Gujarat High Court
Samirkumar Bhupendrabhai Pandya vs State Of Gujarat on 4 March, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/LPA/233/2022 CAV JUDGMENT DATED: 04/03/2025
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Reserved On : 21/02/2025
Pronounced On : 04/03/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 233 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 14705 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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SAMIRKUMAR BHUPENDRABHAI PANDYA & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR SHALIN MEHTA, SENIOR COUNSEL WITH MR HEMANG M
SHAH(5399) for the Appellant(s) No. 1,2,3,4
MR CHAITANYA S JOSHI(5927) for the Respondent(s) No. 2
RULE NOT RECD BACK for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 3,4,5,6,7,8,9
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV) Page 1 of 18 Uploaded by DIVYA PILLAI(HC00199) on Wed Mar 05 2025 Downloaded on : Wed Mar 05 22:07:28 IST 2025 NEUTRAL CITATION C/LPA/233/2022 CAV JUDGMENT DATED: 04/03/2025 undefined
1. This appeal, under Clause 15 of the Letters Patent, has been filed by the appellants who were the original petitioners before the learned Single Judge. The prayer in the petition was that the amendment to the advertisement dated 08.06.2018 and the action of the respondent GPSC in declaring the appellants - petitioners ineligible to the post of Assistant Professor GES, Class - II in Statistics subject be declared as bad.
2. Facts in brief as set out by the learned Single Judge in paragraphs no. 3.1-3.3 are as under:
"3.1 The respondent No.2-GPSC by way of a public advertisement bearing No.87/2016-17 issued in the newspaper as well as on its website in the month of November, 2016 invited applications for the post of Assistant Professors of Statistics subject in Government Arts, Commerce, Science colleges in the State of Gujarat. The respondent No.2, by way of amendment dated 25.11.2016, clarified that in the subjects, in which the exams like NET, SLET are not being conducted with regard to the percentage of NET, SLET, PHD, the applicant shall mention "0" in the column of percentile/ percentage in the application form. The respondents, thereafter conducted entrance examination on 02.04.2017 for the aforesaid post Page 2 of 18 Uploaded by DIVYA PILLAI(HC00199) on Wed Mar 05 2025 Downloaded on : Wed Mar 05 22:07:28 IST 2025 NEUTRAL CITATION C/LPA/233/2022 CAV JUDGMENT DATED: 04/03/2025 undefined and also issued the call letters. On 02.08.2017, the petitioners appeared and were declared successful in the examination. On 08.06.2018, the respondent No.2 published a further advertisement clarifying earlier advertisement being No.82/16-17 with respect to Assistant Professor GES, Class-II having degrees in the subject of Accountancy and Statistics. As per the decision taken by the Education Department, the subjects in which the NET/SLET/SET are not being conducted, the minimum qualifications of degree of Ph.D. was prescribed. So far as subjects of Accountancy/ Statistics are concerned, the University Grants Commission (UGC) does not conduct NET/SLET/SET.
3.2 On 08.08.2018, respondent No.2 declared the list of ineligible candidates. The names of the petitioners were not included since they had obtained Ph.D. degree after the commencement of the recruitment process. So far petitioner No.5 is concerned he is not having Ph.D. degree. On 13.08.2018, the respondent No.2 declared the list of eligible candidates. The eligible candidates, as mentioned in the provisional list dated 13.08.2018 were called upon on 28.08.2018 for further scrutiny and verification of documents.
3.3 On 05.09.2018, the petitioners filed the captioned writ petition challenging the amended advertisement dated 08.06.2018 and the list of candidates dated 08.08.2018 and the provisional list (second) of eligible candidates dated 13.08.2018. On 24.09.2018, a notice was issued by this Court granting liberty to the petitioners to file interim application seeking appropriate orders if the interviews are scheduled. The petitioners requested for interim order as interviews were Page 3 of 18 Uploaded by DIVYA PILLAI(HC00199) on Wed Mar 05 2025 Downloaded on : Wed Mar 05 22:07:28 IST 2025 NEUTRAL CITATION C/LPA/233/2022 CAV JUDGMENT DATED: 04/03/2025 undefined scheduled on 02.01.2019 and hence, on 26.12.2018 this Court passed an order permitting the petitioners to sit in the interview with a condition that the results of the petitioners shall be kept in a sealed cover subject to further order. The respondent No.2 preferred Letters Patent Appeal No.170 of 2019 challenging the interim order however, the same came to be withdrawn. Thereafter, respondent No.2-GPSC preferred Civil Application No.1 of 2019 in the present petition for vacating interim relief, the same was dismissed. Thereafter, the interviews were conducted on 13.09.2021 after almost three years of the previously scheduled date i.e. 02.01.2019. On 03.12.2021, the sealed cover of results was opened in this Court, wherein it was found that the petitioner Nos.1 and 3 to 5 are having more weightage marks than the private respondents."
3. Mr. Shalin Mehta, learned Senior Advocate appearing with Ms. Aditi Raol, learned advocate for the appellants made the following submissions:
(I) That the recruitment rules in question provide that in order to be eligible for the post of Assistant Professors, though the eligibility provided that a candidate should have cleared National Eligibility Test / State Level Eligibility Test, a person who had a Ph.D degree was exempted from clearing such Page 4 of 18 Uploaded by DIVYA PILLAI(HC00199) on Wed Mar 05 2025 Downloaded on : Wed Mar 05 22:07:28 IST 2025 NEUTRAL CITATION C/LPA/233/2022 CAV JUDGMENT DATED: 04/03/2025 undefined NET/SLET examination. He would submit that the proviso further provided that in cases where NET/SLET was not taken for subjects like Statistics in which the petitioners had applied, the proviso had to be read in such a manner that the requirement of a candidate having a Ph.D degree was not necessary.
He would therefore submit that the action of the respondents in declaring the appellants ineligible for appointment on the ground that they did not posses Ph.D degree on the last date of the advertisement is bad.
(II) Reading the clarification to the advertisement made on 08.06.2018 (Annexure G), Mr. Mehta would submit that the clarification made by the GPSC vindicated the stand of the appellants. The authorities themselves were unclear whether in the subjects where NET/SLET was not taken, should a candidate possess a Ph.D degree and it was for this purpose that such a clarification was necessary.
Page 5 of 18 Uploaded by DIVYA PILLAI(HC00199) on Wed Mar 05 2025 Downloaded on : Wed Mar 05 22:07:28 IST 2025NEUTRAL CITATION C/LPA/233/2022 CAV JUDGMENT DATED: 04/03/2025 undefined (III) Alternatively, he would submit that calling for a clarification post the advertisement amounted to changing the rules of the game and therefore though one of the petitioners had obtained Ph.D degree post the date of the application and the others also had in the meantime obtained Ph.D qualifications, they could not be held ineligible for being appointed to the post in question.
4. Mr. Chaitanya Joshi, learned counsel appearing for GPSC would support the order of the learned Single Judge. He would submit that the advertisement was clear that a candidate must possess the two qualifications namely possess a Masters degree and should have cleared NET/SLET. The proviso indicated that candidates who are awarded Ph.D degree shall be exempted from the requirement of NET/SLET. On a clarification sought by the education department as to whether Ph.D should be considered as minimum Page 6 of 18 Uploaded by DIVYA PILLAI(HC00199) on Wed Mar 05 2025 Downloaded on : Wed Mar 05 22:07:28 IST 2025 NEUTRAL CITATION C/LPA/233/2022 CAV JUDGMENT DATED: 04/03/2025 undefined qualification, the education department clarified that in cases where NET/SET/SLET is not being conducted, Ph.D in the concerned subject would be the minimum necessary qualification. The submission of the learned counsel for the appellants therefore that on the last date of the applications, Ph.D was not a necessary qualification is misconceived. The proviso cannot be read in isolation of the main body of the rule.
5. Having considered the submissions made by the learned counsel for the respective parties, the relevant rule which came up for consideration before the learned Single Judge and the advertisement has been set out by the learned Single Judge in paragraph no. 9 of the judgement under challenge. In order to avoid duplicity, we reproduce paragraph no. 9 which contains reproduction of paragraph no. 2 of the advertisement with regard to educational qualification which requires interpretation.
Page 7 of 18 Uploaded by DIVYA PILLAI(HC00199) on Wed Mar 05 2025 Downloaded on : Wed Mar 05 22:07:28 IST 2025NEUTRAL CITATION C/LPA/233/2022 CAV JUDGMENT DATED: 04/03/2025 undefined "9. Clause 4(1) of the advertisement, which was issued in the month of November, 2016, inter alia stipulates the educational qualification. The same mentions that the candidates shall possess the requisite educational qualification on the last date of acceptance of the application i.e. 30.11.2016. Thus, all the petitioners have obtained the Ph.D. degree after the cut-off date. All the petitioners have applied for the post of Assistant Professor GES, Class-II. Paragraph No.2 of the advertisement mentions about educational qualification. The first part refers to possessing of Masters degree with at least 55%. The aforesaid criterion is not disputed as all the petitioners possess Masters degree with 55%. Sub-para (b) of paragraph No.2 of the advertisement reads as under:
"(2)(b) Have cleared the National Eligibility Test (NET)/State Level Eligibility Test (SLET) for recruitment and appointment of Assistant Professor in colleges being conducted by the University Grants Commission, Council of Scientific and Industrial Research or such similar tests like State Level Eligibility Test (SLET)/State Eligibility Test (SET) accredited by the University Grants Commission.
Provided that candidates who are or have been awarded Ph.D degree in accordance with the University Grants Commission (minimum Standards and Procedure for Award of Ph.D. Degree) Regulation, 2009, shall be exempted from the requirement of clearing of NET/SLET for recruitment and appointment of Assistant Professor or equivalent position in Colleges;
Provided further that NET/SLET/SET shall not be required for in respect of such subject for Page 8 of 18 Uploaded by DIVYA PILLAI(HC00199) on Wed Mar 05 2025 Downloaded on : Wed Mar 05 22:07:28 IST 2025 NEUTRAL CITATION C/LPA/233/2022 CAV JUDGMENT DATED: 04/03/2025 undefined which NET/SLET/SET is not conducted."
6. Reading the above would indicate that in order to be eligible for appointment to the post of Assistant Professor, a candidate must possess a Masters degree with atleast 55%. Such a candidate should have cleared NET/ SET/SLET. The proviso indicates that a candidate who has a Ph.D degree would be exempted from the requirement of clearing NET/SET/SLET examination and the proviso further stated that NET/SET/SLET shall not be required in respect of subjects for which it is not conducted. The submission of learned counsel for the appellants cannot be accepted to suggest that in subjects where NET/SET/SLET is not conducted, Ph.D is not required. It would be reading the rule in a manner which a plain and simple reading of such rule does not envisage.
Reading of the rule together with the proviso would indicate that a candidate who has a Ph.D degree is exempted from appearing NET/SET/SLET. The further proviso therefore cannot be read to indicate that where Page 9 of 18 Uploaded by DIVYA PILLAI(HC00199) on Wed Mar 05 2025 Downloaded on : Wed Mar 05 22:07:28 IST 2025 NEUTRAL CITATION C/LPA/233/2022 CAV JUDGMENT DATED: 04/03/2025 undefined no NET/SET/SLET is provided a candidate need not have a Ph.D degree. What the rule and the proviso when read together stipulate is that a holder of Ph.D degree would be exempted from appearing in NET/SET/SLET. The rule therefore provides that appointments are to be made on the basis of NET/SET/SLET and in absence of such an exam a Ph.D degree is a necessary qualification.
7. The advertisement's clarification (Annexure G) could not amount to changing the rules of the game inasmuch as it does not seek to modify or alter the rules but would only intend clarifying the rule position with regard to educational qualification as on the last date of application. The qualification and eligibility of the candidate on the last date of the filing of the application as per the rule therefore is that a candidate must possess two qualifications namely Masters degree and should have cleared NET/SET/SLET. Those candidates who have a Ph.D degree are exempted from clearing NET/SET/SLET. The necessary consequence thereof is Page 10 of 18 Uploaded by DIVYA PILLAI(HC00199) on Wed Mar 05 2025 Downloaded on : Wed Mar 05 22:07:28 IST 2025 NEUTRAL CITATION C/LPA/233/2022 CAV JUDGMENT DATED: 04/03/2025 undefined that merely because in a subject no NET/SET/SLET is provided, it does not mean that a Ph.D degree is not essential. In fact it is the converse i.e. essentially a Ph.D degree would be necessary to earn exemption from NET/ SET/SLET. Merely because no NET/SET/SLET is provided would not make a candidate's position minus the Ph.D degree a better qualification.
8. The learned Single Judge while so interpreting the rule in paragraphs no. 10 to 14 has held as under:
"10. A plain and simple reading of the provision of the advertisement stipulates that the candidates should have cleared NET/SLET/SET. The candidates, who possess Ph.D. Degree are exempted from appearing in the NET/SLET/SET examination. Thus, the advertisement mandates that the candidates, who apply for the post of Assistant Professor shall possess Ph.D. Degree, which is awarded in accordance of University Grant Commission (minimum Standards and Procedure for Award of Ph.D. Degree) Regulation, 2009 shall be exempted from NET/SLET/ SET. Further, Proviso also clarifies that in the subjects in which NET/SLET/SET is not conducted, the same are exempted from NET/SLET/SET. There is no proviso mentioned in the advertisement that the candidates, who do not possess Ph.D. Degree, will be considered eligible for the post on the basis of Page 11 of 18 Uploaded by DIVYA PILLAI(HC00199) on Wed Mar 05 2025 Downloaded on : Wed Mar 05 22:07:28 IST 2025 NEUTRAL CITATION C/LPA/233/2022 CAV JUDGMENT DATED: 04/03/2025 undefined Masters Degree. It appears that after preliminary examination, a clarification was sought by the respondent No.2 from the State Education Department vide communication dated 15.02.2018 as to whether the Ph.D. degree should be considered as minimum qualification in those subjects in which NET/SLET/SET examination is not conducted. The Education Department, vide communication dated 12.04.2018 has clarified that subjects in which NET/SLET/SET is not held, in those cases, minimum qualification of Ph.D. Degree shall be considered. Accordingly, a clarificatory advertisement was issued on 08.06.2018 by the respondent-GPSC. The relevant extract of the said advertisement, which is necessary for deciding the issue, reads as under:
"While conducting NET/ SLET/ SET exams, the UGC does not conduct any exam of Accountancy/ Statistic as a separate subject. Because of this reason, the candidates applying with regard to the stated advertisement do not possess a certificate as to passing Accountancy/ Statistic subject in NET/ SLET/ SET. Further, their Ph.D. Degree certificate read their stream as 'Commerce'. For considering such candidates eligible for the interview, with a view to prove that they possess a degree in the given subject (Accountancy/ Statistic)/ Stream in context of the posts advertised vide Advertisement No. 82/ 2016-17 - Accountancy and Advertisement no. 87/ 2016-17 - Statistic of Assistant Professor, Class-II, it is being informed that the candidates may, invariably, produce their Ph.D. Certificates, regarding the title of their Ph.D. Thesis, bearing the signatures and common seal of Faculty Dean and the Page 12 of 18 Uploaded by DIVYA PILLAI(HC00199) on Wed Mar 05 2025 Downloaded on : Wed Mar 05 22:07:28 IST 2025 NEUTRAL CITATION C/LPA/233/2022 CAV JUDGMENT DATED: 04/03/2025 undefined Registrar of the University (a sample format enclosed) and any other relevant evidence latest by the office hours on 20/06/2018. Any representation thereafter in this regard shall not be taken into consideration under any circumstances."
11. A perusal of the clarificatory advertisement reveals that the respondent-GPSC has only clarified that the candidates, who are possessing Ph.D. Degree shall supply or provide their documentary evidence in this regard on the date of interview and such documents shall be supplied on or before 20.06.2018. There is no provision stipulated in the clarificatory advertisement that the Ph.D. Degree obtained after issuance of advertisement shall be considered as eligible and any candidate like the petitioner Nos.1 to 4, who have obtained Ph.D, after issuance of the advertisement shall be qualified for the selection to the post of Assistant Professor. As noted hereinabove, the Clause 4(1) of the advertisement specifically stipulates that the candidates shall possess the requisite educational qualification on the last date of acceptance of the application. The aforesaid clause has not been altered in the clarificatory advertisement. Thus, the requisite educational qualifications in all the categories are governed by Clause 4(1) of the advertisement. The petitioners have not challenged the aforesaid clause, and they are governed by the same. Thus, it was mandatory for the petitioners to possess the Ph.D. degree on the last date of their acceptance of their applications. Merely, because their applications are accepted by the respondent- GPSC, the acceptance cannot dilute the requirements of the advertisement. The GPSC in clarificatory advertisement has only clarified that in those subjects like Statistics/ Accountancy, wherein Page 13 of 18 Uploaded by DIVYA PILLAI(HC00199) on Wed Mar 05 2025 Downloaded on : Wed Mar 05 22:07:28 IST 2025 NEUTRAL CITATION C/LPA/233/2022 CAV JUDGMENT DATED: 04/03/2025 undefined no NET/SLET/SET examination is conducted, then the Ph.D. degree is prescribed as minimum qualification. The clarificatory advertisement does not introduce any new qualification of Ph.D. degree, since the same was already prescribed in the main advertisement. Hence, the petitioners, who have subsequently procured the Ph.D. degree cannot be considered for the appointment.
12. It appears that the petitioners have misconstrued the aforesaid advertisement and have challenged the aforesaid advertisement on the ground that such criteria is introduced after issuance of the advertisement. Such submission and contention is misconceived since the advertisement already contains the clause specifying the educational qualification with regard to NET/SLET/SET and Ph.D. Degree. The applications of all the petitioners were accepted and they were allowed to undertake the selection process only because the respondent No.2 has sought opinion of the State Education Department with regard to considering the educational qualification in the subjects, where NET/SLET/SET has not been conducted. After obtaining such clarification/ opinion of the State Government, the respondent No.2 has issued the clarificatory advertisement. Thus, merely because the petitioners were permitted to undergo the recruitment process, they would have no right to claim their appointments only because they have obtained Ph.D. Degree subsequently.
13. In the alternative, the petitioners are also claiming their case to be considered for the post of Assistant Professor GES, Class-II on the basis of their having Masters degree. The petitioners have also placed reliance on the rules governing the Page 14 of 18 Uploaded by DIVYA PILLAI(HC00199) on Wed Mar 05 2025 Downloaded on : Wed Mar 05 22:07:28 IST 2025 NEUTRAL CITATION C/LPA/233/2022 CAV JUDGMENT DATED: 04/03/2025 undefined appointment of the post of Assistant Professor GES, Class-II promulgated vide Notification dated 19.03.2011. The rules introduced with the aforesaid Notification are "Assistant Professor GES, Class-II in the Gujarat Arts, Commerce and Science Colleges in Gujarat Educational Services, Class-II, Recruitment Rules, 2011". The relevant rules are incorporated as under:
1.These rules may be called the Assistant Professor in the Government Arts, Science and Commerce Colleges in Gujarat Educational Service, Class II, Recruitment Rules, 2011.
2.Appointment to the post of Assistant Professor in the Government Arts, Science and Commerce Colleges in Gujarat Educational Service, Class II, shall be made by direct selection.
3.To be eligible for appointment by direct selection to the post mentioned in rule 2, a candidate shall-
(a) not be more than 30 years of age:
Provided that the upper age limit may be relaxed in favour of a candidate who is already in the service of the Government of Gujarat in accordance with the provisions of the Gujarat civil Services Classification and Recruitment (General) Rules, 1967.
(b) possess a post graduate degree with atleast 55% of the marks or at least its equivalent grade of B in the seven point scale with letter grades O, A, B, C, D, E and F at the master degree level in relevant subject of Page 15 of 18 Uploaded by DIVYA PILLAI(HC00199) on Wed Mar 05 2025 Downloaded on : Wed Mar 05 22:07:28 IST 2025 NEUTRAL CITATION C/LPA/233/2022 CAV JUDGMENT DATED: 04/03/2025 undefined any of the Universities established or incorporated by or under the Central or State Act in India or any other educational institution recognised by the Government or declared deemed to be a University under section 3 of the University Grants Commission Act, 1956, or possess an equivalent degree from an accredited foreign University or possess an equivalent qualification recognized as such by the Government.
Provided that the requirement of 55% marks at the post graduate degree may be relaxed to 50% in respect for the candidate belonging to Scheduled Castes and Scheduled Tribes and different disabled (physically and visually different abled) categories. Such relaxation shall be permissible only on consideration of the qualifying marks:
Provided further that such relaxation shall be available to the candidate, who have completed their Ph.D. degree and have obtained Master's degree prior to the 19th September, 1991.
(c) have cleared the National Eligibility Test (NET)/State Level Eligibility Test (SLET) for recruitment and appointment of Assistant Professor in colleges being conducted by the University Grants Commission, Page 16 of 18 Uploaded by DIVYA PILLAI(HC00199) on Wed Mar 05 2025 Downloaded on : Wed Mar 05 22:07:28 IST 2025 NEUTRAL CITATION C/LPA/233/2022 CAV JUDGMENT DATED: 04/03/2025 undefined Council of Scientific and Industrial Research or such similar tests like State Level Eligibility Test (SLET)/State Eligibility Test (SET) accredited by the University Grants Commission.
Provided that candidates who are or have been awarded Ph.D degree in accordance with the University Grants Commission (minimum Standards and Procedure for Award of Ph.D. Degree) Regulation, 2009, shall be exempted from the requirement of clearing of NET/SLET for recruitment and appointment of Assistant Professor or equivalent position in Colleges;
Provided further that NET/SLET/SET shall not be required for in respect of such subject for which NET/SLET/SET is not conducted."
14. The afore-noted statutory rules do not in any manner instruct that the appointment to the post of Assistant Professor GES, Class-II can be made only on the basis of Masters degree de hors the eligibility of NET/SLET/SET or Ph.D. Degree. The exemption to NET/SLET/SET is only conferred in those subjects in which the same is not conducted. The rules indubitably prescribe that the appointments to the post of Assistant Professor GES, Class-II are to be made on the basis of NET/SLET/SET and in absence of NET/SLET/SET, it has to be Ph.D. Degree. Thus, both the advertisement and the statutory rules, prescribe Page 17 of 18 Uploaded by DIVYA PILLAI(HC00199) on Wed Mar 05 2025 Downloaded on : Wed Mar 05 22:07:28 IST 2025 NEUTRAL CITATION C/LPA/233/2022 CAV JUDGMENT DATED: 04/03/2025 undefined the holding of Ph.D. Degree as a necessary qualification for the appointment to the post of Assistant Professor, GES, Class-II."
9. We therefore find no reason to take a view different than the one taken by the learned Single Judge and therefore there is no reason to entertain this appeal.
Appeal is accordingly dismissed.
(BIREN VAISHNAV, J) (D. M. DESAI,J) DIVYA Page 18 of 18 Uploaded by DIVYA PILLAI(HC00199) on Wed Mar 05 2025 Downloaded on : Wed Mar 05 22:07:28 IST 2025