Gujarat High Court
State Of Gujarat vs Gnaneshwary D Shah on 18 February, 2020
Equivalent citations: AIRONLINE 2020 GUJ 102
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
C/LPA/128/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 128 of 2016
In R/SPECIAL CIVIL APPLICATION NO. 9250 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2016
In R/LETTERS PATENT APPEAL NO. 128 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE VIRESHKUMAR B. MAYANI
================================================================
1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
================================================================
STATE OF GUJARAT & 3 other(s)
Versus
GNANESHWARY D SHAH
================================================================
Appearance:
MS. JIRGA JHAVERI, AGP (1) for the Appellant(s) No. 1,2,3,4
MR PA JADEJA(3726) for the Respondent(s) No. 1
PRERAK P OZA(8279) for the Respondent(s) No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE VIRESHKUMAR B. MAYANI
Date : 18/02/2020
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIRESHKUMAR B. MAYANI) Page 1 of 21 Downloaded on : Thu Feb 20 02:48:46 IST 2020 C/LPA/128/2016 JUDGMENT
1.The appellants were the original respondents in Special Civil Application No. 9250 of 2013 which has been decided by the learned Single Judge on 01.12.2015, by which the learned Single Judge has directed the appellants to consider the case of the opponent herein for promotion as the Head of Department, Plastic Engineering, Government Polytechnic, Ahmedabad with the deemed date of 09.08.1998.
2.Being aggrieved and dissatisfied by the impugned order, the appellants - original respondents have preferred this Letters Patent Appeal against the opponent herein - original petitioner under Clause 15 of the Letters Patent Act.
3.The brief facts of the present case as mentioned in Special Civil Application No. 9250 of 2013 in paragraph2 has been taken from the said paragraph, which are 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 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 Page 2 of 21 Downloaded on : Thu Feb 20 02:48:46 IST 2020 C/LPA/128/2016 JUDGMENT 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 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 Page 3 of 21 Downloaded on : Thu Feb 20 02:48:46 IST 2020 C/LPA/128/2016 JUDGMENT 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 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.
Page 4 of 21 Downloaded on : Thu Feb 20 02:48:46 IST 2020C/LPA/128/2016 JUDGMENT All the three 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 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.
Page 5 of 21 Downloaded on : Thu Feb 20 02:48:46 IST 2020C/LPA/128/2016 JUDGMENT 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. 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 petitioners career not just by promotion but has also eliminated the chances of direct recruitment to the Principals 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 Page 6 of 21 Downloaded on : Thu Feb 20 02:48:46 IST 2020 C/LPA/128/2016 JUDGMENT 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.
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."
4.Learned Assistant Government Pleader Ms. Jirga Jhaveri, appearing for the appellants State has submitted that the learned Single Judge has erred in facts in issuing the direction upon the appellants to consider the case of the opponent herein for the deemed date of promotion i.e. from 09.08.1998. The learned Single Judge has not properly appreciated the Recruitment Rules as well as the requirement for promotion as Head of the Department. The opponent herein was appointed on 09.08.1990 on adhoc basis and the services rendered by her on adhoc basis was not to be considered at the time of promotion in the length of service.
5.The opponent herein was regularly appointed on the post on 22.11.1993, after she cleared the examination of the Gujarat Public Service Commission (GPSC), therefore, the service Page 7 of 21 Downloaded on : Thu Feb 20 02:48:46 IST 2020 C/LPA/128/2016 JUDGMENT cannot be considered from the date of appointment on adhoc basis. He has also submitted that at the time of considering the seniority, the period served as ashoc cannot be considered, and thereby that period cannot be considered at the time of promotion of the said employee.
6.The minimum requirement for the experience is 8 years and counting in a proper manner, then the same come on 22.11.2001 and not on 09.08.1998.
7.The learned Single Judge has not properly appreciated the Recruitment Rules as well as the condition for the promotion in a proper way. The opponent herein was Incharge of Head of the Department, the said fact had been taken into consideration by the learned Single Judge, but such practice prevailing in the government department that whenever Head of the Department is not available, then In charge Head of the Department is appointed, which cannot entitle that person for promotion on the post. He has also submitted that the requirement for appointing Head of the Department was that of a Master Degree in Plastic Engineering, whereas, opponent herein possess Master Degree in Chemical Page 8 of 21 Downloaded on : Thu Feb 20 02:48:46 IST 2020 C/LPA/128/2016 JUDGMENT Engineering.
8.The opponent herein possess the degree of Ph.D. in Chemical Engineering, whereas, as per the Rules, Ph.D. degree is required to have in an appropriate branch i.e. in the Plastic Engineering. The pendency of Special Civil Application No. 9284 of 2014 before this Court which has been preferred by the opponent herein against the adverse remarks in her Annual Confidential Report (ACR) is not considered by the learned Single Judge as an obstruction in the promotion. At last, the learned AGP has prayed to allow the present appeal and quashed and prayed to set aside the order of the learned Single Judge passed in the abovementioned Special Civil Application.
9.Learned advocate Mr.P.A. Jadeja appearing for opponent herein has submitted that the opponent herein had the degree and she has entitled for the promotion of Head of the Department in the abovementioned institute. He has also submitted that there are three institutions, viz. at Ahmedabad, Valsad and Chhota Udepur and the post of Head of the Department are vacant. He has submitted that, now a days, 30% quota is reserved for women Page 9 of 21 Downloaded on : Thu Feb 20 02:48:46 IST 2020 C/LPA/128/2016 JUDGMENT and the present opponent is only the woman candidate for the promotion. He has also submitted that the opponent herein is M.E. as well as Ph.D., and not only that, but she was in the charge of the Head of the Department for more than seven years, and therefore, she has all the experience for the post of the Head of the Department. He has also submitted that the opponent herein had preferred the representation for promotion for so many times, but the opponent herein is not promoted and posted as the Head of the Department. He has also submitted that the requirement for the promotion, the degree possessed by the opponent herein, the different Rules and Notifications, etc., all such aspects are properly appreciated by the learned Single Judge and came to the conclusion to consider the case of the opponent herein for the promotion on the post of Head of the Department. At last, he prayed to dismiss the present appeal of the appellants State Government.
10. We have considered the materials available and produced before us and arguments of the learned advocates appearing for the respective parties as well as impugned judgment and order of the learned Page 10 of 21 Downloaded on : Thu Feb 20 02:48:46 IST 2020 C/LPA/128/2016 JUDGMENT Single Judge passed in the abovementioned Special Civil application, the learned Single Judge has observed as under:
"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 Durati Remark 1 Remarks No. on 2 Y/M/ D/ 1 07.12.1999 00/00/02 Post to vacant 08.12.1999 from 1998 2 15.01.2000 00/03/04 Charge to allowance 19.04.2000 received 3 01.05.2002 02/05/27 Charge to allowance 28.10.2004 claimed 4 05.04.2005 07/07/17 Charge Pay Scale to allowance of HOD 22.12.2012 received upto ClassI 5.4.2006 rest is received claimed from 22.11.20 04 Page 11 of 21 Downloaded on : Thu Feb 20 02:48:46 IST 2020 C/LPA/128/2016 JUDGMENT 5 25.3.2014 to 01/04/11 continue Total 11/09/00 duration @12 years Y/M/D (as on 5.8.2015)
Total 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 post doctoral 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 affidavitin rejoinder 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 fundamental or legal rights of the petitioner has been violated due to action/inaction of the respondents. I say that Page 12 of 21 Downloaded on : Thu Feb 20 02:48:46 IST 2020 C/LPA/128/2016 JUDGMENT 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 Honble 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 petitioners 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 Page 13 of 21 Downloaded on : Thu Feb 20 02:48:46 IST 2020 C/LPA/128/2016 JUDGMENT 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 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 respondents 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 Page 14 of 21 Downloaded on : Thu Feb 20 02:48:46 IST 2020 C/LPA/128/2016 JUDGMENT 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, 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 Corresponding/Appro No. posts (Engineering priate/Existing Colleges & Polytechnics) concerned Branch of Engg. & Technology.1 2 3
... ..... Page 15 of 21 Downloaded on : Thu Feb 20 02:48:46 IST 2020 C/LPA/128/2016 JUDGMENT 14 Professor/Asstt. Chemical Professor/ Lecturer in Engineering(with at Plastic Technology Head least two papers in of Dept. in Plastic Tech. 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 / 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 Page 16 of 21 Downloaded on : Thu Feb 20 02:48:46 IST 2020 C/LPA/128/2016 JUDGMENT clarifies the position as regards the Plastic Engineering:
Sr. Designation of Revised
No. Teaching posts Corresponding/
(Engineering Colleges & Appropriate/concerne
Polytechnics) d Branch of Engg. &
Technology. (Basic
degree in Engineering
or equivalent.)
1 2 3
.... ...
11 Professor/Asstt. Plastic Engg.
Professor/ 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 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 Page 17 of 21 Downloaded on : Thu Feb 20 02:48:46 IST 2020 C/LPA/128/2016 JUDGMENT 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 Equivalent
No. Engineering Technology BE/BTech. Degree
Degree (BE/BTech.)
1 2 3
..... ...
Sr. Name of Post Graduate Equivalent
No. Engineering Technology ME/MTech.
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. 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 Page 18 of 21 Downloaded on : Thu Feb 20 02:48:46 IST 2020 C/LPA/128/2016 JUDGMENT 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. "
11. We have considered the submission of the respective parties. It is not in dispute that the present opponent was appointed in the year 1990 on adhoc basis, and thereafter, in the year 1993, she was appointed on regular basis. It is also not in dispute that she had a degree of M.E. and Ph.D., both in chemical discipline. It is also not in dispute that she serving in the plastic engineering since long. Not only that but in the plastic engineering itself, opponent herein was in charge Head of Department for more than seven years.
12. In view of the above mentioned facts and circumstances, the opponent herein had enough experience of plastic engineering and teaching in plastic engineering, as she is Lecturer in that discipline for about 30 years. No doubt, the degree of M.E. as well as Ph.D. of the opponent herein in the Page 19 of 21 Downloaded on : Thu Feb 20 02:48:46 IST 2020 C/LPA/128/2016 JUDGMENT chemical engineering, but at the same time, the opponent herein, as stated above, has vast experience in plastic engineering. We have considered the impugned judgment and order of the learned Single Judge. The learned Single Judge has considered the different resolutions of the government and interpreted the same. Moreover, there is a rule of reservation of 30% of women and as per the submission, the opponent herein is only available woman candidate for promotion as Head of the Department. Moreover, it has been considered that the opponent herein is entitled from the year 1998, considering 8 years experience from the year 1990, in which she was appointed on adhoc. In our opinion that period passed as adhoc appointment shall not be considered in the seniority and at the time of promotion. Therefore, the impugned judgment and order of the learned Single Judge is required to be modified.
13. In view of the aforesaid peculiar facts and circumstances of the case, the appeal is partly allowed and the impugned judgment and order of the learned Single Judge is modified to the extent that period served by the opponent herein on the basis of the adhoc appointment shall be excluded at the time of Page 20 of 21 Downloaded on : Thu Feb 20 02:48:46 IST 2020 C/LPA/128/2016 JUDGMENT considering the seniority as well as promotion, rest of the impugned judgment and order of the learned Single Judge dated 01.12.2015 passed in Special Civil Application No. 9250 of 2013 shall remain as it is.
Civil Application, if any, stands
disposed of, accordingly.
(S.R.BRAHMBHATT, J)
(VIRESHKUMAR B. MAYANI, J)
Pradhyuman
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