Gujarat High Court
Panchal Dipal Hareshbhai vs State Of Gujarat on 23 September, 2022
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12926 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 11220 of 2018
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 11220 of 2018
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 11220 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 11817 of 2017
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 11817 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 12012 of 2017
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 12012 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 20691 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 20692 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 20693 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 21101 of 2016
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 21101 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 21102 of 2016
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 21102 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 21105 of 2016
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 21105 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 21106 of 2016
With
Page 1 of 36
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C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 21106 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 14622 of 2017
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 14622 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 14623 of 2017
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 14623 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 14624 of 2017
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 14624 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 14625 of 2017
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 14625 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
================================================================
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 ?
================================================================
PANCHAL DIPAL HARESHBHAI & 195 other(s)
Versus
STATE OF GUJARAT
================================================================
Page 2 of 36
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C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022
Appearance:
KAUSHAL H PATEL(9328) for the Petitioner(s) No.
1,10,100,101,102,103,104,105,106,107,108,109,11,110,111,112,113,114,115
,116,117,118,119,12,120,121,122,123,124,125,126,127,128,129,13,130,131,
132,133,134,135,136,137,138,139,14,140,141,142,143,144,145,146,147,148,
149,15,150,151,152,153,154,155,156,157,158,159,16,160,161,162,163,164,1
65,166,167,168,169,17,170,171,172,173,174,175,176,177,178,179,18,180,18
1,182,183,184,185,186,187,188,189,19,190,191,192,193,194,195,196,2,20,2
1,22,23,24,25,26,27,28,29,3,30,31,32,33,34,35,36,37,38,39,4,40,41,42,43,44,
45,46,47,48,49,5,50,51,52,53,54,55,56,57,58,59,6,60,61,62,63,64,65,66,67,6
8,69,7,70,71,72,73,74,75,76,77,78,79,8,80,81,82,83,84,85,86,87,88,89,9,90,9
1,92,93,94,95,96,97,98,99
MR SP MAJMUDAR(3456) for the Petitioner(s) No.
1,10,100,101,102,103,104,105,106,107,108,109,11,110,111,112,113,114,115
,116,117,118,119,12,120,121,122,123,124,125,126,127,128,129,13,130,131,
132,133,134,135,136,137,138,139,14,140,141,142,143,144,145,146,147,148,
149,15,150,151,152,153,154,155,156,157,158,159,16,160,161,162,163,164,1
65,166,167,168,169,17,170,171,172,173,174,175,176,177,178,179,18,180,18
1,182,183,184,185,186,187,188,189,19,190,191,192,193,194,195,196,2,20,2
1,22,23,24,25,26,27,28,29,3,30,31,32,33,34,35,36,37,38,39,4,40,41,42,43,44,
45,46,47,48,49,5,50,51,52,53,54,55,56,57,58,59,6,60,61,62,63,64,65,66,67,6
8,69,7,70,71,72,73,74,75,76,77,78,79,8,80,81,82,83,84,85,86,87,88,89,9,90,9
1,92,93,94,95,96,97,98,99
ULLASH N GOHIL(8357) for the Petitioner(s) No.
1,10,100,101,102,103,104,105,106,107,108,109,11,110,111,112,113,114,115
,116,117,118,119,12,120,121,122,123,124,125,126,127,128,129,13,130,131,
132,133,134,135,136,137,138,139,14,140,141,142,143,144,145,146,147,148,
149,15,150,151,152,153,154,155,156,157,158,159,16,160,161,162,163,164,1
65,166,167,168,169,17,170,171,172,173,174,175,176,177,178,179,18,180,18
1,182,183,184,185,186,187,188,189,19,190,191,192,193,194,195,196,2,20,2
1,22,23,24,25,26,27,28,29,3,30,31,32,33,34,35,36,37,38,39,4,40,41,42,43,44,
45,46,47,48,49,5,50,51,52,53,54,55,56,57,58,59,6,60,61,62,63,64,65,66,67,6
8,69,7,70,71,72,73,74,75,76,77,78,79,8,80,81,82,83,84,85,86,87,88,89,9,90,9
1,92,93,94,95,96,97,98,99
MS NIDHI P BAROT, MR AD OZA , MS NIYATI V. VAISHNAV for the
petitioners.
MR ALKESH N SHAH, MRS YOGINI V PARIKH, MS NOOPUR V PARIKH,
MRS NISHA M PARIKH, MS MEGHA JANI for the Respondents.
DS AFF.NOT FILED (N) for the Respondent(s) No. 3
MR ISHAN JOSHI , AGP for the Respondent-State.
================================================================
CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 23/09/2022
CAV JUDGMENT
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1. This group of petitions are filed challenging the Government Resolution dated 3.2.2016 restraining the petitioners from carrying out further studies in various institutions of the country under the Qualify Improvement Program (For short "QIP").
2. As these petitions involve common controversy with regard to the aforesaid Government Resolution dated 3.2.2016, the same were heard analogously and are being disposed of by this common judgment.
3. The petitioners are serving as Lecturers as well as Assistant Professors in Government Polytechnics and Engineering Colleges in the State of Gujarat after being duly selected through the prescribed procedure conducted by the Gujarat Public Service Commission. The petitioners possess requisite qualification Page 4 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022 C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022 of respective branches where they are serving as Lecturers or Assistant Professors.
4. The petitioners are entitled to benefits of QIP policy framed by All India Council for Technical Education for the purpose of continuous growth within the faculties of Engineering Colleges for further studies in the respective fields and the concerned department so as to enhance their knowledge as well as the teaching skills in view of continuous development in technology in engineering and other subjects.
5. As per the guidelines of the All India Council for Technical Education (AICTE), the Faculty members can be permitted to pursue further studies for a period of five years under QIP policy on deputation drawing full salary without considering break in service. Page 5 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022 C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022
6. The petitioners are also entitled to get additional degree of Ph.D. for promotion in relevant branch or Masters Degree in appropriate branch if petitioners want to be promoted to the post of Principal or Head of the Department as per the requisite eligibility criteria.
7. The petitioners are therefore, required to pursue further studies as per QIP policy of AICTE. The petitioners were permitted to pursue further studies of Post Graduation as well as of Doctorate as per Government Resolution dated 9.08.1999 as per QIP policy and accordingly, 30 faculties from Diploma Polytechnics and 30 faculties from Degree Engineering Colleges based on their seniority were permitted to pursue their further studies after executing a bond of Rs. 15 Lakh for a period of 5 years with the Head Office. Page 6 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022 C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022
8. Thereafter it appears that by the impugned Government Resolution dated 3.02.2016, it is provided that 40 candidates each from Polytechnic colleges as well as Degree Engineering Colleges would be permitted to pursue further studies for a maximum period of two years instead of five years with half salary. By further circular dated 10.07.2018 also, it was clarified to implement the resolution dated 3.2.2016.
9. In view of aforesaid resolution, various institutes such as IITs and NITs have banned the candidates from the Gujarat State as the course duration is more than two years.
10. Therefore, various petitions are preferred challenging the impugned resolution which are admitted and interim relief is granted by this Court permitting the petitioners to pursue further study with full Page 7 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022 C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022 salary and allowance on deputation.
11. It appears that thereafter the respondents permitted the employees to pursue further studies for a period of two years with work load and hence they were able to draw full salary but in return they had to manage the lectures and work of the institute accordingly. By order dated 4.10.2019, the exercise to permit the employees to pursue further studies with work load was discontinued and therefore, the petitioners were again forced to pursue further studies on half salary only for a period of two years.
12. Heard learned advocates Mr. S.P.Majmudar, Mr. Kaushal H. Patel, Mr. Ullash N. Gohil, Ms. Nidhi P. Barot, Mr.A.D. Oza, Ms. Niyati V. Vaishnav for the petitioners, learned advocates Mr. Alkesh N. Page 8 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022 C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022 Shah, Mrs. Yogini V. Parikh, Ms. Noopur V. Parikh, Mrs. Nisha M.Parikh for the respondents and learned Assistant Government Pleader Mr. Ishan Joshi for the respondent- State.
13. It was submitted that the impugned resolution is in violation of Article 14, 19(1)(g) and 21 of the Constitution of India as similarly situated employees from different States of the country are permitted to pursue further studies as per QIP policy whereas the petitioners are deprived of the same.
14. It was submitted that as per the QIP policy, the petitioners are entitled to pursue further studies for five years on deputation and normal salary and allowances are required to be paid by the parent institute. Reliance was placed on clause 3 of Page 9 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022 C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022 QIP policy at page no. 116 of the petition.
15. In support of such submission reliance was placed on the decision of Hon'ble Supreme Court in case of State of T.N. and another v. Adhiyaman Educational & Research Institute and others reported in (1995) 4 Supreme Court Cases 104, wherein it is held that no policy of the State or University can be in violation with the All India Council of Technical Education Act, 1987 (For short "the AICTE Act, 1987") and policies. It was therefore, submitted that the impugned resolution is required to be quashed and set aside and the petitioners be permitted to pursue further studies for five years on deputation with full salary.
16. It was further submitted that the petitioners are having burden of loans taken for different purposes and it is difficult Page 10 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022 C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022 for them to pursue further studies on reduced half salary. It was pointed out that impugned Government Resolution is in breach of Article 14 because similarly situated persons from other States have been permitted to pursue further studies under QIP policy of AICTE. It was submitted that various employees similar to the petitioners have completed Post Graduation as well as Doctorate courses under QIP policy. It was pointed out that as the petitioners are not granted admission by various institutes in view of impugned Government Resolution, the petitioners are deprived of further studies for becoming eligible for higher grade pay and promotion.
17. It was submitted that the AICTE Act, 1987 is a Central Act and therefore, no resolution or policy of the State Government can be in violation thereof.
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18. On the other hand, learned Assistant Government Pleader Mr. Ishan Joshi for the respondents submitted that service conditions of the petitioners are governed by Gujarat Civil Service (Leave) Rules, 2002 (For short "the Rules, 2002") and the impugned resolution is as per Rules 57, 77, 78 and 84 of the said Rules. It was submitted that the Rules,2002 are framed under Article 309 of the Constitution of India and the presumption has to be drawn in favour of the Government Resolution and therefore, impugned Government Resolution has to be read as part of the statutory rules.
19. Reliance was placed on the following averments made in affidavit in reply filed on behalf of the Director, Commissionerate of Technical Education, Gandhinagar :
"7. The answering deponent states and submits that the 'Quality Improvement Page 12 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022 C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022 Program' as initiated by the All India Council for Technical Education on which reliance is being placed by the petitioner is at best a program being monitored by All India Council for Technical Education (page 115), as the AICTE Act is of the year 1987 and a 'Quality Improvement Program' was initiated in the year 1970 the said fact is brought to the notice of the Hon'ble Court to demonstrate and contest that the program was instituted and initiated as administrative decision in the form of guidelines / administrative instructions/ policies and such administrative instructions cannot run contrary to statutory rules framed under Art. 309 of the Constitution of India.
8. The answering respondent further submits that assuming without prejudice to the aforementioned contention that the 'Quality Improvement Program' has a statutory backing: Gujarat Civil Service (Leave) Rules, 2002 would have precedence over such statutory conditions after taking into consideration Entry No. 41, of list 2 of the 7th Schedule of the Constitution of India.
9. The answering deponent further submits that while challenging a Government Resolution and stating that the same is against a Central statue, it would be obligatory on the part of the petitioner to demonstrate as to which provision of Central Act is being violated by the State Authorities while Page 13 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022 C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022 passing Government Resolution.
10. In so far a as the case laws being relied upon by the petitioner before this Hon'ble Court (page no. 117), the same was with reference to establishment of technical colleges, after coming into force of the All India Technical Education Act, whether or not the State Government has power to permit starting a Technical Institution as defined in Central Act and the same was considered after taken into consideration Entry No. 41 of list I and Entry No. 25 of list 3 of the 7th Schedule of Constitution of India, whereas, in the captioned Special Civil Application, the service conditions of such employees is put into question which is the sole domain of the State Authorities after taken into consideration the statutory rules framed under Art. 309 of the Constitution of India, those are Gujarat Civil Service (Leave) Rules, 2002 read with Entry no.
42 on list 2 of the 7th Scheduled of the Constitution of India. The case laws being relied upon by the petitioner to the captioned petition would not apply to the facts of the present case.
11. The answering deponent further submits that if the prayer is granted in as much as if the petitioners are supposed to be an deputation than such employees under deputation would be governed by the statutory rules of the parent department.
12. The answering deponent further Page 14 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022 C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022 submits that the Quality Improvement Program' does not have any statutory backing because if in violation the Government institute would attract penal consequences which the petitioners have not been able to demonstrate and also why the ambit of 'Quality Improvement program would be administrative in nature and backed by statutory force and rules."
20. Referring to above averments, it was submitted that the Rules, 2002 would have precedence over statutory conditions in view of Entry No.41 of List 2 of the 7 th Schedule of the Constitution of India in absence of any material to show that the said resolution is contrary to any provisions of the Central Act.
21. Having heard learned advocates for the respective parties and having gone through the relevant provisions of QIP policy as well as the AICTE Act, 1987 and Rules, 2002, it would be necessary to refer to the relevant provisions of the QIP policy, AICTE Act, 1987 Page 15 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022 C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022 and Rules, 2002.
: Quality Improvement Programme policy of All India Council for Technical Education :
"INTRODUCTION The Government of India launched the Quality improvement Programme in the year 1970. One of the main objectives of the programme is to upgrade the expertise and capabilities of the faculty members of the degree level institutions in the country. The programme is now being implemented and monitored by All India Council for Technical Education. In "Quality Improvement Programme" only sponsored teachers are eligible for admission to both Master's & Doctoral Degree Programmes, with the aim to enable the teachers to acquire Master's & Doctoral degrees and imbibe in them a culture of research and better teaching educational capabilities by exposing them to the environment of the institutes of study.
There are three main activities under QIP serving the faculty of degree level Engineering, Pharmacy & Polytechnic Institutions:
(i) Providing opportunities to faculty members of the degree-level engineering institutions to improve their qualification by offering admissions to Page 16 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022 C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022 Master's and Ph.D. degree Programme.
(ii) Organizing Short Term Courses at the Major QIP Centers for serving teachers.
(iii) Curriculum Development (CD) Cell activities which help to improve class room teaching and learning.
There are total 106 QIP Centers in the country under three main verticals.
Sl. Category Number of
No. Centre
1 QIP Engineering 83
2 QIP Pharmacy 13
3 QIP Polytechnic 10
MASTER'S AND DOCTORAL DEGREE PROGRAMMES Opportunities are provided for faculty members of AICTE recognized degree level institutions to improve their qualification, by offering admissions in Masters and Ph.D. degree programmes. Eligibilities:
1. Full time regular/ permanent faculty members of AICTE recognized Degree Level Colleges are eligible to apply.
2. The candidate should posses For Master's Degree Programme One year teaching experience at graduate level Page 17 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022 C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022 A Bachelor's degree in the appropriate branch For Ph.D. Degree Programme Three year teaching experience at graduate level A Master's degree in the appropriate branch
3. The candidate is selected and admitted, should be on deputation and his/her normal salary and allowances are to be paid by the parent institutions.
4. The candidate selected for admission under QIP will have to execute an undertaking to serve his/her parent institution for a minimum period of three years after completion of the programme."
: THE ALL INDIA COUNCIL FOR TECHNICAL EDUCATION ACT, 1987 :
"CHAPTER III POWERS AND FUNCTIONS OF THE COUNCIL
10. Functions of the Council-It shall be the duty of the Council to take all such steps as it may think fit for ensuring coordinated and integrated development of technical education and maintenance Page 18 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022 C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022 of standards and for the purposes of performing its functions under this Act, the Council may-
xxx
(h) formulate schemes for the initial and in-service training of teachers and identify institutions or centres and set up new centres for offering staff development programmes including continuing education of teachers;
(i) lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examinations;
(j) fix norms and guidelines for charging tuition and other fees;"
: GUIDELINES FOR STUDY LEAVE FOR THE FACULTY IN AICTE APPROVED INSTITUTIONS :
Guidelines for grant of Study leave to Teachers and other academic staff entering into service without M. Tech./Ph. D or other higher qualification in Degree/ Diploma level Technical Institutions are given below.
i) Study leave may be granted with Pay to the appointees such as Assistant Professor/Assistant Librarian/Assistant Director of Physical Education (Degree level) or in equivalent cadre (Diploma level), to pursue for study Page 19 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022 C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022 (M.E/M.Tech./ Ph. D) or research in the discipline directly related to his/her work.
(ii) The number of years to be put in after entry should be a minimum of three years in regular service including the probation period, keeping in mind the availability of teachers in the discipline and the vacant positions.
(iii) The paid period of study leave should be two/three years for Master Doctorial level respectively. Two years may be given in the first instance, extendable by one more year for Ph. D program, if there is satisfactory progress report by the Research Guide.
Care should be taken to see that the regular academic work is not disturbed while granting study leave.
Explanation: in computing the length of service, the time during which a person was on probation or engaged as a research assistant may be reckoned provided:
xxx
(vi) Study leave may be granted not more than twice during one's career. The maximum study leave admissible during the entire service should not exceed five years."
: Gujarat Civil Service (Leave) Rules, 2002 :
"57. Half Pay Leave : (1) (a) Government employee shall be entitled to Half Pay Page 20 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022 C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022 Leave at the rate of ten days for each half year's service. This shall be credited in advance to the leave account of the Government employee on first January and first July of every calendar year.
(b) If a Government employee is appointed during the half year, Half pay leave shall be credited to his leave account at the rate of 5/3 days for each completed calendar month of service. The Half pay leave at the credit of the Government employee on the close of the half year shall be carried forward to the next half year,
(c) All credit in the leave account shall be made for complete days, the fraction being rounded of to the nearest day.
(2) (a) The credit for the half year in which a Government employee is due for retirement from service or resigns shall be afforded only at the rate of 5/3 days per completed calendar month in the half year upto the date of retirement or resignation. If the leave availed of is more than the credit so due to him, necessary adjustment shall be made in respect of leave salary overdrawn, if any;
(b) When a Government employee is removed or dismissed from the service or dies while in service, credit of Half pay leave shall be allowed at the rate of 5/ 3 days per completed calendar month in the half year in which he was removed or dismissed from service or Page 21 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022 C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022 dies while in service. When the quantum of Half pay leave is in excess of the leave enjoyed, the over payment of leave salary shall be recovered.
77. Conditions for grant of study leave:
(1) Subject to the conditions specified in this Chapter, study leave may be granted to a Government employee with due regard to the exigencies of public service to enable him to undergo, in or out of India, a special course of study consisting of higher studies or specialised training in a professional or a technical subject having a direct and close connection with the sphere of his duty.
(2) Study leave may also be granted -
(a) for a course of training or study tour in which a Government employee may not attend a regular academic or semi-
academic course if the course of training or the study tour is certified to be of definite advantage to Government from the point of view of public interest and is related to sphere of duties of the Government employee;
(b) for the purpose of studies connected with the frame work or background of public administration subject to the conditions that
(i) the particular study or study tour should be approved by the authority competent to grant leave,
(ii) the Government employee should be Page 22 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022 C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022 required to submit, on his return, a full report on the work done by him while on study leave; and
(c) for the studies which may not be closely or directly connected with the work of a Government employee, but which are capable of widening his knowledge in a manner likely to improve his abilities as a Government employee and to equip him better to collaborate with those employed in other branches of the public service.
(3) Study leave shall not be granted unless
(a) It is certified by the authority competent to grant leave that the proposed course of study or training shall be of definite advantage from the point of view of public interest;
(b) It is for prosecution of studies in subjects other than academic or literary subjects; and
(c) The Department of Economic Affairs of the Ministry of Finance, Government of India agrees to the release of foreign exchange involved in the grant of study leave, if such leave is out of India.
(4) Study leave out of India shall not be granted for the prosecution of studies in subjects for which adequate facilities exist in India or under any of the schemes administered by the Department of Economic Affairs of the Ministry of Finance or by the Ministry Page 23 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022 C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022 of Education, Government of India. (5) Study leave shall not ordinarily be granted to a Government employee
(a) who has rendered less than five years' service under the Government; or
(b) who does not hold a gazetted post under the Government; or
(c) who is due to retire, or has the option to retire, from the Government service within the years of the date on which he is expected to return to duty after the expiry of the leave.
(6) Study leave shall not be granted to a Government employee with such frequency as to remove him from contact with his regular work or to cause cadre disbursed owing to his absence on leave. 78 Maximum period of study leave: The maximum period of study leave, which may be granted to a Government employee, shall be - (a) ordinarily twelve months at any one time which shall not be exceeded save for exceptional reasons; and (b) during his entire service, twenty-four months in all (inclusive of study leave granted under any other rules). Note The limit of twenty four months of absence includes the period of vacation.
84. Leave salary during study leave (1) During study leave, a Government employee shall draw leave salary equal Page 24 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022 C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022 to the amount admissible during half pay leave.
(2) The rate of exchange prescribed by the Union Government for the conversion of leave salary (other than admissible during the first one hundred twenty days of earned leave) shall apply to the leave salary during study leave."
22. This Court passed interim order dated 19.12.2016 in Special Civil Application No.21101/2016 and allied matters which reads as under :
"12. Under the circumstances, the petitioners are required to be granted the protection by way of interim relief in the following manner: 1.The respondent-State shall CONTINUE to pay full salary and allowances to all the four petitioners. 2.The respondent-State shall also pass necessary order treating the petitioners on deputation and communicate the same to QIP authorities, which is under the AICTE, of theSVNIT within a period of ONE WEEK from the date of receipt of this order. 3.The petitioners shall file an undertaking that eventually, if, they do not succeed in this proceeding, they shall repay the excess amount with NINE per cent interest per annum. 4.In wake of the above directions to the State Government, Respondent No.3, in all Page 25 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022 C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022 these petitions, will ACCEPT the fees of the petitioners.
7.0 RULE. Learned AGP wavies service of rule on behalf of Respondent Nos. 1 and
2. Direct service is permitted qua the rest."
23. Following the aforesaid order, various others orders were also passed protecting the salary of the petitioners.
24. In case of some of the petitioners, the authorities have also started recovery proceedings as under :
Details of the Cases Pending Because of Impugned Resolution Sr. Petition Name of the Matter No. No. Parties 1 SCA 21101 ASHUTOSH KESHAV To permit further of 2016 GIRI Studies on deputation with full salary 2 SCA 21102 DIGANT SUDHIRKUMAR To permit further of 2016 MEHTA Studies on deputation with full salary 5 SCA 21105 ALPESHKUMAR To permit further of 2016 HIRABHAI MAKWANA Studies on deputation with full salary 6 SCA 20691 HARSHAL SHARADBHAI To permit further of 2016 WANI Studies on deputation with Page 26 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022 C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022 full salary 7 SCA 20692 GHANSHYAMKUMAR To permit further of 2016 SAJJANKUMAR SAH Studies on deputation with full salary 8 SCA 20693 KAPESHKUMAR To permit further of 2016 KARSHANBHAI PATEL Studies on deputation with full salary 9 SCA 710 of TANK HARDIK To permit further 2018 BHARATKUMAR Studies on deputation with full salary 10 SCA 6776 of CHEVALI SANDEEP Recovery Due to 2018 SHAMBHULAL Impugned Resolution dated 03.02.2016 11 SCA 8475 of MAHARSHI Recovery Due to 2018 KISHOREBHAI BHATT Impugned Resolution dated 03.02.2016 12 SCA 8476 of CHOUDHARI HARSH Recovery Due to 2018 NATHUBHAI Impugned Resolution dated 03.02.2016 13 SCA 9015 of PATEL ASHISHKUMAR Recovery Due to 2018 PARSOTTAMDAS Impugned Resolution dated 03.02.2016 14 SCA 11602 NIMESH MANGUBHAI Recovery Due to of 2018 PATEL Impugned Resolution dated 03.02.2016 15 SCA 11220 VANVIRSINH To permit Further of 2018 JAGATSINH CHAUHAN Studies on deputation with full salary 16 SCA 13772 PATEL SUMITKUMAR To Grant full pay of 2018 SHYAMJIBHAI towards the Time of Further studies 17 SCA 14343 PATEL MITESH To Grant full pay of 2018 GOVINDBHAI towards the Time Page 27 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022 C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022 of Further studies 18 SCA 20116 MITTAL KALABHAI Recovery Due to of 2018 PEDHADIYA Impugned Resolution dated 03.02.2016 19 SCA 12141 RAVINDRA BHUPATRAI Recovery Due to of 2019 GADHIYA Impugned Resolution dated 03.02.2016
25. The Hon'ble Supreme Court in case of State of T.N. and another v. Adhiyaman Educational & Research Institute and others(supra) with regard to the question as to whether after coming into force of the All India Council for Technical Education Act, 1987, the State Government has power to grant and withdraw permission to start a technical institution as defined in the Act, 1987 held as under :
"12.The subject "coordination and determination of standards in institutions for higher education or research and scientific and technical institutions" has always remained the special preserve of the Parliament. This was so even before the Forty Second Amendment, since Entry 11 of List 11 even then was subject, among others, to Entry 66 of List 1. After the said Page 28 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022 C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022 Amendment, the Constitutional position on that score has not undergone any change. All that has happened is that Entry II was taken out from List 11 and amalgamated with Entry 25 of List Ill. However, even the new Entry 25 of List III is also subject to the provisions, among others, of Entry 66 of List 1. It cannot, therefore, be doubted nor is it contended before us, that the legislation with regard to coordination and determination of standards in institutions for higher education or research and scientific and technical institutions has always been the preserve of the Parliament. what was contended before us on behalf of the State was that Entry 66 enables the Parliament to lay down the minimum standards but does not deprive the State Legislature from laying down standards above, the said minimum standards. We will deal with this argument at its proper place.
13. We may now refer to the provisions of Articles 246, 248 and 254 in Part II of Chapter 1 which relates to the distribution of the legislative powers between the Parliament and the State Legislatures. It is not necessary to enter into a detailed discussion of these Articles since they have been the subject matter of various decisions of this Court. We may only summarise the effect of these Articles as has emerged through the judicial decisions, so far as it is relevant for our present discussion. While Article 246 states the obvious, viz. that Parliament has exclusive power to make law., with Page 29 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022 C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022 respect to any of the matters enumerated in List I and has also the power to make laws with respect to any of the matters enumerated in List 111, the State Legislature has exclusive power to make laws with respect to any of the matters enumerated in List II subject, of course, to the Parliament's power to make laws on matters enumerated in List I and List III. Parliament has also power to make laws on matters enumerated in List II for any part of the territory of India not included in a State. Article 248 vests the Parliament with the exclusive power to make any law not enumerated in the Concurrent List or the State List including the power of making any law imposing a tax not mentioned in those Lists. This is a residuary power of legislation conferred on the Parliament and is specifically covered by Entry 97 of list 1. In case of repugnancy in the legislations made by the Parliament and The State Legislatures which arises in the case of Legislations on a subject in List "ill, the law made by the Parliament whether passed before or after the law passed by the State Legislature shall prevail and to that extent, the law made by the Legislature of a State will be void. Where, however, the law made by the Legislature of a State is repugnant to the provisions of an carrier law made by Parliament or an existing law with respect to that matter, the law made by the Legislature of the State shall, if it has received the assent of the President, prevail in that State. However, this does not prevent the Parliament from enacting at any time any Page 30 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022 C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022 law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State. The repugnancy may also arise between a pre- Constitutional law made by the then Provincial Legislature which continues to be in force by virtue of Article 372 and the post-Constitutional law of Parliament in which case, the law made by the Provincial Legislature shall stand impliedly repealed to the extent of repugnancy to the law made by the Parliament.
14.According to some jurists, the repugnancy may also arise between a pre- Constitutional law made by the then Provincial Legislature which continues to be in force by virtue of Article 372 and the post Constitutional law of the Parliament in which case by virtue of the first part of Article 254 [1], the law made by the Parliament shall prevail, notwithstanding that the Provincial Legislature was competent to make the law prior to the commencement of the Constitution. This is the consequence of the relevant provision of Article 254 [1] which reads as follows:
"254 [1] Inconsistency between laws made by Parliament and the laws made by the Legislatures of States. - [1] If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact... the law made by Parliament, whether passed Page 31 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022 C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022 before or after the law made by the Legislature of such State... shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void."
44.What emerges from the above discussion is as follows:
[i] The expression "coordination" used in Entry 66 of the Union List of the Seventh Schedule to the Constitution does not merely mean evaluation. It means harmonisation with a view to forge a uniform pattern for a concerted action according to a certain design, scheme or plan of development. It, therefore, includes action not only for removal of disparities in standards but also for preventing the occurrence of such disparities. It would, therefore, also include power to do all things which are necessary to prevent what would make "coordination" either impossible or difficult. This power is absolute and unconditional and in the absence of any valid compelling reasons, it must be given its full effect according to its plain and express intention.
[ii] To the extent that the State legislation is in conflict with the Central legislation though the former is purported to have been made under Entry 25 of the Concurrent List but in effect encroaches upon legislation including subordinate legislation made by the Centre under Entry 25 of the Concurrent List or to give effect to Entry 66 of the Union List, it would be void and inoperative.Page 32 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022
C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022 [iii] If there is a conflict between the two legislations, unless the State legislation is saved by the provisions of the main part of clause [2] of Article 254, the State legislation being repugnant to the Central legislation, the same would be inoperative. [iv] Whether the State law encroaches upon Entry 66 of the Union List or is repugnant to the law made by the Centre under Entry 25 of the Concurrent List, will have to be determined by the examination of the two laws and will depend upon the facts of each case. [v] When there are more applicants than the available situations/seats, the State authority is not prevented from laying down higher standards or qualifications than those laid down by the Centre or the Central authority to short- list the applicants. When the State authority does so, it does not encroach upon Entry 66 of the Union List or make a law which is repugnant to the Central law.
[vi] However, when the situations/seats are available and the State authorities deny an applicant the same on the ground that the applicant is not qualified according to its standards or qualifications, as the case may be, although the applicant satisfies the standards or qualifications laid down by the Central law, they act unconstitutionally. So also when the Page 33 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022 C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022 State authorities derecognise or disaffiliate an institution for not satisfying the standards or requirement laid down by them, although it satisfied the norms and requirements laid down by the central authority, the State authorities act illegally."
26. In view of above legal position, the contention raised on behalf of the respondents that the impugned notification would be having force of statutory rule under Article 309 of the Constitution of India is not tenable as the provisions of the AICTE Act, 1987 and the guidelines framed thereunder would have to be followed and any inconsistency between the provisions of the Act, 1987 and the impugned resolution would be void as held by the Apex Court.
27. In view of above, the impugned resolution dated 3.2.2016 is required to be quashed and set aside as the same is contrary to the provisions of the AICTE Act, 1987. The Page 34 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022 C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022 provisions of the Rules 2002 would not be applicable to the petitioners who are eligible for pursuing further studies as per the QIP policy of AICTE as they would be granted study leave with full salary on deputation for duration of course up to maximum of 5 years. The provisions of the Rules 57, 77, 78 and 84 of the Rules, 2002 would be applicable in normal circumstances and conditions of Rule 77 for grant of study leave would be subjected to the provisions of the AICTE Act, 1987 as such Rules cannot override the provisions of the central Act as held by the Apex Court, if they are not consistent with the same.
28. Therefore, the impugned resolution is hereby quashed and set aside and the petitioners are entitled to get full salary and are to be considered on deputation to pursue further studies as per the QIP policy Page 35 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022 C/SCA/12926/2021 CAV JUDGMENT DATED: 23/09/2022 under the AICTE Act, 1987.
29. Rule is made absolute to the aforesaid extent. No order as to costs.
30. In view of above, Civil Applications also stand disposed of.
(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 36 of 36 Downloaded on : Fri Sep 23 21:48:32 IST 2022