Gujarat High Court
Ramanbhai Gopalbhai Patel vs State Of Gujarat on 2 December, 2021
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/2526/2012 ORDER DATED: 02/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2526 of 2012
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RAMANBHAI GOPALBHAI PATEL
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR SHALIN MEHTA, SENIOR ADVOCATE WITH ADITI S RAOL(8128) for
the Petitioner(s) No. 1
MR ADITYASINH JADEJA, AGP for the Respondent(s) No. 1,2
RULE SERVED(64) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 02/12/2021
ORAL ORDER
1. Learned AGP Mr.Adityasinh Jadeja is not disputing that the issue is covered by the judgment of the Division Bench in the case of Rami Gaurangkumar Yagneshkumar vs. State of Gujarat and Ors., 2021 (3) G.L.H. 529. However, he has submitted that the State Government is under process of filing SLP before the Apex Court.
2. In the present writ petition, the petitioner has prayed for directions directing the respondent authorities to issue an order of approval with respect to selection made by the selection committee selecting the petitioner in B.D. Arts College for the post of Adhyapak Sahayak and further direct the respondent authorities to allow the petitioner to resume the duty on the selected post in B.D. Arts College.
3. The brief facts of the case are as under:-
3.1. The petitioner is holding the educational qualification of M.PE.
MPhil as well as Ph.D and at present, he is serving in Nelson Higher secondary School since 1989 as an Assistant Teacher. The petitioner has Page 1 of 7 Downloaded on : Wed Jan 12 06:30:03 IST 2022 C/SCA/2526/2012 ORDER DATED: 02/12/2021 also undertaken the course of Yoga Education in Diploma with First Class as well, as has also cleared the course of Course on Computer Concept plus (CCC+). The petitioner is also holding a certificate of Socially and Economically Backward Community of Hindu Chaudhary issued by concerned department on 24.05.2010.
3.2. For the purpose of getting the prospective employment looking to the qualification held by the petitioner even Nelson Higher Seeondary School has issued an NOC on 28.02.2011 and also awarded a good conduct certificate on 01.03.2011.
3.3. In the month of February, the Gujarat Law Society institute, whose trust is administered the College in the name of B. D. Arts College requiring Adhyapak Sahayak for the subject of Physical Training Instructor and in response thereto, the petitioner has applied for and the Selection Committee. Thereafter, he was called for an interview on 07.03.2011 at 11:00 a.m. at Basha Sahitya Bhavan, Gujarat University Campus.
3.4. Amongst all other candidates, the petitioner found to be meritorious, the competent selection Committee of the authority selected the petitioner and in selection process, the petitioner stood at serial no.1. The Government Selection Committee, which took the interview, has selected the petitioner, scanned the petitioner's qualification and experience criteria and, therefore, pursuant to the selection, the respondent B.D. Arts College by forwarding all testimonials requested on 27.02.2011 to grant approval to the appointment to the petitioner in its College.
Page 2 of 7 Downloaded on : Wed Jan 12 06:30:03 IST 2022C/SCA/2526/2012 ORDER DATED: 02/12/2021 3.5 It is the case of the petitioner that thereafter, for a further period,
nothing was heard from the respondent side as a result of that the petitioner on 28.07.2011 requested the respondent-Joint Commissioner of Education to grant approval at the earliest. Since all the necessary records forwarded to the respondent authority for approval even the Selection Officer of the concerned department wrote a letter to the Commissioner of Higher Education to carry out the request of approval at the earliest and the said letter written by the concerned Education Department to the office of Commissioner of Higher Education dated 07.02.2012. On 15.02.2012, the present petitioner again wrote letter to the respondent authority to expedite the process and grant approval at the earliest.
4. Learned Senior Advocate Mr.Shalin Mehta appearing for the petitioner has submitted that with regard to the dispute grant of formal approval pending, the respondent authority has issued another process of Centralized Recruitment initiated in the month of February, 2012 and in the second last column of the chart in the Arts College, the interview was scheduled on 23.03.2012 for the post of Physical Training Instructor and the B.D. Arts College, Ahmedabad was also enlisted in the list of Colleges. Thus, he has submitted that the same had direct impact on the selection of the petitioner and if the interim process would be finalized automatically the case of the petitioner claiming the appointment would become infructuous.
5. Learned Senior Advocate Mr.Mehta for the petitioner has submitted that the petitioner is holding the qualification of MPE. MPhil as well as Ph.D. has more than adequate experience and based upon his merits, he was selected by the selection committee in the university campus and he was placed at serial no.1. It is submitted that the petitioner Page 3 of 7 Downloaded on : Wed Jan 12 06:30:03 IST 2022 C/SCA/2526/2012 ORDER DATED: 02/12/2021 appointment in another college was approved by the very respondent authority and there was no reason to go on delaying the process of grant of formal approval. It is submitted by him that the petitioner, after obtaining the degree of M.Phil of 2003 and has got registered on 28.02.2006 and final degree of Ph.D was awarded on 30.09.2010, which was prior to the cut off date i.e. 07.03.2011. It is submitted that the petitioner was already having the degree of Ph.D. and hence, non-grant of approval though the petitioner was holding the degree of Ph.D is not sustainable in law. It is submitted that the requirement of NET/SET is tried to be utilized as a lever to refuse the approval.
6. As recorded hereinabove, the learned AGP has contended that since the State is contemplating of filing the SLP against the Division Bench order, the present writ petition may not be entertained.
7. Thus, it is not disputed that the issue is squarely covered by the judgment of the Division Bench in the case of Rami Gaurangkumar Yagneshkumar (supra). The Division Bench in a similar set of facts has observed thus:-
"6. Having heard learned Counsel for the Appellant and learned AGP for the Respondent No.1-State and having gone through the documents produced on record, it appears that in connection with the advertisement dated 24th December 2009 for the post of Adhyapak Sahayak published in the Sandesh, Patan and in Divya Bhaskar newspaper in other Districts as well as by North Gujarat Education Society, Mumbai in pursuance of NOC granted by Higher Education Commissioner, as vacancies were available in two Colleges, Grant-inAid, namely (1) Sheth M. N. Science College, Patan and (2) Smt. T.S. R. Commerce College, Patan run by North Gujarat Education Society for the purpose of P.T.I. Adhyapak Sahayak in both the Colleges, Petitioner applied for the post in time. Advertisement was mentioning that the candidate must clear NET/SLAT or Ph.D. within 5 years from the date of selection. It further appears that the Appellant applied for the post of P.T.I. Adhyapak Sahayak in pursuance of the said advertisement, as he was possessing qualification of Master of Physical Education and he had already applied/registered for Ph.D. at the relevant point of time. It Page 4 of 7 Downloaded on : Wed Jan 12 06:30:03 IST 2022 C/SCA/2526/2012 ORDER DATED: 02/12/2021 also appears from the record that on 18.09.2010, the Appellant had completed his Ph.D and he accordingly informed the original respondent No.4-College by Regd. Post A.D and sent the certificate of Ph.D. These facts were never denied by the respondent authorities. Apart from the present Appellant, two other persons namely Sagar B.Desai and Rameshbahi Chaudhari were also called for the interview on the said post on 11.03.2011. It is not in dispute that at the time of interview, one Representative of the Government,two Expert Members and Two representatives of Chancellor, in all total Five persons were present. It is not in dispute that after completing the procedure of Interview, Appellant was selected unanimously ie.,all the members present in the interview in the said case, the selection of the Appellant was subject to approval of the Government. Accordingly, proposal was sent to the Government on 15th March, 2011. The other two candidates namely S. B. Desai and R.B. Chaudhari submitted their objections dated 11.3.2011 to the Government and Representative of the Government tendered his objection dated 13.03.2011 against the selection of Appellant by the Committee. Thereafter, the Higher Education Officer issued notice dated 12.5.2011 to the Appellant in pursuance of the said objections. That, present Appellant was remained present on 17th May 2011 and at the time of hearing, he submitted his written reply stating that he has already completed Ph.D. Degree before the date of interview and acquired qualification for the purpose of selection as per the condition of the advertisement dated 24.12.2009.
7. It also appears from the record that at the time of interview, no one had raised any objections in respect of the qualifications of the present Appellant in the said Interview. The Higher Education Commissioner, without considering the submissions of the present Appellant and the conditioned mentioned in the advertisement dated 24.12.2009, cancelled and set aside the Interview process of the Appellant as well as cancelled the N.O.C granted to the college by virtue of order dated 12.9.2011. It further appears that the High Education Officer, on 12.10.2009, issued a letter to the Principal, Smt. T.S.R. Commerce College, Patan wherein he had clearly mentioned in condition No. 37 that if any candidate acquired a qualification of NET/SLAT or Ph.D. at the time of appointment, they would be eligible for Higher Scale of Rs. 7500/-. It appears that he clarified that the passing of Ph.D. etc, was not condition precedent for appointment of Adhyapak Sahayak. It appears that the Appellant was granted Higher Grades by the Representative of Government after his Interview. It appears that order dated 12.09.2011 was challenged by the present Appellant before this Court by filing Special Civil Application No. 16122 of 2011 wherein, this Court vide order dated 2 nd July, 2012, set aside the impugned order dated 12.9.2011 and remanded back the matter directing the authorities to reconsider the matter as the said order was non-speaking. It appears from the record that the Appellant made his representation dated 04.08.2012 requesting that as per the advertisement, he was eligible for appointment and after considering the said representation of the Appellant and other relevant documents, the authority passed an order dated 31st August, 2012 which was issued on 5 th September, 2012 bearing No. KVT/V- 4/12/13/5345.27 on the basis of the common order passed in Special Civil Application No. 24358 of 2006 to Special Civil Application No. 24372 of 2006 dated 15.1.2008, in which, the resolution dated 25.8.2005 was challenged. While referring such judgment, it was clarified that one of the condition in the said government Resolution dated 25.08.2005 issued by Education Department was that on appointment of the "Adhyapak Page 5 of 7 Downloaded on : Wed Jan 12 06:30:03 IST 2022 C/SCA/2526/2012 ORDER DATED: 02/12/2021 Sahayak" would have to pass NET/SLAT or Ph.D. within a period of 5 years. It appears that the U.G.C. has formulated regulation namely UGC Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education 2010. At Clause 3.3.1 of the Regulations provides that "NET/SLAT/ SET shall remain the minimum eligibility condition for recruitment and appointment of Assistant Professors in Universities/Colleges/ Institutions. If we consider the advertisement dated 24.12.2009, it clearly provides that the candidate could acquire the NET/SLAT or Ph.D. Degree within 5 years of selection and it would not compulsory to have a Degree of NET/SLAT or Ph.D. at the time of advertisement. It further appears that the Committee had unanimously selected the present Appellant in the interview and at the time of interview, the representative of the Government was also present. No objections were raised by the said representative of the Government regarding qualification of the Appellant at the time of Interview. Other two candidates namely S.B. Desai and R. B. Chaudhari had also never raised any objection regarding qualification of the present Appellant and Degree of Ph.D. at the time of Interview. On the contrary, only when these two candidates were not selected by the Committee, a proposal of the Appellant only was sent to the Government for the approval. Thereafter, written objections were tendered before the concerned authority, which was nothing but malafide. The present Appellant was having a Degree of Ph.D. as on the date of interview which was held in the month of March 2011. The concerned decision taking Authority has power to appoint the candidate for the post of Adhyapak Sahayak by relaxing the condition of NET/SLAT or Ph.D. as it was mentioned in the advertisement dated 24.12.2009. It also appears that the proposal of selection of the Appellant was sent for consideration of the concerned Authority. The impugned order dated 31.08.2012 issued on 05.09.2012 bearing No. KVT/V-4/12-13/5345.27 by original Respondent no.2 confirming the earlier order dated 12.09.2011 is against the law of equity and principle of natural justice.
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9. Considering the factual aspect as well as circumstances arose from the record, we are of the opinion that the Appellant was the candidate, who had fulfilled the qualification and eligibility criteria on the date, he was offered his candidature in the advertisement itself. Candidates were were allowed to pass NET/SLAT of Ph.D. examination after selection within a period of Five years. In the Interview Committee also, representative of the State Government was present and upon due verification, Appellant was duly selected. It was not open for the State to go behind the clarification and interpretation of the Government Resolution while passing order passed by the original Respondent No.2. Admittedly, the Appellant had fulfilled qualification and eligibility criteria on the date, he offered his candidature. Findings of the learned Single Judge, with due respect, that the Appellant had no right to contend that subsequently obtained qualification in any way save his selection, was contrary to law as well as record."
In the case before the Division Bench, the appellant was holding the degree of Ph.D as on 18.09.2010, whereas the advertisement was on Page 6 of 7 Downloaded on : Wed Jan 12 06:30:03 IST 2022 C/SCA/2526/2012 ORDER DATED: 02/12/2021 24.12.2009. Thus, the appellant before the Division Bench was holding the degree before the interview date, which was held on 11.03.2011.
8. In the present case, the petitioner stands on better footting since the petitioner was holding the degree of Ph.D on 30.09.2010 and he had accordingly submitted the theses on 19.05.2010, whereas the petitioner was interviewed on 07.03.2011. Thus, the petitioner stands on better footing than the appellant before the Division Bench as prior to the interview, he was already holding the degree of Ph.D.
9. Under the circumstances and in light of the foregoing observations, the present writ petition is allowed. The respondents are directed to approve the selection of the petitioner to the post of Adhyapak Sahayak in B. D. Arts College. The respondents are directed to appoint the petitioner with retrospective date with effect from any person, who is appointed pursuant to the recruitment undertaken vide advertisement dated 17.05.2010.
10. It is clarified that, the petitioner would not be entitled to actual arrears, the appointment with retrospective shall only be considered for the purpose of seniority. Appropriate orders in terms of the directions shall be passed within a period of two months from the date of receipt of the writ of this order. Rule is made absolute.
(A. S. SUPEHIA, J) ABHISHEK/1 Page 7 of 7 Downloaded on : Wed Jan 12 06:30:03 IST 2022