Harikrishna Vinodray Bhatt vs State Of Gujarat on 21 September, 2022

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Gujarat High Court

Harikrishna Vinodray Bhatt vs State Of Gujarat on 21 September, 2022

Bench: Biren Vaishnav

     C/SCA/13124/2019                           JUDGMENT DATED: 21/09/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 13124 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                        HARIKRISHNA VINODRAY BHATT
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR. KULDEEP D VAIDYA(7045) for the Petitioner(s) No. 1
RULE SERVED for the Respondent(s) No. 1,2,3,4
MR SOAHAM JOSHI, AGP for the Respondent(s) No. 1,2,3,4
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
                      Date : 21/09/2022
                      ORAL JUDGMENT

1. Heard learned advocates for the respective parties and perused the record.

2. By way of this petition, the petitioner has challenged the Page 1 of 14 Downloaded on : Thu Sep 22 23:24:52 IST 2022 C/SCA/13124/2019 JUDGMENT DATED: 21/09/2022 communication dated 6.3.2019 by which his case for promotion to the post of Senior Clerk has been refused on the ground that he had passed his CCC examination from Dr. Babasaheb Ambedkar Open University.

3. Mr. Vaidya, learned counsel for the petitioner would rely on a decision dated 8.3.2019 of Division Bench of this Court in LPA No.560 of 2019 and allied matters, wherein the Division Bench held that services obtained from Dr. Babasaheb Ambedkar Open University need to be counted as valid. Relevant portion of the said decision reads as under:

"6 Having given our anxious consideration to the submissions made by the learned Assistant Government Pleader, it will be in the fitness of things to reproduce the relevant undisputed findings of the learned Single Judge which would lead us to render a decision and holding, that in our opinion the learned Single Judge committed no error. The relevant paragraphs are reproduced herein below:

"8.1 It is an uncontroverted fact that the Government Resolution dated September 20, 2006, issued by the General Administration Department is qua the CCC and CCC+ examinations, wherein as rightly pointed out by the learned Page 2 of 14 Downloaded on : Thu Sep 22 23:24:52 IST 2022 C/SCA/13124/2019 JUDGMENT DATED: 21/09/2022 Assistant Government Pleader, the training prescribed for CCC examination with which we are concerned, is of 45 hours; whereas the examination of 100 marks i.e. 50 marks each for practical and theory examinations. Both, the Gujarat Council for Vocational Training and ITI Centres administered by the Government of Gujarat, were to conduct the examination. For the purpose of training also, the Gujarat Council for Vocational Training and SPIPA were notified.

8.2 However, subsequently the General Administration Department on realising the magnitude of the task passed the Government Resolution on January 02, 2009 and it also included Dr.Babasaheb Ambedkar Open University, for the purpose of training as well as examination, both. Total 181 centres of Dr.Babasaheb Ambedkar Open University for training had been recognised, but for examination it was not recognised by the respondentState, which had been permitted under the supervision and guidance of any officer of SPIPA, ITI and Gujarat Technical Examination Board.

8.3 Once again, under the heading of Recognition of Centres of Dr.Babasaheb Ambedkar Open University, a Government Resolution came to be issued, wherein some of the old centres have been derecognised and new centres have been introduced. Accordingly, schedule 'C' has been considered to be the schedule with centres which are recognised for the purpose of examination. Thus, for the purpose of examination, Dr.Babasaheb Page 3 of 14 Downloaded on : Thu Sep 22 23:24:52 IST 2022 C/SCA/13124/2019 JUDGMENT DATED: 21/09/2022 Ambedkar Open University with those specified training and examination centres continued to have recognition.

8.4 On adverting to the facts of the present case in the aforesaid background, it is not the case of the respondent authority that any of the petitioners has either taken training at the centres which are not recognised or appeared in the examination which have not been prescribed in schedule 'C' in the last Government Resolution issued on June 22, 2010. It is also necessary at this stage to particularly make a mention of the fact that there are no two types of examinations conducted for CCC by the Dr.Babasaheb Ambedkar Open University, but only one type of examination, which is of 400 marks. Therefore, those who took training and appeared in the examination have no choice, but to appear in the examination conducted by the Dr.Babasaheb Ambedkar Open University. Corollary to this is a fact which deserves to be mentioned emphatically that the aspect of the said University conducting examination of 400 marks has come to the knowledge of the respondent State since the year 2010. This was conveyed to the Court by the learned Assistant Government Pleader on instructions from the officer present in the Court, on a specific query raised by the Court. Yet the said centres have either been removed till date by derecognising them for the purpose of training or examination, nor has there been any communication to the employees not to appear from such centres or to take such examination of Page 4 of 14 Downloaded on : Thu Sep 22 23:24:52 IST 2022 C/SCA/13124/2019 JUDGMENT DATED: 21/09/2022 400 marks. When that is indisputable fact, there is no reason to deny the petitioners the benefits of higher payscale who have passed the CCC examination from the said University, which otherwise has recognised by both the Government Resolutions issued by the State.

8.5 One of the issues raised by the petitioners is with respect to the employees queuing up for want of availability of seats to appear in the CCC examination which has been made compulsory by the StateGovernment for getting all the benefits in the Government service. For that very reason in the year 2009, the respondent State made it open for the Open Universities to be included for both, training and examination purpose.

8.6 Further, it is also not the case of the respondentState that the training and the examination conducted by the said University is not as per the syllabus prescribed. There were instances where prior to the year 2009, when this University was recognised for both these purposes, their training course was not recognised by the State authority, however, on realising that the same has fallen in the line of the prescription given by the respondent State, the recognition has come. In that view of the matter and with there being no choice with the candidates who appeared through this recognised centre, it is absolutely unjust and arbitrary action on the part of the respondentState to deny them the benefit after not having whispered once since the Page 5 of 14 Downloaded on : Thu Sep 22 23:24:52 IST 2022 C/SCA/13124/2019 JUDGMENT DATED: 21/09/2022 year 2010 that such course from the concerned University is not recognised."

7 Perusal of the paragraphs reproduced hereinabove would suggest that, though by various resolutions subsequent to the resolution of 30.09.2006 sub centres of the Dr.Babasaheb Ambedkar Open University were deleted as recognized centres for the examination, however, it was undisputed that at some stage examinations held by the University i.e. Dr.Babasaheb Ambedkar Open University were recognized centres for the purposes of conducting the CCC examinations. The submission of the learned Assistant Government Pleader that since the examination conducted by Dr.Babasaheb Ambedkar Open University for 400 marks was not in consonance with the syllabi of the State Government which conducted examination for awarding such certificates of 100 marks is no ground on which such examination can be held to be invalid or improper for the purposes of extension of the benefits of certificates being granted.

8 We have considered the syllabus that has been annexed to the petition i.e. of the State Government in the annexures A and B to the appropriate government resolutions and to the syllabi of the course undertaken by the Dr.Babasaheb Ambedkar Open University. Perusal extensively of these subjects which the University imparts for the purposes of granting such certificates cannot be said to be in any manner different for the purposes of extending the benefit of computer proficiency. Merely because the subjects have been worded differently or the words of the syllabi have been named in a different manner, it cannot be said that the subjects that were undertaken for Page 6 of 14 Downloaded on : Thu Sep 22 23:24:52 IST 2022 C/SCA/13124/2019 JUDGMENT DATED: 21/09/2022 giving computer proficiency by the Dr.Babasaheb Ambedkar Open University were different and not in co-existence with the syllabi prescribed by the State Government.

9 Essentially what was important and what is the spirit behind such computer proficiency is that an employee of the state government is well equipped to manage the computers. Reading of the syllabi of both, the government and that of the Dr.Babasaheb Ambedkar Open University would certainly lead us to believe that it cannot be held that the proficiency course undertaken and the certificate issued pursuant to the training undertaken at the Dr.Babasaheb Ambedkar Open University cannot be accepted by the government, merely on the ground that the Open University awarded a syllabus of 400 marks whereas the prescribed course was of 100 marks. This ground appears to be not germane for the purposes for which the certificate was issued.

10 Accordingly, we have no reason to find fault with the judgment of the learned Single Judge. The Letters Patent Appeals are accordingly dismissed. Civil Applications (For Stay) also stand disposed of with no order as to costs."

4. Even in SCA No.12121 of 2021, this Court on 05.04.2022 held as under:

"4 Considering the resolutions and the fact that Dr.Babasaheb Ambedkar Open University was a recognized institution through which the CCC examinations could be conducted, the Division Bench of the Court held as under:

Page 7 of 14 Downloaded on : Thu Sep 22 23:24:52 IST 2022

C/SCA/13124/2019 JUDGMENT DATED: 21/09/2022 "6 Having given our anxious consideration to the submissions made by the learned Assistant Government Pleader, it will be in the fitness of things to reproduce the relevant undisputed findings of the learned Single Judge which would lead us to render a decision and holding, that in our opinion the learned Single Judge committed no error. The relevant paragraphs are reproduced herein below:

"8.1 It is an uncontroverted fact that the Government Resolution dated September 20, 2006, issued by the General Administration Department is qua the CCC and CCC+ examinations, wherein as rightly pointed out by the learned Assistant Government Pleader, the training prescribed for CCC examination with which we are concerned, is of 45 hours; whereas the examination of 100 marks i.e. 50 marks each for practical and theory examinations. Both, the Gujarat Council for Vocational Training and ITI Centres administered by the Government of Gujarat, were to conduct the examination.

For the purpose of training also, the Gujarat Council for Vocational Training and SPIPA were notified.

8.2 However, subsequently the General Administration Department on realising the magnitude of the task passed the Government Resolution on January 02, 2009 and it also included Dr.Babasaheb Ambedkar Open University, for the purpose of training as well as examination, both. Total 181 centres of Dr.Babasaheb Ambedkar Open University for training had been recognised, but for Page 8 of 14 Downloaded on : Thu Sep 22 23:24:52 IST 2022 C/SCA/13124/2019 JUDGMENT DATED: 21/09/2022 examination it was not recognised by the respondentState, which had been permitted under the supervision and guidance of any officer of SPIPA, ITI and Gujarat Technical Examination Board.

8.3 Once again, under the heading of Recognition of Centres of Dr.Babasaheb Ambedkar Open University, a Government Resolution came to be issued, wherein some of the old centres have been derecognised and new centres have been introduced. Accordingly, schedule 'C' has been considered to be the schedule with centres which are recognised for the purpose of examination. Thus, for the purpose of examination, Dr.Babasaheb Ambedkar Open University with those specified training and examination centres continued to have recognition.

8.4 On adverting to the facts of the present case in the aforesaid background, it is not the case of the respondent authority that any of the petitioners has either taken training at the centres which are not recognised or appeared in the examination which have not been prescribed in schedule 'C' in the last Government Resolution issued on June 22, 2010. It is also necessary at this stage to particularly make a mention of the fact that there are no two types of examinations conducted for CCC by the Dr.Babasaheb Ambedkar Open University, but only one type of examination, which is of 400 marks. Therefore, those who took training and appeared in the examination have no choice, but to appear in the examination conducted by the Page 9 of 14 Downloaded on : Thu Sep 22 23:24:52 IST 2022 C/SCA/13124/2019 JUDGMENT DATED: 21/09/2022 Dr.Babasaheb Ambedkar Open University. Corollary to this is a fact which deserves to be mentioned emphatically that the aspect of the said University conducting examination of 400 marks has come to the knowledge of the respondent State since the year 2010. This was conveyed to the Court by the learned Assistant Government Pleader on instructions from the officer present in the Court, on a specific query raised by the Court. Yet the said centres have either been removed till date by derecognising them for the purpose of training or examination, nor has there been any communication to the employees not to appear from such centres or to take such examination of 400 marks. When that is indisputable fact, there is no reason to deny the petitioners the benefits of higher payscale who have passed the CCC examination from the said University, which otherwise has recognised by both the Government Resolutions issued by the State.

8.5 One of the issues raised by the petitioners is with respect to the employees queuing up for want of availability of seats to appear in the CCC examination which has been made compulsory by the State Government for getting all the benefits in the Government service. For that very reason in the year 2009, the respondent State made it open for the Open Universities to be included for both, training and examination purpose.

8.6 Further, it is also not the case of the respondentState that the training and the Page 10 of 14 Downloaded on : Thu Sep 22 23:24:52 IST 2022 C/SCA/13124/2019 JUDGMENT DATED: 21/09/2022 examination conducted by the said University is not as per the syllabus prescribed. There were instances where prior to the year 2009, when this University was recognised for both these purposes, their training course was not recognised by the State authority, however, on realising that the same has fallen in the line of the prescription given by the respondent State, the recognition has come. In that view of the matter and with there being no choice with the candidates who appeared through this recognised centre, it is absolutely unjust and arbitrary action on the part of the respondentState to deny them the benefit after not having whispered once since the year 2010 that such course from the concerned University is not recognised."

8 We have considered the syllabus that has been annexed to the petition i.e. of the State Government in the annexures A and B to the appropriate government resolutions and to the syllabi of the course undertaken by the Dr.Babasaheb Ambedkar Open University. Perusal extensively of these subjects which the University imparts for the purposes of granting such certificates cannot be said to be in any manner different for the purposes of extending the benefit of computer proficiency. Merely because the subjects have been worded differently or the words of the syllabi have been named in a different manner, it cannot be said that the subjects that were undertaken for giving computer proficiency by the Dr.Babasaheb Ambedkar Open University were different and not in co-existence with the syllabi prescribed by the State Government.

Page 12 of 14 Downloaded on : Thu Sep 22 23:24:52 IST 2022

C/SCA/13124/2019 JUDGMENT DATED: 21/09/2022 10 Accordingly, we have no reason to find fault with the judgment of the learned Single Judge. The Letters Patent Appeals are accordingly dismissed. Civil Applications (For Stay) also stand disposed of with no order as to costs."

5 It appears that pending the petition, not only has the petitioner been superseded in the matter of promotion to the post of Police Head Constable, but also to that of Assistant Sub Inspector based on the earlier promotions granted supersiding the petitioner in the cadre of Head Constables.

6 Considering the decision of the Division Bench dated 08.03.2019, the communications dated 19.06.2021 and 25.07.2021 are quashed and set aside.

The respondents are directed to grant deemed date of promotion with all consequential benefits taking 31.05.2017 as the date on which the petitioner was entitled to promotion to the post of Head Constable and that of 20.12.2020 to the post of Assistant Sub Inspector.

Consequential benefits on the basis of such deemed date of promotion shall be granted to the petitioner within a period of twelve (12) weeks from the date of receipt of copy of this order. The petition is allowed, accordingly. Rule is made absolute to the aforesaid extent. Direct service is permitted."

5. Accordingly, the communication dated 6.3.2019 is quashed and set aside. The respondents are directed to treat the case of the petitioner for the promotion to the post of Senior Clerk on the basis that he having validly passed CCC Page 13 of 14 Downloaded on : Thu Sep 22 23:24:52 IST 2022 C/SCA/13124/2019 JUDGMENT DATED: 21/09/2022 examination from Dr. Babasaheb Ambedkar Open University and promote the petitioner to the post of Senior Clerk from his actual date of entitlement if he is otherwise found eligible. Consequential benefits on the basis of such deemed date of promotion shall be granted to the petitioner within a period of eight (8) weeks from the date of receipt of copy of this judgment.

6. The petition is allowed, accordingly. Rule is made absolute to the aforesaid extent. Direct service is permitted. No costs.

(BIREN VAISHNAV, J) VATSAL S. KOTECHA Page 14 of 14 Downloaded on : Thu Sep 22 23:24:52 IST 2022

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