009.
What is important is, whether on that day i.e. on 5th November 2009, was there anything adverse against the petitioner.
Some dispute has been raised as regards her qualifications. Prima facie, it appears that she possesses the qualifications for being promoted as the Head of the department.
The learned AGP prays for some time to seek further instructions in the matter since this matter is of the year 2013 and has abruptly being notified for hearing.
It is very distressing to note that despite the fact that the petitioner is serving as the Incharge, Head of the department, since 1999 and has worked in different Polytechnics across the State of Gujarat, she is not being considered fit for being appointed as the Principal of the Polytechnic college.
The Government should make its stance clear that if she does not hold the qualifications, how come that she continued to serve as the In charge, Head of the department, past almost 16 years.
Page 19 of 27HC-NIC Page 19 of 27 Created On Wed Dec 02 01:58:32 IST 2015 C/SCA/9250/2013 CAV JUDGMENT One last chance is given to the State respondents to make their stance clear.
Let this matter appear on 11th August 2015 on top of the Board."
13 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the petitioner is entitled to the relief prayed for in this writ application.
14 It is very depressing to note that the manner in which the case of the petitioner has been dealt with by one and all. It is not in dispute that she is discharging her duties as the Incharge Head of Department of the Plastic Engineering, Government Polytechnic, from 1999. Even after putting in these many years of service as the Incharge Head of Department, the authorities concerned are of the view that she is not qualified for being promoted. The details as regards the dates and duration of work are as under:
Sr. Dates Duration Remark 1 Remarks 2
No. Y/M/D/
1 '07.12.1999 to 00/00/02 Post vacant
08.12.1999 from 1998
2 15.01.2000 to 00/03/04 Charge allowance
19.04.2000 received
3 01.05.2002 to 02/05/27 Charge allowance
28.10.2004 claimed
4 05.04.2005 to 07/07/17 Charge allowance Pay Scale of
22.12.2012 received upto HOD ClassI
5.4.2006 rest is received from
claimed 22.11.2004
5 25.3.2014 to 01/04/11
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continue
Total duration 11/09/00 @12
Y/M/D years (as on
5.8.2015)
• T otal Teaching experience : 09/08/1990 to continue i.e. 25 years (as on
5.8.2015)
• Minimum experience required for the post of Principal Government
Polytechnics: Have about 10 (ten) years combined or separate experience in teaching or research or industry out of which at least 03 (three) years' experience on the post of the Head of Department, Class I in the Government Polytechnics or on the post which can be considered equivalent to the post of Head of Department, Class I in the Government Polytechnics.
• 25 years teaching experience out of which @ 13 years research experience which includes @7 years of postdoctoral research experience.
• This is @ 2.5 times the minimum requirement of teaching/research experience.
• @12 years of incharge Head of Department, in the Government Polytechnics (which can be considered as equivalent to the post of Head of Department, Class I in the Government Polytechnics as I draw the pay scale of Head of Department, Class I in the Government Polytechnics since November 2004 i.e. for @ 4 times the minimum requirement of Class I)."
15 It appears that as on today, the petitioner is the only lady serving in the Government Polytechnic possessing a Ph.D. in the Engineering.
There is a policy of the State Government to reserve 30% seats for women in public employment. This also appears to have remained only on paper. The affidavitinrejoinder filed by the petitioner to the reply of the respondent No.2, makes the picture very clear. The relevant for my purpose reads as under:
"4. With reference to para 4 of the reply, it is denied that none of the Page 21 of 27 HC-NIC Page 21 of 27 Created On Wed Dec 02 01:58:32 IST 2015 C/SCA/9250/2013 CAV JUDGMENT fundamental or legal rights of the petitioner has been violated due to action/inaction of the respondents. I say that every employee of a State has a fundamental right of being considered for promotion. Such right cannot be denied to the petitioner by not undertaking the procedure for promotion. It is denied that the present petition is not maintainable in law or deserves to be dismissed.
5. With reference to para 7 of the reply, it is denied that the petitioner cannot pray for such a relief under Article 226 of the constitution of India for issuance of directions to fill up the post with the state government. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution.
6. With reference to para 7 of the reply, it is denied that the petitioner has not alleged that any person who is junior to the petitioner is appointed/promoted as Head of Department and that the petitioner may approach this Hon'ble Court only in case an employee who is junior to the petitioner is appointed as a Head of Department. I say that the procedure for promotion of Heads of Department in other departments has been undertaken at regular intervals and juniors as Heads of the Department. The inaction of the respondents in not undertaking the procedure for promotion of Heads of Department in Plastic Engineering Department has thus resulted in employees junior to the petitioner moving higher up in the seniority list of the Heads of the Department for promotion to the post of Principal and has thus jeopardized the petitioner's chances of being promoted as a Principal. The same is also evident from the seniority list of Heads of Department annexed to this petition as AnnexureJ.
7. With reference to para 8 of the reply, I say that the respondents are making false statements on oath and have made a very irresponsible and devious allegation that the petitioner has suppressed the fact about pendency of another petition filed by the petitioner praying for quashing of transfer orders. I say that the said fact is clearly conveyed in para 3.8 of the memo of this petition and also during the hearing. Even otherwise, both the petitions were placed on board on same dates until Rule came to be issued on 25.10.2013 in Special Civil Application No.8344 of 2013.
8. With reference to para 9 of the reply, I say that the mere act of forwarding the details to the Education Department does in no way address my grievances regarding the inaction of government in filling up the post of Head of Department. The respondents have also very conveniently not explained the delay in forwarding the said details till 2009 when the post has been lying vacant for Director recruitment since 19981999 and for promotion since 20002001. The said fact is also evidence from the Education Department Notification annexed to the affidavit in reply by the respondents as AnnexureRI at page 153. I also Page 22 of 27 HC-NIC Page 22 of 27 Created On Wed Dec 02 01:58:32 IST 2015 C/SCA/9250/2013 CAV JUDGMENT say that the respondent has deliberately concealed the reasons behind inaction in filling up the post till date when an eligible woman candidate was available since 1998 and was in fact paid additional charge allowance for discharging duties of In charge Head of Department. It is also pertinent to note that according to circular dated 09.04.97 30% seats are also reserved for women. A copy of the circular dated 09.04.97 along with circular dated 22.05.97 and 26.08.97 are annexed as AnnexureF to the memo. The respondent no.2 has also deliberately concealed the outcome of the case forwarded to the Education Department vide their letter dated 07.12.2009. It also be noted that the exercise of filling up the post of Head of Department is to be taken up by respondent no.1 who have not yet filed a reply.
9. With reference to para 10 of reply, it is denied that it is the prerogative of the state government to fill up the post of Head of Department as and when Departmental Promotion Committee feels the need for considering the candidates to be promoted since the post of the Head of Department is a sanctioned permanent post and to fill up the said post is mandatory even as per the All India Council For Technical Education Approval Process Handbook. The respondent's claim that no juniors have been appointed as Head of Department is also false since the common seniority list of Heads of Department clearly demonstrates that employees junior to the petitioner having lesser qualification have been appointed as Heads of other Departments."
16 I am not impressed by the submission of the learned Assistant Government Pleader appearing for the State that the petitioner lacks the requisite qualifications for being promoted to the post of the Head of Department. I may quote the resolution dated 13.05.1987 passed by the Government of Gujarat, in its Education Department, defining the corresponding branch of engineering for the purpose of recruitment to the various teaching courses under the Directorate of Technical Education.
"Government of Gujarat Education Department Resolution No.SCT10864300GH Sachivalaya, Gandhinagar Dated the 13, May, 1987, Page 23 of 27 HC-NIC Page 23 of 27 Created On Wed Dec 02 01:58:32 IST 2015 C/SCA/9250/2013 CAV JUDGMENT RESOLUTION The Recruitment Rules of various teaching posts such as Professors, Assistant Professors, Lecturer and Heads of Department under the Directorate of Technical Education provide Degree in IInd Class in corresponding branch of Engineering in respect of teaching posts of various branches of Engineering as an essential qualification for the purpose of recruitment to the post. As there are number of discipline in Engineering the question of defining the exact corresponding branch of Engineering was under consideration of Government in consultation with Directorate of Technical Education. It has now been decided mentioned in ColumnII of the Appendix appended to this resolution the, corresponding branches of Engineering shall be these specified in column No.III against the respective post in the appendix.
By order and the name of the Governor of Gujarat.
Sd/ (D.K. MANKAD) Under Secretary to Government, Education Department."
17 The appendix appended to the resolution reads as under:
Sr. Designation of Teaching posts Corresponding/Appropriate/ No. (Engineering Colleges & Existing concerned Branch of Polytechnics) Engg. & Technology.1 2 3
.... .....
14 Professor/Asstt. Professor/ Chemical Engineering
Lecturer in Plastic Technology (with at least two papers
Head of Dept. in Plastic Tech. in Plastic Technology)
in Govt. Polytechnics.
.... .....
18 I may also quote the resolution dated 12.12.2001, which reads as
under:
"RESOLUTION
The State Government had defined corresponding branch of Engineering / Page 24 of 27 HC-NIC Page 24 of 27 Created On Wed Dec 02 01:58:32 IST 2015 C/SCA/9250/2013 CAV JUDGMENT Technology vide Government Resolution dated 13.5.1987 and 10.4.198 mentioned in the preamble.
As there is a vast expansion in the field of technical education, and the number of new courses I have increased and new courses have also been introduced, it was under consideration to revise the corresponding branches of Engineering/Technology. After careful consideration the State Government has decided as follows:
1. While recruiting the candidates for various teaching courses, preference shall be given to candidates of the same discipline.
2. If a candidate from the same discipline is not available then candidates of other discipline can be considered as mentioned in Column3 in the annexure appended to this resolution.
These order shall come into effect from the date of issue of this department Resolution.
By order and in the name of the Governor of Gujarat sd/ (R.V. SUTHAR) Under Secretary to Government, Education Department."
19 The appendix to the above referred Government resolution clarifies the position as regards the Plastic Engineering:
Sr. Designation of Teaching posts Revised Corresponding/ No. (Engineering Colleges & Appropriate/concerned Polytechnics) Branch of Engg. & Technology. (Basic degree in Engineering or equivalent.) 1 2 3 ... ...
11 Professor/Asstt. Professor/ Plastic Engg.
Lecturer in Plastic Technology Head of Deptt. In Plastic Tech. In Govt. Polytechnics.
... ...
20 The most important resolution is one dated 28.10.2013, which
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speaks about equivalency of the various Graduate and Postgraduate Degree Courses in engineering or technology:
"Preamble:
The Commissionerate of Technical Education has made a proposal vide letter referred to 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 Government.
Resolution:
After consideration, the Government is pleaded to decide equivalent graduate and post equivalent graduate and post graduate degree courses in Engineering or Technology as requisite qualifications 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 candidate must be in the relevant discipline at graduate level."
21 Annexure: 'A' to the said resolution provides as under:
Sr. Name of Graduate Engineering Equivalent BE/BTech.
No. Technology Degree (BE/BTech.) Degree
1 2 3
... ...
Sr. Name of Post Graduate Engineering Equivalent ME/MTech.
No. Technology Degree (ME/MTech.) Degree
... ...
182 PLASTICS PROCESSING AND TESTING
183 PLASTICS TECHNOLOGY
PLASTIC ENGINEERING
184 POLYMER ENGINEERING
185 POLYMER TECHNOLOGY
22 The only feeble argument canvassed on behalf of the State is that
the petitioner does not possess the relevant degree at the postgraduate level as she possessed the Masters' degree in Chemical Engineering.Page 26 of 27
HC-NIC Page 26 of 27 Created On Wed Dec 02 01:58:32 IST 2015 C/SCA/9250/2013 CAV JUDGMENT Whereas, the Bachelor degree is in the Plastic Engineering. The Government thought fit to appoint the petitioner as an Incharge Head of the Department, and has continued her past almost 15 years, but when it comes to considering the case for promotion, the petitioner lacks the necessary qualifications. This is nothing, but a very highhanded and arbitrary action on the part of the authority.
23 In view of the above, this petition is allowed. The respondents are directed to consider the case of the petitioner for promotion as the Head of Department, Plastic Engineering, Government Polytechnic, Ahmedabad, with the deemed date of 09.08.1998. This exercise shall be undertaken at the earliest and shall be completed within a period of four weeks from the date of the receipt of the writ of this order. Any callous approach on the part of the authority will be viewed very strictly. Rule is made absolute to the aforesaid extent.
(J.B.PARDIWALA, J.) chandresh Page 27 of 27 HC-NIC Page 27 of 27 Created On Wed Dec 02 01:58:32 IST 2015