Gujarat High Court
Noratmal Khandelwal vs State Of Gujarat & 3 on 8 August, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/11051/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11051 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
=========================================================
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 ?
==========================================================
NORATMAL KHANDELWAL....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
==========================================================
Appearance:
MR VIRAL V DAVE, ADVOCATE for the Petitioner(s) No. 1
MR KRUTIK PARIKH, AGP for the Respondent(s) No. 1
MR BD KARIA, ADVOCATE for the Respondent(s) No. 2
MR VILAS G GOSWAMY, ADVOCATE for the Respondent(s) No. 4
MS KHYATI P HATHI, ADVOCATE for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 2 - 3
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 08/08/2016
ORAL JUDGMENT
Page 1 of 5
HC-NIC Page 1 of 5 Created On Wed Aug 10 03:30:57 IST 2016 C/SCA/11051/2010 JUDGMENT By this writ-application under Article 226 of the Constitution of India, the writ-applicant, a former Professor, has prayed for the following reliefs :
"(A) To admit this Special Civil Application.
(B) To give direction to respondent no.2 Institute to reinstate the petitioner with backwages and all allied benefits with interest at 8% with effect from 25.10.08 and also release his salary for the month of October, 2008, with interest at 8%.
(C) Any other relief which may be deemed fit be given."
The case of the writ-applicant may be summarised as under :
The writ-applicant joined the service of the respondent no.2 Institute as a Professor. He joined the service of the respondent no.2 on 3rd July 2007. The respondent no.2 put an end to the services of the writ-applicant on 25th October 2008.
It is the case of the writ-applicant that when his services were brought to an end, his age was 67. Under the regulations framed by the AICTE, he should have been continued in service on the post of Professor upto the age of 70. Having not continued the writ-applicant in service upto the age of 70, he has come with this writ-application.
Mr.Dave, the learned counsel appearing for the writ- applicant invited my attention to the decision taken by the All India Council for Technical Education dated 10th July 2007. It is in the form of an announcement. It is stated therein that in pursuance of its mandate to facilitate and promote technical Page 2 of 5 HC-NIC Page 2 of 5 Created On Wed Aug 10 03:30:57 IST 2016 C/SCA/11051/2010 JUDGMENT education in the country, the All India Council for Technical Education is pleased to announce the following decisions. We are concerned with the age relaxation announced by the All India Council for Technical Education. It reads as under :
"Age relaxation for Professor in Technical Education Institutions.
Keeping in view the paucity of qualified personnel at the level of Professors in technical education, it has been decided to relax the existing age limit of 65 years to 70 years for a period of 2 years after which the relaxation would be reviewed."
On behalf of the respondents, respective affidavits-in- reply have been filed, opposing this writ-application. The University, in its reply, has stated in para 6 as under :
"6. Without prejudice to what has been stated above, the petitioner has crossed the age of 65 years in October 2007 and the University did not grant permission to the appointment of the petitioner and consequently the institute passed an order to discontinue his services from 25.10.2008 onwards as stated in Annexure-B, page 9 annexed to the petition. However, on detailed examination of the Press Note submitted by the petitioner from the computer, the Dean of the Management Faculty opined that the extension upto the age of 70 years can be granted and consequently, the University granted permission by its letter dated 10.12.2008 on certain conditions, as can be seen from Annexure-D, page 11 requiring the Institute to make appointment latest before 19.6.2009 and the Institute has not reappointed and/or continued the petitioner in service and therefore the said permission also stands exhausted and the permission is of no effect now on the date on which the present petition was filed i.e. 17.8.2010. I say accordingly the petitioner has no claim now to seek reappointment."
Mr.Karia, the learned counsel appearing for the Page 3 of 5 HC-NIC Page 3 of 5 Created On Wed Aug 10 03:30:57 IST 2016 C/SCA/11051/2010 JUDGMENT respondent no.2 Institute has raised a preliminary objection as regards the maintainability of this writ-application on the ground that the writ-applicant has an alternative efficacious remedy to go before the Gujarat Educational Institutions Services Tribunal constituted under the Gujarat Educational Institutions Services Tribunal Act, 2006.
Having heard the learned counsel appearing for the parties and having considered the materials on record, I am of the view that the issue which has been raised in this writ- application should be adjudicated by the Tribunal referred to above.
The Gujarat Educational Institutions Services Tribunal Act, 2006 has been legislated to "consolidate and amend the laws relating to Educational Tribunals so as to bring about uniformity therein and to provide for the constitution of a tribunal for the purpose of determining disputes relating to conditions of service of the members of the teaching and non- teaching staff of the educational institutions in the State and for the matters connected therewith".
Sub-section (1) of Section 11 of the Act provides that "an employee aggrieved by an original order or appellate order or decision of the educational institution which is connected with the conditions of service of such employee or, as the case may be, the educational institution, may, within a period of sixty days from the date of such order or decision, appeal to the tribunal".
Sub-section (2) of Section 11 provides that
Page 4 of 5
HC-NIC Page 4 of 5 Created On Wed Aug 10 03:30:57 IST 2016
C/SCA/11051/2010 JUDGMENT
"notwithstanding anything contained in sub-section (1), the tribunal may entertain an appeal made to it after the expiry of the period of ninety days, if it is satisfied that the appellant has sufficient cause for not preferring the appeal within that period".
The writ-applicant has approached this Court as the Tribunal was not functional for want of availability of the President and Members at the relevant point of time. It is an undisputed fact that Tribunal has become operational from 8th May 2014. All the disputes raised before this Court can be adjudicated by the Tribunal. On the ground of alternative efficacious remedy being available to the writ-applicant, the writ-applicant deserves to be relegated to the alternative remedy. This Court has not expressed any opinion on merits of the case. All averments and contentions raised before this Court by both the sides shall be raised and adjudicated before the Tribunal in accordance with law.
The writ-application is disposed of accordingly. Rule discharged. Direct service is permitted.
(J.B.PARDIWALA, J.) MOIN Page 5 of 5 HC-NIC Page 5 of 5 Created On Wed Aug 10 03:30:57 IST 2016