Gujarat High Court
For Approval And Signature vs State Of Gujarat & on 28 June, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/15991/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15991 of 2004
With
SPECIAL CIVIL APPLICATION NO. 15992 of 2004
With
SPECIAL CIVIL APPLICATION NO. 15993 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
DALSUKHBHAI HARKHABHAI ROHIT....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
Appearance:
MR PA JADEJA, ADVOCATE for the Petitioner(s) No. 1
MR RAMNANDAN SINGH, ADVOCATE for the Petitioner(s) No. 1
MR SWAPNESHWAR GOUTAM AGP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 28/06/2017
ORAL JUDGMENT
Heard Mr. Ramnandan Singh, learned advocate Page 1 HC-NIC Page 1 of 39 Created On Tue Aug 15 20:22:38 IST 2017 C/SCA/15991/2004 JUDGMENT for the petitioners, and Mr. Goutam, learned AGP for the respondent - State.
2. The petitioners are aggrieved by resolution dated 16.5.1995 and corrigendum dated 26.6.2001 issued by the respondent No.1 - State. The petitioners are aggrieved by said resolution and corrigendum to the extent that the said resolution and corrigendum prescribe 26.9.1999 as the cut-off date for exemption from prescribed requirement with regard to qualification.
3. So far as factual background is concerned, it has emerged from the record that in September / October 1982, the respondent No.2 had invited applications from eligible candidates for the post of Assistant Lecturer.
3.1 The petitioners submitted their respective applications for the said post. The advertisement prescribed the qualification for the post viz. 2nd Class Diploma in respective discipline of Page 2 HC-NIC Page 2 of 39 Created On Tue Aug 15 20:22:38 IST 2017 C/SCA/15991/2004 JUDGMENT Engineering.
3.2 The petitioners were called for selection process and considering their qualification and experience, the petitioners came to be selected and were appointed in respondent No.2 college as Assistant Lecturer in October / November 1982. 3.3 Subsequently, somewhere in October 1990, the petitioners were upgraded to the post of Lecturer.
3.4 The respondents also granted revised pay scale attached to the post of Lecturer and the benefits as per the recommendations of Pay Commission to the petitioners w.e.f. January 1986.
3.5 In January 1992, the recruitment rules for the post of Lecturer came to be amended. By virtue of the amendment educational qualification (prescribed for the post of lecturer) was also Page 3 HC-NIC Page 3 of 39 Created On Tue Aug 15 20:22:38 IST 2017 C/SCA/15991/2004 JUDGMENT amended and requirement of 1st Class Bachelor's Degree (in respective Engineering discipline) was introduced.
3.6 The respondent - and even the petitioners - have claimed that the said modification in respect of educational qualifications came to be introduced and implemented in light of the recommendations of All India Council of Technical Education.
3.7 According to the petitioners, the respondent No.1 issued another resolution on 16.5.1995. Under the said resolution dated 16.5.1995, the respondent No.1 introduced 20.9.1989 as the cut- off date for the purpose of implementation of amended recruitment rules.
3.8 According to the petitioners, the said resolution dated 16.5.1995 provided that those lecturers who were appointed upto 20.9.1989 would be eligible for senior scale. Meaning thereby, Page 4 HC-NIC Page 4 of 39 Created On Tue Aug 15 20:22:38 IST 2017 C/SCA/15991/2004 JUDGMENT such persons were exempted from revised qualification.
3.9 The petitioners have claimed that when they completed 8 years of service on the post of Lecturer, they acquired eligibility for senior scale of pay, but the said benefit was not granted to the petitioners.
3.10 According to the petitioners, the said benefit is not granted to the petitioners on the ground that they do not possess the revised qualification which have been introduced w.e.f. 20.9.1989.
3.11 The petitioners have also claimed that the amended requirement was enforced against them and the benefit of senior pay scale was denied on the ground that the petitioners did not possess 1st Class Degree in their respective Engineering discipline.
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3.12 In this view of the matter, the petitioners are aggrieved by the cut-off date which came to be introduced vide resolution dated 16.5.1995 and corrigendum dated 26.6.2001.
3.13 The petitioners have also claimed that the respondents had granted exemption - from the amended requirement - viz. 1st Class Bachelor's degree in respective engineering discipline - in respect of the persons who wee appointed / promoted or upgraded as Lecturer before 1.1.1996, however, the respondents subsequently withdrew the exemption. The petitioners are aggrieved by the withdrawal of said exemption.
3.14 The petitioners have mentioned chronology of the resolutions issued from time to time viz. G.Rs. Dated 16.5.1995 and 20.6.2001 and 26.6.2001 The petitioners have narrated said details and alleged that:-
"2.4 Petitioner states that in the year 1995 another Government Resolution dated 16.05.1995 came to be issued. In the said Government Resolution, it was for the first time provided that the Lecturers who were appointed by the Competent Authority up to 20.09.1989 Page 6 HC-NIC Page 6 of 39 Created On Tue Aug 15 20:22:38 IST 2017 C/SCA/15991/2004 JUDGMENT would be eligible for the benefit of senior scale were exempted from the obligation of revised qualification prescribed by All India Council for Technical Education under its Circular dated 20.09.1989. That those persons who were appointed by the competent authority as Lecturer after the aforesaid cut off date would not be eligible for the purpose of career advancement scheme, senior scale and selection grade.
2.5 In other words, by virtue of the aforesaid Government Resolution, the State Government for the first time prescribed the cut off date for the benefit of Senior scale etc., A copy of the Government Resolution dated 16.05.1995 is produced at Exhibit "A"
to this petition.
2.6 Petitioner states that on 20.06.2001 the pay scales of the Lecturers, by virtue of the Government Resolution, came to be revised with effect from 01.01.1996. It was specifically mentioned in the said Government Resolution dated 20.06.2001 that the said benefit of revision of pay scales would be applicable to all the lecturers, in respect of amended recruitment rules. It was also mentioned in the said Resolution that all those persons, who were in service prior to January 1, 1996 and appointed as per the said recruitment rules would also be entitled to the benefit of the career advancement scheme, senior scale etc., In other words, it was mentioned in no uncertain terms, that a person who is appointed prior to 01.01.1996 and who is in service would be entitled for the benefit of senior scale and other benefits irrespective of the cut~off- date provided in the Government Resolution dated 16.05.1995. The language of the Government Resolution dated 20.06.2001 is very clear which provides that the person who were appointed as Lecturer on the basis of their qualifications at the time of their appointment would be exempted from the requirements of amended Recruitment Rules. Thus in substance by virtue of the said Government Resolution the petitioner was entitled to the benefit of senior scale. However within a short span of six days a corrigendum came to be issued whereby the benefits granted by virtue of the aforesaid Government Resolution dated 20.06.2001 came to be curtailed. In other words, the benefit granted by the aforesaid Government Resolution dated 20.06.2001 came to be withdrawn by issuing a Corrigendum dated 26.06.2001. 2.7 Thus in substance, by virtue of the said resolution of the government dated 20.06.2001, petitioner was entitled to the benefit of senior scale. However within six days the effect of the Government Resolution dated 20.06.2001 came to be wiped out by issuing Corrigendum dated 26.06.2001. In other words, all the benefits granted by virtue of the earlier Government Resolution dated 20.06.2001 came to be withdrawn by issuing a Page 7 HC-NIC Page 7 of 39 Created On Tue Aug 15 20:22:38 IST 2017 C/SCA/15991/2004 JUDGMENT corrigendum dated 26.06.2001. By virtue of issuing the said corrigendum, the claim of the petitioner for the senior scale came to be restored to its file. A copy of the Resolution dated 20.06.2001 and corrigendum dated 26.06.2001 are annexed hereto and marked as Exhibit "E" to this petition."
4. In this background, Mr. Ramnandan Singh, learned advocate for the petitioners contended that since the petitioners were appointed prior to the amendment in the recruitment rules, the effect of subsequent amendment cannot and should not deprive them of the benefits which would be available to them according to the rules which were enforced at the time of their appointment. Mr. Singh, learned counsel, further submitted that from the resolution dated 20.6.2001, it comes out clearly that the persons who were appointed as Lecturer on the basis of the qualifications applicable at the time of appointment would be exempted from the requirement prescribed by the amended provision with regard to qualifications and the said exemption came to be withdrawn retrospectively. He would, therefore, submit that the exemption which created right in favour of the petitioners Page 8 HC-NIC Page 8 of 39 Created On Tue Aug 15 20:22:38 IST 2017 C/SCA/15991/2004 JUDGMENT could not have been withdrawn retrospectively. Learned advocate for the petitioners would further submit that the corrigendum dated 20.6.2001 is discriminatory and therefore also, the said corrigendum deserves to be quashed and declaration that the cut-off date will not be applicable in case of the petitioners deserve to be granted. He would also submit that the subsequent amendment prescribing the cut-off date has no nexus with the object sought to be achieved by the Government and therefore, there was no rational behind applying the amendment in the recruitment rules with retrospective effect.
5. Submissions by learned advocate for the petitioners are opposed by learned AGP. He submitted that the cut-off date is neither irrational nor discriminatory. Learned AGP further submitted that the petitioners have conveniently misconstrued the provision under the resolution issued in February 1991, inasmuch as the petitioners have overlooked the expression Page 9 HC-NIC Page 9 of 39 Created On Tue Aug 15 20:22:38 IST 2017 C/SCA/15991/2004 JUDGMENT "regular appointment as Lecturer, which is the primary requirement under Clause 9 which makes provision for carrier advancement". He further submitted that while recommending revised pay scale for different posts, AICTE also prescribed revised qualifications in respect of various posts for which revised pay scales were recommended and that therefore, the revised qualifications would be attached to the revised pay scale and the petitioners cannot claim that the requirement of prescribed qualification should be devoid and the pay scale should be made available without insisting for the requirement of educational qualifications. He further submitted that the decision to grant or to decline any exemption or to withdraw exemption is an administrative decision and within the realm of the discretion and authority of the Government. He also submitted that the exemption can be withdrawn by the Government and the claim that the Government has withdrawn the exemption retrospectively is incorrect. Mr. Goutam, learned Page 10 HC-NIC Page 10 of 39 Created On Tue Aug 15 20:22:38 IST 2017 C/SCA/15991/2004 JUDGMENT AGP, relied on paragraph Nos.7 to 12 of the reply affidavit wherein the deponent, Dy. Director of Technical Education Department, has averred and stated that:-
"7. I say and submit that the another Government Resolution was issued on 16/5/1995 whereby cut-off implementing to the recruitment rules with retrospective effect from 20/9/1989. The Government of Gujarat, Education Department vide Resolution dated. 16/5/1995, in which cut-off date 20/9/1989 is prescribed for qualification of Lecturer for getting senior scales. AICTE statutory body of the Government of India made recommendations for revision of pay-scales on 20/9/1989, which is marked and annexed at Annexure "A" to affidavit in reply.
8. I say and submit that the Government of Gujarat has accepted the recommendations vide resolution dated. 21/2/1991 with Annexure-"B". Thus qualification prescribed is in force from 20/9/1989 onwards and the same was a cut off date in resolution dated. 16/5/1995.
9. I say and submit that the Government of Gujarat, Education Department framed recruitment rules for Lecturers for Polytechnic. Accordingly, candidate should possess I class Bachelor's Degree in Engineering/Technology.
10. I say and submit that in Government Resolution dated. 20/6/2001 which is Annexure: "E" of the Petition page No: 47 in where clause 1.4 was deleted vide Corrigendum dated. 26/6/2001, as it was not recommended in AICTE notification dated. 30/12/1999, which marked at Annexure: III to this affidavit in reply.
11. I say and submit that the senior scales is not sanctioned as per preventing rules & resolutions, further more, Senior scale and Selection Grade are the carrier advancement and meant for improving quality of teachers. Government has introduced a scheme for improving qualification of polytechnic teachers, but petitioner has not came forward to improve qualification.
12. I say and submit as the petitioner is possessing qualification of Diploma Mechanical Engineer, II Class and having four years experience and the requisite qualification for the lecturers is first class Bachelor's Degree in appropriate branch of Page 11 HC-NIC Page 11 of 39 Created On Tue Aug 15 20:22:38 IST 2017 C/SCA/15991/2004 JUDGMENT Engineering/Technology its equivalent qualification of a recognized University or a first class Master's Degree or its equivalent qualification in appropriate branch of study for teaching posts in humanities or Science of a recognized University."
5.1 So as to support his submission, learned AGP relied on the decisions in case of P.D.Aggarwal & Ors. v. State of U.P. & Ors. [(1987) 3 SCC 622] and in case of Registrar General of India & Anr. v. V. Thippa Setty & Ors. [(1998) 8 SCC 690].
6. I have considered rival submissions and I have also taken into account the submissions in the petitions as well as the reply affidavit. I have also considered the resolutions including the recommendations by AICTE.
7. It would be convenient to summarize undisputed facts:-
[a] It is not in dispute that the petitioners came to be appointed as Assistant Lecturer with respondent No.2 college in or around October 1982.
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[b] It is also not in dispute that the
petitioners possess 2nd Class Diploma in
Mechanical Engineering and neither on they day when they were upgraded as lecturer nor at the time when AICTE notified the recommendation nor at the time when government adopted and applied the recommendations, the petitioners possessed 1st Class Degree in respective Engineering discipline.
[c] It is also not in dispute that upon completion of service of 8 years, the petitioners came to be upgraded as Lecturer in October 1990. [d] It is also not in dispute that AICTE recommended/notified revised pay sale and revised qualifications on 20.9.1989.
The recommendations by AICTE for revision in pay scale was coupled with revision in qualifications. Meaning thereby, implementation of AICTE recommendations with regard to revision in pay scale would enjoin enforcement of amended qualification criteria and that would be applicable simultaneously with the revision in Page 13 HC-NIC Page 13 of 39 Created On Tue Aug 15 20:22:38 IST 2017 C/SCA/15991/2004 JUDGMENT requirement of qualifications in respect of post of lecturer/Senior Lecturer, Head of Department, Principal and other posts covered under the AICTE's recommendations dated 20.9.1989. [e] It is also not in dispute that vide said recommendations dated 20.9.1989, the AICTE recommended that the educational qualification for the post of Lecturer should be 1st Class Degree in respective Engineering discipline. [f] It is also not in dispute that the respondent No.1 Government issued resolution dated 20.2.1991 whereby the respondent Government adopted said recommendations and revised the pay scales and qualifications and brought them on par with recommendations by AICTE.
7.1 The revision in pay scale introduced vide GR dated 21.2.1991 was made effective from 1.1.1986.
The said GR prescribed, inter alia, that:-
"Recruitment and Qualifications:-
6. Recruitment of teachers at the level of lecturers shall be from those who qualify through a qualifying examination details of which will be developed by the Government keeping in view the recommendations of All India Council for Technical Education (AICTE). Until this operational mechanism is developed, the existing Page 14 HC-NIC Page 14 of 39 Created On Tue Aug 15 20:22:38 IST 2017 C/SCA/15991/2004 JUDGMENT procedure of requirement will continue in relaxation of this requirement.
7(a) Appointment to the posts of Lecturers, Head of Department, Principals shall be by open selection on the basis of merit as per prescribed qualifications and experience. The constitution of selection committee will be made by the Government in the light of recommendations of All India Council for Technical Education. The existing procedure will remain in force till this is done.
(c) The qualification and experience prescribed for various cadres of posts are given in Annexure-III. 8(b) The existing lecturers who do not possess these qualifications mentioned at (a) above or who might be recruited in future without these qualifications will be eligible for benefit as in 8(a) above only in service for the purpose of placement in senior scale and selection grades as and when they acquire these qualifications, but they will not be eligible for advance increments.
(c) Existing lecturers who possess these qualifications will also be eligible only for the benefit in service for the purpose of placement in senior scale and selection grade.
9. Career Advancement:
Lecturer (Senior Scale) Every lecturer will be placed in senior scale of Rs.3000-5000 if he has
(a) completed 8 years of service after regular appointment as Lecturer with relaxation of service as provided in para 8 above;
(b) participated in two refresher courses/summer/ winter institutes each of approximately four week's duration or in other comparable continuing education programmes approved by All India Council for Technical education;
(c) to his credit consistently minimum "satisfactory"
performance appraisal reports.
Every lecturer in the existing pay scale who has completed 8 years of service as the Lecturer on 1st January, 1986 will be placed through a process of screening/selection as indicated in para 14 below, in the scale of Rs.3000-5000. The benefit of service provided in para 8 above will be available for the initial placement also.
10. Lecturer (Selection Grade):
Every lecturer in the senior scale of Rs.3000-5000 will be placed in the selection grade of Rs.3700-5700 through Page 15 HC-NIC Page 15 of 39 Created On Tue Aug 15 20:22:38 IST 2017 C/SCA/15991/2004 JUDGMENT a process of screening/selection as indicated in para 14, below, if he
(a) has completed 8 years of service in the Senior scale or if he has at least 8 years of service as a lecturer in Polytechnic/Engineering College and has a 'Total Service' of not less than 16 years.
'Total Service' as mentioned above will be reckoned as duration of service as Lecturer and/or Lecturer (Senior Scale) in Engineering College/Polytechnic PLUS 4/5th of duration of service as Assistant Lecturer and/or Demonstrator, Forman, Senior Instructor in the existing pay scale of Assistant Lecturers in Engineering College/Polytechnic after acquiring the requisite qualification and experience for the post of Lecturer in Polytechnic/Engineering College;
(b) has attended two refresher courses/summer/winter institutes or other comparable continuing education programmes approved by the All India Council for Technical Education after 8 years' service as Lecturer/Lecturer Senior Scale;
(c) has to his credit consistently minimum "good" performance apprisal reports;
(d) possesses qualifications as per existing Recruitment Rules for the post of Head of Department.
11. For the purpose of placement of lecturer in the senior scale and selection grade, the corresponding number of posts held by them will be upgraded. Placement in Senior Scale/Selection Grade through Career Advancement alongwith the provisions of the para 8 above being personal to individual teachers, shall neither invite the stepping up as per inter-se seniority nor enable advancement in seniority in the cadre of lecturer." (emphasis supplied) 7.2 So far as the post of Lecturer is concerned, the said GR dated 21.2.1991 contains below quoted provisions:-
1. Lecturer Rs.700-1400 Rs.2200-75-2800-100-4000 Rs.700-1600 Page 16 HC-NIC Page 16 of 39 Created On Tue Aug 15 20:22:38 IST 2017 C/SCA/15991/2004 JUDGMENT 7.3 Under the same GR dated 21.2.1991, the Government, after taking into account the qualifications recommended by the AICTE prescribed below mentioned qualification for the post of Lecturer:-
Lecturer 1st Class Bachelor's Degree in appropriate branch of engineering/technology. OR 1st Class Master's degree in appropriate branch of study for teaching posts in humanities and sciences.
7.4 Having issued the said GR dated 21.2.1991, the Government issued resolution dated 16.5.1995.
So as to appreciate and decide the controversy and dispute raised by the petitioners, it is necessary to closely consider the said resolution dated 16.5.1995, which reads thus:-
" :: RESOLUTION ::
1. Para No. 3 in G .R. Education Department No.TEM- 1089-C-860~GH, dt. 4-8-94 may be replaced by the following para :
"This representation was under active consideration of Govt. for sometime past. Government is now pleased to delete the conditions mentioned in 10(d) of the appendix, and note (i) of the annexure I and the words"
see note (i) below'' below serial No.4 of annexure I of the G. R. dt. 21.2.91 with effect from l-l-86".
2. The Government is also pleased to decide that the [existing lecturers who were appointed by the Competent authority upto to 20-9-89 and who are eligible for the benefits of career advancement as Lecturer senior scale/selection grade, are exempted from the application of revised qualifications prescribed by AICTE under its Page 17 HC-NIC Page 17 of 39 Created On Tue Aug 15 20:22:38 IST 2017 C/SCA/15991/2004 JUDGMENT circular dt. 20-9-1989. The qualification prescribed by the AICTE under its circular dated 20-9-89, for the above purpose is as shown at Annexure-I. This issues with the concurrence of the F.D. vide its note dt. 23-2-95 on this Department's file of even number." (emphasis supplied) 7.5 On plain reading of the said GR dated 16.5.1995, it emerges that the Government clarified that the persons who were appointed upto 20.9.1989 as Lecturer by the competent authority in accordance with the procedure applicable at the relevant time and who were eligible for the benefit of Career Advancement as Lecturer senior scale / senior grade would be exempted from the application of revised qualification prescribed by AICTE under its circular dated 20.9.1989. The said resolution dated 16.5.1995 also clarified that the qualifications prescribed by the AICTE vide circular dated 20.9.1989 will be applicable only to the Lecturers recruited after 20.9.1989. 7.6 Thereafter, the respondent Government issued another resolution dated 20.6.2001. Clause Nos.1.2, 1.3 and 1.4 are relevant for the purpose Page 18 HC-NIC Page 18 of 39 Created On Tue Aug 15 20:22:38 IST 2017 C/SCA/15991/2004 JUDGMENT on hand. Therefore, they are quoted hereinbelow:-
"1.2 Where qualifications and experience prescribed for a post in this pay revision are higher than the qualifications and experience prescribed by AICTE for that post prior to this revision,
i) the revised qualifications and experience will be applicable only for new recruits
ii) for open selection to a higher cadre position through advertisement existing candidates presently working in a lower position writ be exempted from the prescribed higher qualification and experience to the extent that they will be required to possess at least the qualification and experience prescribed by AICTE prior to this pay revision. This relaxation will be available only for a period of 5 years from the date of issue of this resolution. Thereafter, existing candidates must also possess the qualifications and experience prescribed in this orders.
1.3 Teachers already in service prior to January 1, 1996 and who at the time of their recruitment possessed only a second class in their degree at Bachelor's or Master's level (but met all the qualifications requirements prescribed by AICTE at the time of their recruitment) shall be exempted from the requirement of First Class for the Degree they had at the time of their recruitment. 1.4 Teachers already in service prior to January 1, 1996 and appointed as teachers as per State Government's Recruitment Rules prior to the establishment of AICTE and who at the time of their recruitment possessed only a second class in their diploma level shall also be exempted from the requirement of First Class bachelor's Degree in appropriate branch of Engineering/technology."
(emphasis supplied) 7.7 Above mentioned GR dated 20.6.2001 was followed by corrigendum dated 26.6.2001. The said corrigendum is also crucial for deciding the grievance raised by the petitioners. Therefore, the corrigendum is quoted hereinbelow:-
"CORRIGENDUM:
The State Government has sanctioned revised pay scales Page 19 HC-NIC Page 19 of 39 Created On Tue Aug 15 20:22:38 IST 2017 C/SCA/15991/2004 JUDGMENT to teacher in Diploma level technical institutions as per All INDIA Council for Technical Education letter Dt. 30-12-99 by G.R.SCT-1099-1887-GH Dated 20-6-2001. Para- 1.4 mentioned in Annexure-III of the said G.R. (i.e. Teachers already in service prior to January 1, 1996 and appointed as teachers as per state Governments Recruitment Rules prior to the establishment of AICTE and who at the time of their recruitment possessed only a second class in their diploma level shall also be exempted from the requirement of First Class bachelors Degree in appropriate branch of Engineering/Technology) is hereby deleted." (emphasis supplied)
8. From above mentioned chronology and provisions, it becomes clear that the AICTE recommended revision in the pay scales in respect of various posts including the post of Lecturer. 8.1 The said recommendations came to be notified by the AICTE vide its circular / notification dated 20.9.1989.
8.2 While recommending revision in pay scale for various posts including the post of Lecturer, AICTE also recommended revision in respect of educational qualifications for those posts i.e. in respect of the posts for which it recommended revision in pay scale.
8.3 The revision in respect of educational
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qualifications, which came to be prescribed /
amended by AICTE, included post of Lecturer as well.
8.4 The erstwhile minimum requirement i.e. the requirement / qualification which was in force prior to said recommendation/revision was 2nd Class Diploma in respective Engineering discipline and 8 years experience. However, by virtue of the recommendation by AICTE, the said requirement came to be amended. The amended requirement (which came to be introduced alongwith revision in pay scales) required 1st Class Bachelor's Degree in respective Engineering discipline.
8.5 The respondent State adopted the said recommendations/amendment in respect of qualifications and revision in pay scales and notified it vide GR dated 21.2.1991. Consequently, the said amendment in qualification and revision in pay scales become effective from Page 21 HC-NIC Page 21 of 39 Created On Tue Aug 15 20:22:38 IST 2017 C/SCA/15991/2004 JUDGMENT 1.1.1996.
8.6 Consequently, when the pay scales attached to the post of Lecturer came to be revised vide GR dated 21.2.1991, the qualifications for the post of Lecturer also came to be revised and amended from 2nd Class Diploma to 1st Class degree in respective Engineering discipline. 8.7 Undisputedly, the petitioners do not possess the said qualification.
8.8 After issuing the GR dated 21.2.1991, the Government issued GR dated 16.5.1995 and clarified that the revised qualifications will not be applicable to existing Lecturers who were appointed by the competent authority upto 20.9.1989.
8.9 On this count, it is relevant to recall and take note of an undisputed fact viz. the petitioners were not promoted/appointed or upgraded to the post of lecturer prior to Page 22 HC-NIC Page 22 of 39 Created On Tue Aug 15 20:22:38 IST 2017 C/SCA/15991/2004 JUDGMENT 20.9.1989 (they were upgraded in October 1990).
9. In this view of the matter, the petitioners cannot draw any support, either from the resolution dated 21.2.1991 or from the resolution dated 16.5.1995. Neither the resolution dated 21.2.1991 nor the resolution dated 16.5.1995 granted any exemption, except clarifying that the amended qualification criteria will not be applicable to the persons appointed upto the date of AICTE's notification i.e. upto 20.9.1989 from the requirement related to or prescribed for qualification for the post of Lecturer. 9.1 Having regard to the fact that the AICTE revised the pay scales and simultaneously prescribed required qualifications for the respective posts including the post of Lecturer vide notification dated 20.9.1981. The State Government provided, under both the resolutions i.e. GR dated 21.2.1991 and 16.5.1995, that the condition and requirement related to Page 23 HC-NIC Page 23 of 39 Created On Tue Aug 15 20:22:38 IST 2017 C/SCA/15991/2004 JUDGMENT qualifications will be applicable on and from 20.9.1989 i.e. the date of notification by AICTE. 9.2 In consonance with the said declaration, the government also clarified that the said condition will not be applicable for the persons appointed as Lecturer before 20.9.1989.
9.3 The petitioners are, undoubtedly, not covered by the said explanation or clarification, inasmuch as none of the petitioners was appointed as Lecturer upto (i.e. on or before) 20.9.1989. According to their own claim, the petitioners came to be upgraded in October 1990.
10. It appears that in view of such specific and clear declaration by the State Government in above mentioned resolutions, the petitioners thought of taking recourse to the resolution issued by the government on 21.2.1991.
10.1 Actually, even the said resolution dated
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21.2.1991 does not grant any exemption or benefit which can be of any assistance to the petitioners.
10.2 The resolution dated 21.2.1991 merely clarified that the revision in pay scale will be effective from 1.1.1986.
10.3 Even clause 8(b) thereof clarified that the existing lecturers who did not possess the revised qualifications may be considered "only for the purpose of placement in senior scale, but the selection grade would be available and would be granted only when they acquired the revised / amended qualification".
10.4 Thus, even the said provision and other provision under said Resolution dated 21.2.1991 postulated that for deriving benefit of senior scale the amended qualification must be acquired. It is not the case even of the petitioners that they have acquired/they possess the qualification Page 25 HC-NIC Page 25 of 39 Created On Tue Aug 15 20:22:38 IST 2017 C/SCA/15991/2004 JUDGMENT revised/amended by AICTE and adopted by government w.e.f. 20.9.1989.
10.5 It is also relevant that clause 9 prescribe that the benefit of senior scale for the purpose of carrier advancement would be available to the "Lecturer" on completion of 8 years of service "after regular appointment as Lecturer". Thus, the said clause would also not confer any benefit to the claimants for the reason that the said clause 9 cannot be divorced from the clause 8(b) and the said clause 9 cannot be read in isolation and also for the reason that the said clause 9 require completion of 8 years of service on the post of / in the cadre of "Lecturer" (that too after regular appointment as Lecturer) whereas the petitioners were "upgraded" as lecturer in 1990 and not completed minimum length of service to claim any benefit.
10.6 Besides this aspect, it is also relevant to note that the provision under the GR related to Page 26 HC-NIC Page 26 of 39 Created On Tue Aug 15 20:22:38 IST 2017 C/SCA/15991/2004 JUDGMENT career advancement as prescribed under Clause 9 of GR dated 21.2.1991 makes it clear that the said clause takes in its fold every "Lecturer" who had "completed 8 years of service "after regular appointment" as Lecturer". At this stage, it is necessary to recall that the petitioners came to be appointed as Assistant Lecturer in or around October 1982 whereas they were upgraded as Lecturer in October 1990.
10.7 Thus, even otherwise, the petitioners did not fulfill the condition prescribed by GR dated 21.2.1991 including the provision under clause 9. It is pertinent that the petitioners were not regularly appointed or even upgraded, as lecturer, before - or even upto - 20.9.1989. The petitioners were upgraded as Lecturer in October 1990. Thus, the petitioners did not fulfill the said condition also. Thus, on both counts, the contentions by the petitioners fail.
11. Learned advocate for the petitioners, having Page 27 HC-NIC Page 27 of 39 Created On Tue Aug 15 20:22:38 IST 2017 C/SCA/15991/2004 JUDGMENT realized the said position, shifted gear and sought support from the resolution dated 20.6.2001.
11.1 Having clarified by above mentioned aspects, the Government issued another GR dated 20.6.2001 wherein at clause 1.4, the Government clarified that the teachers who are already in service prior to January 1996 and have been appointed as teachers as per the State Government's recruitment rules shall be exempted from the requirement of 1st Class Bachelor's Degree in appropriate branch of Engineering / technology. The petitioners have heavily relied on the said clause 1.4 in GR dated 20.1.2001.
11.2 What is pertinent is the fact that within very short span of only six days, the Government immediately issued corrigendum and clarified that the said clause No.1.4 under GR dated 20.6.2001 stands deleted.
11.3 Now, so far as the said resolution dated
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20.6.2001 is concerned, it is relevant to take into account the fact that the said resolution dated 20.6.2001 came to be issued in light of, as well as in furtherance and in pursuance of, another notification issued by AICTE on 30.12.1999.
11.4 It should be recalled that the earlier notifications revising pay scale and amending qualification were issued by AICTE on 20.9.1989. 11.5 The resolution dated 20.6.2001 specifically mentions that "the Government of India and All India Council for Technical Education (AICTE) have decided to implement the revised pay scales as per the 5th Pay Commission's Recommendations to teachers and diploma level technical institutions vide its letter dated 30.12.1999 ....." 11.6 It was with reference to the said recommendation / decision by AICTE and Government of India that the State Government issued GR Page 29 HC-NIC Page 29 of 39 Created On Tue Aug 15 20:22:38 IST 2017 C/SCA/15991/2004 JUDGMENT dated 20.6.2001. However, the said GR dated 20.6.2001 also contained clause 1.4 on which the learned advocate for the petitioners ultimately placed reliance.
11.7 However, since the said clause 1.4 was not in consonance with the communication/recommendation by AICTE vide its communication dated 30.12.1999, the State Government immediately i.e. within six days declared that the said clause 1.4 in GR dated 20.6.2001 stands deleted.
11.8 The said aspect is also clarified by Dy. Director of Technical Education in his affidavit dated 6.4.2005 wherein it is averred and clarified that, "I say and submit that in Government Resolution dated 20.6.2001 which is at Annexure - E to the petition page No.47 in where clause 1.4 was deleted vide corrigendum dated 26.6.2001, as it was not recommended in AICTE notification dated 30.12.1999...".
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12. Under the circumstances, the contention that the right accrued to the petitioners could not have been withdrawn with retrospective effect is apparently misconceived and unsustainable. 12.1 Actually, any right did not accrue to the petitioners at any stage under the notification/GR dated 21.2.1991 and/or 16.5.1995 and/or 20.6.2001. The said contention is raised on the premise or on the understanding or presumption that by virtue of GRs dated 21.2.2991 certain right accrued to the petitioners and the right which, presumably, accrued under said GR came to be withdrawn; and the said right was withdrawn retrospectively 12.2 Foregoing discussion has brought out that under said notifications or GR dated 21.2.1991 and/or 16.5.1995 any exemption from the amended qualification was never granted.
12.3 Even the resolution dated 16.5.1995 clarified Page 31 HC-NIC Page 31 of 39 Created On Tue Aug 15 20:22:38 IST 2017 C/SCA/15991/2004 JUDGMENT that the said requirement would not be applicable to persons appointed as Lecturer upto 20.9.1989. 12.4 Thus, even otherwise, the said resolution or said clarification would not be available to the petitioners and would not render assistance to the petitioners because the petitioners came to be upgraded as Lecturer in February 1990 (or thereafter).
13. On the other hand, any benefit cannot be said to have accrued to the petitioners on strength of GR dated 20.6.2001, that too within merely six days, more particularly when any benefit (i.e. higher pay scale or selection pay grade) on the strength of GR dated 20.6.2001 was actually not conferred or was not actually paid to the petitioners within six days.
14. When the government mentioned 20.9.1989 as relevant date (or "cut-off" as described by the petitioners), the government kept in focus the Page 32 HC-NIC Page 32 of 39 Created On Tue Aug 15 20:22:38 IST 2017 C/SCA/15991/2004 JUDGMENT date on which AICTE issued the recommendations. 14.1 The decision of the government is neither arbitrary nor discriminatory nor irrational, cannot be disturbed on the ground that it is irrational or without any nexus with the object or without any base and justification or without application of mind. When the said decision by the Government is examined in light of the fact that the Government revised the pay scale as well as requirement related to educational qualification in light of and on the basis of AICTE recommendation and that the said recommendation were notified on 20.9.1989, then, it becomes clear that the said decision of the Government cannot be said to be arbitrary or irrational. The recommendations by AICTE came to be announced and published on 20.9.1989. 14.2 The Government implemented the said recommendations vide GR dated 21.2.1991 wherein also the Government clarified that the said Page 33 HC-NIC Page 33 of 39 Created On Tue Aug 15 20:22:38 IST 2017 C/SCA/15991/2004 JUDGMENT revision and amendment are made in light of AICTE's recommendation dated 20.9.1989.
15. So far as the contention on the ground that the exemption granted could not have been withdrawn retrospectively is concerned, it is necessary to note that the petitioners conveniently overlook the fact that vide GR dated 16.5.1995 Government had specifically clarified that the exemption may be available to persons who were appointed by the competent authority prior to 20.9.1989. Merely because in clause 1.4 of GR dated 20.6.2001, it is mentioned that exemption would be available to persons who were in service prior to January 1996, it cannot be said that the said exemption had created any right in favour of petitioners. In this context, it would be profitable to turn to para No.9 to 12 from the respondent's affidavit which read thus:-
"9. I say and submit that the Government of Gujarat, Education Department framed recruitment rules for Lecturers for Polytechnic. Accordingly, candidate should possess I class Bachelor's Degree in Engineering/Technology.
10. I say and submit that in Government Resolution Page 34 HC-NIC Page 34 of 39 Created On Tue Aug 15 20:22:38 IST 2017 C/SCA/15991/2004 JUDGMENT dated. 20/6/2001 which is Annexure: "E" of the Petition page No: 47 in where clause 1.4 was deleted vide Corrigendum dated. 26/6/2001, as it was not recommended in AICTE notification dated. 30/12/1999, which marked at Annexure: III to this affidavit in reply.
11. I say and submit that the senior scales is not sanctioned as per preventing rules & resolutions, further more, Senior scale and Selection Grade are the carrier advancement and meant for improving quality of teachers. Government has introduced a scheme for improving qualification of polytechnic teachers, but petitioner has not came forward to improve qualification.
12. I say and submit as the petitioner is possessing qualification of Diploma Mechanical Engineer, II Class and having four years experience and the requisite qualification for the lecturers is first class Bachelor's Degree in appropriate branch of Engineering/Technology its equivalent qualification of a recognized University or a first class Master's Degree or its equivalent qualification in appropriate branch of study for teaching posts in humanities or Science of a recognized University."
In this view of the matter, the said
contention by the petitioners also cannot be
sustained.
16. Likewise, the contention on the ground of
"accrued benefit" or "accrued right" also cannot be sustained. As mentioned above, the resolutions issued prior to 20.6.2001 never granted or extended any exemption to the petitioners or any other lecturer in any faculty and in any institute within the State.
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16.1 The resolution dated 20.6.2001 came to be
issued with reference to the recommendation for granting pay scales as per the recommendations of 5th Pay Commission (and not with regard to pay scale notified / recommended by AICTE which were granted vide GR dated 21.2.1991) and that therefore, the said GR has no relation with the demand for higher pay scale or carrier advancement or grievance against eligibility criteria which came to be provided under AICTE's notification dated 20.9.1989. The said contention is therefore misconceived and unjustified. 16.2 On this count, it is pertinent to note that the petitioners' grievance and the cause for their complaint and dispute is the amendment recommended by AICTE in respect of educational qualification and eligibility criteria for the post of lecturer (and other posts). 16.3 The cause and reason for grievance is that Page 36 HC-NIC Page 36 of 39 Created On Tue Aug 15 20:22:38 IST 2017 C/SCA/15991/2004 JUDGMENT the petitioners do not possess said criteria/qualification.
The AICTE notified said criteria on 20.9.1989 with reference to said notification, the government issued GRs dated 16.5.1995 and 21.2.1991.
16.4 Now, so far as GR dated 20.6.2001 is concerned, the said GR was issued with reference to recommendations by 5th Pay Commission and it has no connection or relation with the AICTE's recommendation with reference to eligibility criteria/educational qualification. Thus, the subjects i.e. the subject under notification dated 20.9.1989, GR dated 21.2.1991 and GR dated 16.5.1995 is not connected with and cannot be mixed with GR dated 20.6.2001 (consequently the corrigendum dated 26.6.2001) and on strength of GR dated 20.6.2001 any right in respect of GR dated 21.2.1991 or 16.5.1995 cannot be demanded. In this view of the matter, the contention on ground of perceived "accrued right" is Page 37 HC-NIC Page 37 of 39 Created On Tue Aug 15 20:22:38 IST 2017 C/SCA/15991/2004 JUDGMENT misconceived and not sustainable. 16.5 The decision of Government of India to grant benefit of recommendation of 5th Pay Commission to the employees in diploma course / polytechnic institute are unrelated with AICTE's recommendation dated 20.9.1989.
16.6 The petitioners have conveniently overlooked the said aspects and have tried to club the Government of India's decision conveyed by AICTE under its communication dated 30.9.1989 with resolutions issued prior to 20.6.2001 i.e. with GRs. Dated 21.2.1991 and 16.5.1995. In this view of the matter, the petitioners' grievance raised by the petitioners is also misconceived and unsustainable.
17. The petitioners, even otherwise, do not fulfill the requirements and conditions prescribed by GR dated 21.2.1991 and therefore, they were, even otherwise, not eligible for Page 38 HC-NIC Page 38 of 39 Created On Tue Aug 15 20:22:38 IST 2017 C/SCA/15991/2004 JUDGMENT selection grade or other benefits. In this view of the matter, their grievance cannot be sustained.
18. The petitioners have failed to make-out any case against corrigendum dated 20.6.2001 and/or GR dated 16.5.1995 and/or in support of their claim and demand and relief prayed for. 18.1 In the result, the petitions fail and there is no base or justification to set aside the GR dated 16.5.1995 and/or corrigendum dated 20.6.2001 and/or to declare that the cut-off date determined by the respondent Government is arbitrary or discriminatory or irrational.
In the result, petitions deserve to be rejected and are hereby rejected. Rule is discharged.
Sd/-
(K.M.THAKER, J.) kdc Page 39 HC-NIC Page 39 of 39 Created On Tue Aug 15 20:22:38 IST 2017