Gujarat High Court
State Of Gujarat & 2 vs Husein Abdulrahim Hasan & 3 on 6 December, 2016
Author: R. Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/1293/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1293 of 2016
In SPECIAL CIVIL APPLICATION NO. 7236 of 2013
With
CIVIL APPLICATION NO. 11906 of 2016
In
LETTERS PATENT APPEAL NO. 1293 of 2016
With
LETTERS PATENT APPEAL NO. 1292 of 2016
In
SPECIAL CIVIL APPLICATION NO. 11687 of 2013
With
CIVIL APPLICATION NO. 11913 of 2016
In
LETTERS PATENT APPEAL NO. 1292 of 2016
With
LETTERS PATENT APPEAL NO. 1294 of 2016
In
SPECIAL CIVIL APPLICATION NO. 11757 of 2013
With
CIVIL APPLICATION NO. 11907 of 2016
In
LETTERS PATENT APPEAL NO. 1294 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
Page 1 of 14
HC-NIC Page 1 of 14 Created On Wed Dec 07 02:23:31 IST 2016
C/LPA/1293/2016 CAV 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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STATE OF GUJARAT & 2....Appellant(s)
Versus
HUSEIN ABDULRAHIM HASAN & 3....Respondent(s)
==========================================================
Appearance:
MS MANISHA L SHAH, GP WITH MR D.M.DEVNANI, AGP for the Appellant(s)
No. 1 - 3
MR IH SYED, ADVOCATE WITH MR UPADHYAY for the Respondent(s) No.1
in Special Civil Application No.1293 of 2016
MS MAMTA VYAS, for the Respondent(s) No.1 in Special Civil Application
No.1292 of 2016.
MR MEHUL RATHOD, for the Respondent(s)No.2 in Special Civil Application
No.1294 of 2016.
HL PATEL ADVOCATES, ADVOCATE for the Respondent(s) No. 2
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH
REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 06/12/2016
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. These appeals are filed by the appellants-original respondent nos.1 to 3 under Clause 15 of the Letters Patent against the common judgment dated 4.12.2015 passed by the Page 2 of 14 HC-NIC Page 2 of 14 Created On Wed Dec 07 02:23:31 IST 2016 C/LPA/1293/2016 CAV JUDGMENT learned Single Judge in Special Civil Application No.7236 of 2013 and allied matters.
2. As the facts and issue involved in these appeals are similar, they are taken up for final disposal with the consent of learned advocates for the parties and disposed off by this common judgment. For the sake of convenience, the facts of Special Civil Application No.7236 of 2013 are recorded.
3. The brief facts for deciding the controversy involved in the matters are as under:
3.1 It is the case of the petitioner that he is having two masters degrees and is Ph.d. He had passed his M.Com.in the year 1980 with 50.08% and he got second Masters degree i.e. M.Phil in the year 1988 with 61%. He has worked as a Lecturer during the period between 11.12.1982 to 28.3.2012 in Navjivan Arts and Commerce College.
3.2 On 23.1.2012, an online advertisement for the post of Principal was put up with the resolutions dated 29.9.2011 and 14.11.2011 regarding the criteria to be fulfilled by the candidate and the marking system. As per the advertisement, the candidate must possess minimum qualification as prescribed under UGC Regulation Page 3 of 14 HC-NIC Page 3 of 14 Created On Wed Dec 07 02:23:31 IST 2016 C/LPA/1293/2016 CAV JUDGMENT 2010 as well as the qualification prescribed in Government Resolution dated 29.9.2011 and 14.11.2011 for the post of Principal. It is the case of the petitioner that he submitted an application online for the post of Principal. He also submitted all the required documents.
Interview was scheduled on 14.2.2012 and the petitioner was called for the same. It is the case of the petitioner that he was informed on 19.3.2012 by an online communication sent to him to join Shri Sarvajanik College of Commerce, Godhra within seven days of the communication and to complete the formalities. Consent letter was also sent by the petitioner for the same. Thereafter, the petitioner submitted his resignation on 27.3.2012 from his services in the previous college in the presence of Registrar, Gujarat University and on 27.3.2012, the petitioner received appointment letter as the Principal of Shri Sarvajanik College of Commerce, Godhra. Relieving letter was also received on the next date by him from his previous college.
3.3 The petitioner has started working as a Principal in the aforesaid institution. However, on 1.4.2013, an order was passed by the Joint Director of Education, Gandhinagar and sent to the concerned College mentioning that the petitioner cannot continue as Principal for not Page 4 of 14 HC-NIC Page 4 of 14 Created On Wed Dec 07 02:23:31 IST 2016 C/LPA/1293/2016 CAV JUDGMENT fulfilling the criteria of holding 55% marks in the Masters degree and hence the petitioner be relieved with immediate effect.
3.4 The petitioners, therefore, immediately filed petitions before this Court and prayed that the order dated 1.4.2013 passed by the concerned respondents be quashed and set aside and thereby further direct to restore the appointments and posting of the petitioners. The present appeals are therefore filed by the appellants-original respondent nos.1 to 3 challenging the order passed by the learned Single Judge.
4. Heard learned Government Pleader Ms.Manisha Shah for the appellants, learned advocate Mr.Syed with learned advocate Mr.Upadhyay, learned advocate Ms.Mamta Vyas and learned advocate Mr.Rathod for the respondents in the respective appeals.
5. Learned Government Pleader mainly contended that in the advertisement which was issued for the post of Principal, qualifications are specifically prescribed. It is contended that as per the advertisement, minimum requirement prescribed under the UGC Regulation, 2010 as well as the minimum educational requirement prescribed under the Government Resolution dated 29.9.2011 Page 5 of 14 HC-NIC Page 5 of 14 Created On Wed Dec 07 02:23:31 IST 2016 C/LPA/1293/2016 CAV JUDGMENT and 14.11.2011 would be considered for the said post. At this stage, learned Government Pleader referred to Regulation 4.2 of UGC Regulation, 2010 and submitted that as per the said Regulation, the candidates must possess a Masters degree with at least 55% marks from recognized University. At this stage, it is further submitted that as per Government Resolution dated 29.9.2011 and 14.11.2011, minimum prescribed qualification for the said post is Masters degree with 55% marks. However, the petitioners are not possessing Masters degree with 55% of marks and therefore when it came to the notice of the State Government after the appointment of the petitioners by the concerned institution, after due verification, the impugned order was passed on 1.4.2013 and thereby the petitioners are relieved from the aforesaid post with immediate effect and they were permitted to resume their duty at the place where they were previously working. Thus, no illegality is committed by the appellants in passing the said order. In spite of that, the learned Single Judge has quashed and set aside the order dated 1.4.2013. It is, therefore, requested that the impugned order passed by the learned Single Judge be set aside.
6. On the other hand, learned advocate Mr.Syed appearing for one of the petitioners Page 6 of 14 HC-NIC Page 6 of 14 Created On Wed Dec 07 02:23:31 IST 2016 C/LPA/1293/2016 CAV JUDGMENT contended that as per Regulation 3.5 of UGC Regulation, 2010, relaxation of 5% of marks is given to the Ph.D.degree holder who have obtained their Masters degree prior to 19.9.1991 and therefore instead of 55% of marks prescribed under UGC Regulations of 2010, 50% marks are to be considered. It is submitted that for all the petitioners who possess Masters degree prior to 19.9.1991 and also possess Ph.D.degree, 5% relaxation is to be granted. At this stage, it is contended that the Interview Committee has rightly considered the said provisions and thereafter selected the petitioners and given the appointment orders by the concerned institutions. However, when the petitioners have joined the duty as Principal in the respective institution and when the approval was sought for from the State Government, the State Government took up the issue and wrongly passed the impugned order on 1.4.2013 which the learned Single Judge in the facts and circumstances of the case rightly set aside.
6.1 Learned advocate Mr.Syed thereafter submitted that contention of learned Government Pleader that in the Government Resolution dated 29.9.2011 and 14.11.2011, minimum qualification of 55% marks are prescribed for the post of Principal is misconceived. It is submitted that Page 7 of 14 HC-NIC Page 7 of 14 Created On Wed Dec 07 02:23:31 IST 2016 C/LPA/1293/2016 CAV JUDGMENT when UGC Regulation, 2010 prescribes a relaxation by way of resolution, State Government cannot prescribe more qualification and even if the same is prescribed, such prescription of qualification is contrary to the Central Regulations and therefore to that extent, the criteria prescribed by the State Government are required to be ignored. It is submitted that learned Single Judge has considered this aspect in detail after relying upon the decision rendered by the Hon'ble Supreme Court which was pointed out to the learned Single Judge and therefore this Court may not interfere with the decision rendered by the learned Single Judge.
6.2 Learned advocate Mr.Syed thereafter contended that the appellants are wrongly placing reliance upon Government Resolution dated 29.9.2011. It is submitted that the said Government Resolution is immediately corrected by another amended resolution dated 18.6.2012 by which it has been specifically provided that educational qualification are as per paragraphs 3.4, 3.5 and 4.2 of UGC Regulation, 2010. Thus, when the Government Resolution dated 29.9.2011 is corrected, such correction would take place from the date of issuance of Government Resolution dated 29.9.2011 itself. Hence, the impugned order passed by the respondent on 1.4.2013 is rightly Page 8 of 14 HC-NIC Page 8 of 14 Created On Wed Dec 07 02:23:31 IST 2016 C/LPA/1293/2016 CAV JUDGMENT quashed and set aside by the learned Single Judge. He, therefore, requested that these appeals be dismissed.
6.3 Learned advocate Ms.Mamta Vyas and learned advocate Mr.Rathod appearing for the original petitioners have supported the submissions canvassed by learned advocate Mr.Syed.
7. We have considered the submissions canvassed on behalf of learned advocates appearing for the parties. We have also gone through the material produced on record. From the material on record, following undisputed facts would emerge:
(a) All the petitioners are Ph.D.degree holders who have obtained their Masters degree prior to 19.9.1991.
(b) On 23.1.2012, an advertisement came to be issued for filling up 103 posts of Principals in grant-in-aid non government colleges.
(c) As per the said advertisement, candidate must possess qualification as per UGC Regulation 2010 as well as Government Resolution dated 29.9.2011 and 14.11.2011 issued by the Education Department, State of Gujarat.
(d) The petitioners submitted an application Page 9 of 14 HC-NIC Page 9 of 14 Created On Wed Dec 07 02:23:31 IST 2016 C/LPA/1293/2016 CAV JUDGMENT along with necessary documents. The petitioners were called for interview. The petitioners were selected by Selection Committee and petitioners were appointed as a Principal in the respective colleges, however, subject to approval of the State Government.
(e) The petitioners have worked in the concerned institute for few months and thereafter on 1.4.2013, the petitioners were relieved from the post of Principal and they were permitted to join the posts which they were holding prior to their appointment as Principal.
(f) The only reason stated in the said order dated 1.4.2013 is that the petitioners do not possess Masters degree with minimum 55% of marks as per UGC Regulations and as per Government Resolution dated 29.9.2011.
8. In the aforesaid factual background of the matter, relevant provisions contained in UGC Regulations, 2010 are required to be considered:
"3.0.0 RECRUITMENT AND QUALIFICATIONS 3.1.0 The direct recruitment to the posts of Assistant Professors, Associate Professors and Professors in the Universities and Colleges shall be on the basis of merit through all India advertisement and selections by the duly constituted Selection Committee as per the provisions made under these Regulations to be incorporated under the Statutes/Ordinances of the concerned university. The composition of such Page 10 of 14 HC-NIC Page 10 of 14 Created On Wed Dec 07 02:23:31 IST 2016 C/LPA/1293/2016 CAV JUDGMENT committees should be as prescribed by the UGC in these Regulations.
3.2.0 The minimum qualifications required for the post of Assistant Professors, Associate Professors, Professors, Principals, Assistant Directors of Physical Education and Sports, Deputy Directors of Physical Education and Sports, Directors of Physical Education and Sports, Assistant Librarians, Deputy Librarians, Librarians will be those as prescribed by the UGC in these Regulations. 3.3.0 The minimum requirements of a good academic record, 55% marks (or an equivalent grade in a point scale wherever grading system is followed) at the master's level and qualifying in the National Eligibility Test (NET) or an accredited test (State Level Eligibility Test - SLET/SET), shall remain for the appointment of Assistant Professors.
3.3.1 xxxx 3.3.2 xxxx 3.4.0 xxxx 3.4.1 xxxx 3.5.0 A relaxation of 5% may be provided, from 55% to 50% of the marks to the Ph.D.Degree holders, who have obtained their Master's Degree prior to 19 September, 1991. 3.6.0 xxxx 3.7.0 The Ph.D.Degree shall be a mandatory qualification for the appointment of Professors and for promotion as Professors. 3.8.0 xxxx 3.9.0 xxxx 4.0.0 DIRECT RECRUITMENT 4.1.0 xxxx 4.2.0 PRINCIPAL i. A Master's Degree with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed) by a recognized University.
ii. A Ph.D.Degree in concentrated/allied/relevant discipline(s) in the institution concerned with evidence of published work and research guidance.
Page 11 of 14HC-NIC Page 11 of 14 Created On Wed Dec 07 02:23:31 IST 2016 C/LPA/1293/2016 CAV JUDGMENT iii. Associate Professor/Professor with a total experience of fifteen years of teaching/research/administration in Universities, Colleges and other institutions of higher education.
iv. A minimum score as stipulated in the Academic Performance Indicator (API) based Performance Based Appraisal System (PBAS), as set out in this Regulation in Appendix III for direct recruitment of Professors in Colleges.
4.3.0 ASSOCIATE PROFESSOR"
9. If we examine all the aforesaid regulations carefully, it is revealed that Regulation 3 provides for recruitment and qualifications. In the said regulation, it is nowhere specified that the said regulation would be applicable only to the Assistant Professors, Associate Professors and Professors. On the contrary, Regulation 3.2 prescribed minimum qualification required for the post of Assistant Professors, Associate Professors and Professors, Principals etc. and it is further stated in the said regulation that their minimum qualification will be those as prescribed by UGC in these regulations. At this stage, it is also required to be noted that Regulation 4 prescribes qualifications for direct recruitment on various posts like Professor, Principal, Associate Professor etc. Further, Regulation 4.2 provides qualification for the post of Principal in which it has been provided for qualification of Masters Page 12 of 14 HC-NIC Page 12 of 14 Created On Wed Dec 07 02:23:31 IST 2016 C/LPA/1293/2016 CAV JUDGMENT degree with at least 55% marks by recognized University. Thus, if we read aforesaid Regulations together, we are of the opinion that the relaxation of 5% from 55% to 50% of the marks to the Ph.D. Degree holders who have obtained their degree prior to 19.9.1991 provided in Regulation 3.5 would be applicable to all the posts of Professors, Principals, Associate Professors etc. It is not in dispute that all the petitioners have obtained their Masters degree prior to 19.9.1991 and therefore said relaxation would be available to them.
10. It is true that in Government Resolution dated 29.9.2011, the Education Department, State of Gujarat has specifically provided that for appointment on the post of Principal, minimum 55% of marks at post-graduation level would be necessary. However, it is also true that the said clause is immediately corrected by another Government Resolution dated 18.6.2012 whereby it has been provided that Regulation nos.3.4, 3.5 and 4.2 of UGC Regulation, 2010 would be applicable for considering the educational qualifications. Thus, when the original Government Resolution dated 29.9.2011 is corrected, such correction would take place from the date of its inception i.e.29.9.2011. Hence, the State Government itself has thought it fit to Page 13 of 14 HC-NIC Page 13 of 14 Created On Wed Dec 07 02:23:31 IST 2016 C/LPA/1293/2016 CAV JUDGMENT consider that clause 3.5 would be applicable for considering the educational qualification for the post of Principal. It would not be proper on the part of the State Government to contend that the petitioners are not eligible for the post of Principal and therefore they were terminated by an order dated 1.4.2013.
11. We have also gone through the reasoning recorded by the learned Single Judge while allowing the petitions and also in agreement with the same. Thus, in view of the discussion made by us hereinabove and also in view of the reasoning recorded by the learned Single Judge, we are of the view that the present appeals are devoid of merits and accordingly dismissed. The present appellants are directed to comply with the order passed by the learned Single Judge within a period of ten weeks from the date of receipt of this order.
12. As the appeals are dismissed, civil applications also stand dismissed.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Srilatha Page 14 of 14 HC-NIC Page 14 of 14 Created On Wed Dec 07 02:23:31 IST 2016