Gujarat High Court
Raghavdan Bachubhai Kesariya vs State Of Gujarat on 11 March, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/6393/2021 JUDGMENT DATED: 11/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6393 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 6393 of 2021
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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RAGHAVDAN BACHUBHAI KESARIYA
Versus
STATE OF GUJARAT
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Appearance:
MR MEHUL SHARAD SHAH(773) for the Petitioner(s) No. 1
MR.KURVEN DESAI, AGP (N) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 11/03/2022
ORAL JUDGMENT
1. RULE returnable forthwith. Mr.Kruven Desai learned AGP waives service of notice of Rule on behalf of the respondent State.
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2. With the consent of learned advocates for the respective parties, the petition is taken up for final hearing.
3. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for a direction to the respondents to prepare a fresh provisional seniority list as on 01.01.2021 accepting the petitioner's CCC examination certificate as valid and include the name of the petitioner in the seniority list. It appears that pending the petition, due to the perception of the respondents that the petitioner has not passed a CCC examination from a recognized university, his services were terminated by an order dated 11.06.2021. Therefore, the amendment in the petition to challenge the order of termination too, was granted.
4. Facts in brief would indicate that the petitioner was selected as a Forest Guard on 05.04.2008 after a fixed period of five years of service that he rendered, he was appointed on a permanent post vide order dated 05.08.2013. The petitioner passed his Course Page 2 of 13 Downloaded on : Mon Mar 14 20:52:20 IST 2022 C/SCA/6393/2021 JUDGMENT DATED: 11/03/2022 on Computer Concept (CCC) from Dr. Babasaheb Ambedkar Open University on 02.01.2010. He was therefore appointed on the regular post in the pay grade of Rs.1800/- with the pay scale of Rs.5200- 20200/- with effect from 03.05.2013. A final seniority list of Forest Guards was prepared as on 01.01.2019 and vide letter dated 10.03.2021, the petitioner was shown at Sr. No.16 in the said list. A provisional seniority list was again prepared as on 01.01.2020 which was communicated by a letter of 12.03.2021 where the petitioner was shown at Sr. No.13. The seniority was calculated from 10.03.2015. A representation was made by the petitioner apprehending the adverse, since pointing out to the respondents that he has cleared the CCC examination and the exam center was recognized by the General Administration Department by Government Resolution dated 07.05.2010. Reliance was also placed on the Government Resolution dated 15.01.2020 wherein it was resolved that certificates issued by Dr. Babasaheb Ambedkar Open University Page 3 of 13 Downloaded on : Mon Mar 14 20:52:20 IST 2022 C/SCA/6393/2021 JUDGMENT DATED: 11/03/2022 were valid.
5. Reliance was placed on an order dated 19.09.2018 passed in Special Civil Application No.7400 of 2018.
The respondents did not consider the center of examination from the Dr. Babasaheb Ambedkar Open University as recognized center and therefore the petitioner lost his seniority as was evident from the communication dated 25.03.2021. He also faced termination from service by an order dated 11.06.2021 on the ground that the petitioner had not passed the examinations through the recognized university i.e. Dr. Babasaheb Ambedkar Open University. The petitioner was terminated on the ground that he has not passed his examination within a period of two years from which he was regularized in service and the examination center viz. T.C.Arts and J.V.Commerce College was not a recognized center.
6. Mr.Kurven Desai learned AGP for the State would support the order of termination and the position of seniority as reflected in the communication dated Page 4 of 13 Downloaded on : Mon Mar 14 20:52:20 IST 2022 C/SCA/6393/2021 JUDGMENT DATED: 11/03/2022 25.03.2021 on the ground that once the petitioner had failed to pass the examination within two years from the date of his regularization when the center from which the petitioner had undertaken its CCC examination, was a center of the Dr. Babasaheb Ambedkar Open University. It was not a recognized university, the order in which the seniority was reflected and so also the order of termination was justified.
7. Considering the submissions made by learned counsel for the respective parties, it is not in dispute that the question whether Dr. Babasaheb Ambedkar Open University could have been treated as a training institute recognized for the purposes of CCC examinations, a Division Bench of this Court in Letters Patent Appeal No.977 of 2019 vide an order dated 25.04.2019 had extensively considered the issue. The order reads as under:
"1 These Letters Patent Appeals arise out of a common oral order dated 31.01.2017 passed in the respective petitions by the learned Single Judge.
2 The facts and questions involved in these appeals Page 5 of 13 Downloaded on : Mon Mar 14 20:52:20 IST 2022 C/SCA/6393/2021 JUDGMENT DATED: 11/03/2022 have been dealt with by us in a group of Letters Patent Appeal Nos. 560 of 2019 dated 08.03.2019, in which we have passed the following order:
"1 All these appeals arise out of a common CAV order dated 31.01.2017 passed by the learned Single Judge in the respective petitions. The prayer by the respondent/ original petitioners was, that they be granted the benefit of higher pay-scale by accepting the certificates of they having passed the CCC examination from Dr.Babasaheb Ambedkar Open University.
2 The State, with a view to see that the employees of the government department obtain proficiency in computers, introduced a course on computer concepts, which was made compulsory not only for the purposes of promotion but for getting higher pay-scales. By a government resolution dated 30.09.2006, the examinations for computer course were to be conducted by the Industrial Training Institute (ITI) and by the Gujarat Council of Vocational Training.
3 Recognizing the fact that there was a vast need for improving the proficiency in computer skills of the state government employees and the scale on the basis of which such training and the examinations needed to be conducted, by a resolution dated 02.01.2009, the respondents issued another resolution by which one of the training institutes, namely Dr.Babasaheb Ambedkar Open University was recognized for the purposes of training and examination. Subsequently by a resolution dated 22.06.2010, some training centres of the institute were dropped. It is the case of the petitioners that the petitioners had appeared for their CCC examination and had obtained such certificates from the open University i.e. Babasaheb Ambedkar Open University. However, for the purposes of granting the benefit of higher pay- scale, certificates issued by such open university were not counted / recognized by the Page 6 of 13 Downloaded on : Mon Mar 14 20:52:20 IST 2022 C/SCA/6393/2021 JUDGMENT DATED: 11/03/2022 government. Purportedly, such a stand of the government was on the ground that the actual syllabus for the examination of CCC was of 100 marks and therefore the examinations that were conducted by the Babasaheb Ambedkar Open University were for 400 marks and therefore not in accordance with the prescribed procedure and the course of the syllabus stipulated by the government and therefore passing of such examinations through the University was not recognized.
4 The petitioners therefore were constrained to approach this Court for a declaration that their Certificates be considered as recognized certificates for the examinations that they have undertaken at the Dr.Babasaheb Ambedkar Open University. The learned Single Judge on consideration of the facts held that the grievance of the petitioners that their certificates obtained from the Dr.Babasaheb Ambedkar University were declared as invalid only on the ground that the examinations conducted by such University was a 400 marks examination and hence was treated to be unjust stand by the government.
5 Mr.Chintan Dave, learned Assistant Government Pleader, has taken us to the Government Resolutions dated 30.09.2006, 02.01.2006 and 22.06.2010 and vehemently contended that Dr.Babasaheb Ambedkar Open University was no longer recognized as a valid training institute for the purposes of conducting CCC Examinations. He has also taken us through the syllabus that the government prescribed for the purposes of training and examination of the CCC level and submitted that when the course duration was of 100 marks as stipulated in such resolution, conducting of such examinations by the Dr.Babasaheb Ambedkar Open University for 400 marks could not have been treated as recognized mode of obtaining such certificates.
6 Having given our anxious consideration to the Page 7 of 13 Downloaded on : Mon Mar 14 20:52:20 IST 2022 C/SCA/6393/2021 JUDGMENT DATED: 11/03/2022 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 examination it was not recognised by the respondent-State, 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 Page 8 of 13 Downloaded on : Mon Mar 14 20:52:20 IST 2022 C/SCA/6393/2021 JUDGMENT DATED: 11/03/2022 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 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 Page 9 of 13 Downloaded on : Mon Mar 14 20:52:20 IST 2022 C/SCA/6393/2021 JUDGMENT DATED: 11/03/2022 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 respondent-State 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 respondent- state to deny them the benefit after not having whispered once since the 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 Page 10 of 13 Downloaded on : Mon Mar 14 20:52:20 IST 2022 C/SCA/6393/2021 JUDGMENT DATED: 11/03/2022 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 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 Page 11 of 13 Downloaded on : Mon Mar 14 20:52:20 IST 2022 C/SCA/6393/2021 JUDGMENT DATED: 11/03/2022 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."
3 In view of the order dated 08.03.2019 passed hereinabove, for the reasons as afore stated, these appeals are also dismissed. In view of dismissal of the main appeals, the Civil Applications (For Stay) also stand disposed of with no order as to costs."
8. The reasons of the learned Single Judge were extensively reproduced in the order of the Division Bench.
9. It is brought to the notice of this Court by learned counsel Mr.Mehul Shah for the petitioner that the State has even implemented the judgment of the Division Bench by resolution dated 15.01.2020 which is placed on record to the petition (page 80).
10. For the reasons aforesaid therefore, the communication dated 25.03.2021 reflecting seniority of the petitioner and the order of termination dated 11.06.2021 are quashed and set aside. The respondents are directed to reinstate the petitioner Page 12 of 13 Downloaded on : Mon Mar 14 20:52:20 IST 2022 C/SCA/6393/2021 JUDGMENT DATED: 11/03/2022 with all the consequential benefits. The order shall be complied with within a period of eight weeks from the date of receipt of copy of this order.
11. The petition is allowed in the above terms. Rule is made absolute in the aforesaid terms.
12. In view of the disposal of the main petition, Civil Application for stay will also not survive and hence, the same is also disposed of.
(BIREN VAISHNAV, J) ANKIT SHAH Page 13 of 13 Downloaded on : Mon Mar 14 20:52:20 IST 2022