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2016 DIGILAW 126 (GUJ)

Amarubhai Nanabhai Jebaliya v. State of Gujarat

2016-01-18

SONIA GOKANI

body2016
JUDGMENT : Sonia Gokani, J. 1. Petitioner herein challenges the action of the respondent authority of not giving him timely promotion. 2. Brief facts are as follows:- 2.1. The petitioner was initially appointed on the post of Assistant Teacher in Taluka School No. 11 on 27.11.1992. He was transferred to School 10/6 as Head Teacher vide order dated 27.7.2001. Then he continued as Head Teacher vide order dated 29.1.2005. He cleared CCC examination from Dr. Babasaheb Ambedkar Open University ("Ambedkar University" for short) on 1.10.2007 for the examination conducted in April, 2007. Respondent No. 3 communicated to the petitioner asking for the certificate of Course on Computer Competence ("CCC" for short) of all those teachers serving with the School and the same had been sent to respondent No. 3 authority on 14.12.2009, which also included certificate of the petitioner by an outward No. 71 of 2009. 2.2. Later on the petitioner applied for the CCC examination in Gujarat Council of Vocational Training ("GCVT" for short), but, the examination of CCC had not been held for a considerable period. However, he could pas the same on 27.8.2014. In the meantime, he also passed the examination of the Head Teacher Aptitude Test ("HTAT" for short) in August, 2013 and he was issued mark-sheet on 13.9.2013. 2.3. On 31.1.2014 the respondent authority issued a letter to all Municipal schools directing all teachers, who possess the qualification of Head Teacher to send their application forms on or before 5.2.2014 through proper channel to Kendravarti School. The petitioner applied for the post of Head Teacher Class-III on 5.2.2014 which was to be filled up by way of promotion of those candidates who possess the requisite qualification. It is the case of the petitioner that he possessed all relevant mark-sheets and certificates, which included CCC examination certificate in his application. 2.4. A Camp was organized on 15.2.2014 and a select list of Head Teacher-2014 had been prepared. It was sent to the petitioner on the same date where he stood at Serial No. 2 in the select list. The employer had also mentioned that he had possessed CCC examination. He once again applied for CCC examination with Gujarat Technological University (GTU for short), Ahmedabad on 27.8.2014. He could appear for examination and passed the same as conducted by the GTU. The same was communicated to respondent No. 3 authority. 2.5. The employer had also mentioned that he had possessed CCC examination. He once again applied for CCC examination with Gujarat Technological University (GTU for short), Ahmedabad on 27.8.2014. He could appear for examination and passed the same as conducted by the GTU. The same was communicated to respondent No. 3 authority. 2.5. In the meantime, on 13.8.2014, a meeting of Departmental Promotion Committee ("DPC" for short) was held and the name of the petitioner was rejected on the ground that he was possessing CCC certificate from Ambedkar University in the year 2007 inasmuch as CCC examination cleared from Ambedkar University prior to 2009 would have no validity. The petitioner also preferred Regular Civil Suit No. 456 of 2014 before the Court of Principal Senior Civil Judge seeking the prayer not to appoint any other employee junior to the petitioner. Respondent No. 3 filed its reply in the said suit. 3. The petitioner approached this Court in November, 2014 seeking the following reliefs:- "9. In view of the aforesaid submissions, the petitioner prays that:- (A) Your Lordships may be pleased to admit and allow this petition; (B) Your Lordships may be pleased to issue an appropriate writ, order or direction and hold that selection procedure of the D.P.C. Bhavnagar, which was held on 04/10/2014 is illegal and arbitrary and cancel the said meeting and stay the further proceedings arising out of said meeting of the D.P.C. dated 04/10/2014 and further be pleased to direct the respondent No. 3 to re-organize the meeting of D.P.C. against the meeting dated 04/10/2014 and consider the case of present petitioner for the post of Head teacher and further be pleased to hold and declare that, respondents who were fully aware about the case of petitioner still gave promotion to the juniors is bad in law. (C) Your Lordships may be pleased to issue an appropriate writ, order or directing to the respondent authority, to consider the case of petitioner for the post of Head teacher and permitting him to take part in the meeting of place selection, which will be organized by respondent authority in future for selection and appointment for the post of Head teacher and further be pleased to direct the respondent authority to consider the seniority of the petitioner and to issue the posting order to the present petitioner for the post of Head Teacher as per his choice of place. (D) Pending hearing and final disposal of this petition Your Lordships may be pleased to direct the respondent authority more particularly respondent No. 3 to stay the further proceeding arising from the meeting of D.P.C. dated 04/10/2014 and also to allow the petitioner to exercise his option for choice of place in the meeting to be organized in future. (E) Such further and other orders be passed, directions be given and reliefs be granted as this Hon'ble Court may deem fit and proper." 4. Respondent No. 2, Directorate of Primary Education filed its reply emphasized that the Government Resolution dated 2.1.2009 of the General Administrative Department recognizes CCC certificate issued by Ambedkar University only after 2009. The syllabus of the University has matched the syllabus prescribed by the State Government for conducting CCC examination in the post 2009 period, and therefore, any certificate issued prior thereto would not be valid. This University started conducting the course of CCC in consonance with course prescribed by the State Government only in post 2009 period and hence, any certificate issued prior thereto would have no validity. 5. The grievance also is made by the petitioner that although his certificate of CCC examination was with the authority, no entry was made in his service book although the same was done in case of another employee, namely, Bhagvatiben Ranabhai Baladhiya. It is also his grievance that Circular dated 17.12.2007 clarifies that CCC/CCC+ Examination conducted by DOEACC or equivalent examination which included certificate of Ambedkar University, is a must for a person to get the Government job. Therefore, to hold it otherwise by subsequent circular the same must have prospective effect. 6. Affidavit-in-reply filed by Respondent No. 3 contends inter-alia that Government Resolution dated 30.9.2006 resolved about curriculum, training centre and examination centres about the training and examination of computer skill. Clause 2 specifically stated that for any promotion from Class-IV to Class-III or Class-III to Class-II, person must possess CCC examination certificate. The examination be held by institutions like ITI, GCVT or the centres run by SPIPA The name of the Ambedkar University does not figure in the said Government Resolution. Clause 2 specifically stated that for any promotion from Class-IV to Class-III or Class-III to Class-II, person must possess CCC examination certificate. The examination be held by institutions like ITI, GCVT or the centres run by SPIPA The name of the Ambedkar University does not figure in the said Government Resolution. As such Government Resolution dated 30.9.2006 does not speak of validity of the certificate of the Ambedkar University, it was only in the Government Resolution dated 2.1.2009 that the said University was considered to have been recognized to conduct the examination of CCC and CCC+. 7. It is further contended that the petitioner cleared CCC examination in the year 2007 from Ambedkar University. He appeared for such examination with GTU on 23.8.2014 after DPC met on 13.8.2014. Therefore, his case was not considered. 8. The affidavit-in-rejoinder from the said petitioner indicates that communication letter dated 11.12.2009 having outward entry No. 71 was addressed to the petitioner seeking CCC certificate and according to him, he had addressed a letter dated 14.12.2009 which was forwarded by Shyama Prasad Mukherjee School No. 79 to the respondent authority. Such letter has not been received by the respondent authority according to their stand. Only one letter that was received from the Head Teacher Shyama Prasad Mukherjee School No. 79 and that is not the letter dated 14.12.2009. Therefore, it is the stand of the respondent that either it is fabricated or changed for getting illegal benefits from the Court, but, the same has never been forwarded to the respondent No. 2. It is also its contention that there is a difference in the seal of the school in the letter produced by the petitioner and the letter produced by respondent No. 3. 9. Respondents 4 to 6, who were appointed on the post have been impleaded as party-respondents and they have filed their affidavit-in-replies, insisting therein that the petitioner has challenged selection process of D.P.C., Bhavnagar which had been held on 4.10.2014 and the promotion orders of respondents No. 5 and 6, such prayer cannot be granted as these respondents have already been promoted and taken the charge. It is also their case that when CCC examination of Ambedkar University is not recognized and his insistence on being promoted to the post in subsequently obtained certificate may not be entertained. 10. Learned advocates for both the sides have been heard at length. 11. It is also their case that when CCC examination of Ambedkar University is not recognized and his insistence on being promoted to the post in subsequently obtained certificate may not be entertained. 10. Learned advocates for both the sides have been heard at length. 11. The controversy revolves around CCC certificate obtained by the petitioner from Ambedkar University in the year 2007, which according to the respondent authority is not considered valid pursuant to the resolution of the State dated 2.7.2009. It is the contention of the respondent that Ambedkar University started the certification course as required by the State Government in post 2.1.2009 period. Therefore, it was sine quo non for the petitioner to have cleared the examination from the recognized university or centre which had happened only after D.P.C. had met and hence no case is made out. 12. Another challenge raised by the respondent authority is the communication dated 14.12.2009 addressed by the Principal of Shayama Prasad Mukherjee School No. 79 to the District Education Officer. The letter, which has been produced along with the affidavit-in-reply filed by respondent No. 3 reflects the name of the present petitioner. CCC certificate of four teachers have been forwarded to DEO which includes the name of the petitioner. The controversy in respect of such letter produced by the petitioner and the seal being different, does not require much adjudication because it is a typed copy and even if the letter produced along with the affidavit of respondent No. 3 is considered, it does include the name of the petitioner and he is one of the four teachers, who according to this communication possessed CCC certificate. 13. Therefore, focusing on the main controversy as to whether the petitioner was entitled to the promotion on the strength of his certificate obtained from Ambedkar University in the year 2007 and whether his subsequently obtained certificate would mark his right to be promoted for the same being subsequent to the meeting of DPC need redressal. 14. Admittedly, the petitioner had the certificate of CCC certificate of Ambedkar University, which he cleared on 17th December, 2007. As rightly pointed out by the learned advocate for the petitioner, the resolution of the Government which necessitates the possession of the certificate of CCC or DOEACC or equivalent institutions/university refers to Ambedkar University as well. 14. Admittedly, the petitioner had the certificate of CCC certificate of Ambedkar University, which he cleared on 17th December, 2007. As rightly pointed out by the learned advocate for the petitioner, the resolution of the Government which necessitates the possession of the certificate of CCC or DOEACC or equivalent institutions/university refers to Ambedkar University as well. However, subsequent to 30.9.2006, resolution of the GAD prescribes the details of organization for the purpose of training and examination of computer competence. It provides, therefore, that for the Class-I and Class-II officers, the CCC+ examination is a must whereas for Class-III employees the CCC is required as per Schedules 'A' and 'B', whereas Schedule 'D' provides for the examination centres by GCVT, ITI and SPIPA, Ahmedabad. The resolution of GAD dated 2.1.2009 provides that, in all, 181 centres of Ambedkar University have been accepted for training employees for CCC/CCCC+ examination. The University if conducts an examination under the guidance of SPIPA, ITI or Gujarat Technical Education Board, such certificate is held to be valid. 15. There appears to be an anomaly in the Government Resolution dated 27.12.2007 which along with the certification of DOEACC and other institute giving the equivalent certificate, includes the name of Ambedkar University. Although neither the GAD circular dated 30.9.2006 nor circular dated 2.1.2009 in any manner create any confusion. Circular dated 30.9.2006 specifies the centres both for the purpose of training and examination and the circular dated 2.1.2009 accepts examination conducted by Ambedkar University and the certificate issued by it subject to its fulfilling certain conditions. However, as the petitioner had already possessed the certificate of Ambedkar University of the year 2007, he is expected to be aware of the Government Resolution dated 30.9.2006 of GAD and even Government Resolution dated 17.12.2007 also refers to the said Government Resolution. The said Government Resolution is clarificatory in nature and yet it had raised reference of Ambedkar University. 16. The certificate of the petitioner also had been forwarded in the year 2009 to the District Education Officer. He admittedly never possessed any other certificate, other than that of Ambedkar University. In any case, he had applied for the certification course once again under GCVT on 18.4.2013. He had also applied under GTU on 23.7.2014 and cleared the examination 23.8.2014. The certificate of the petitioner also had been forwarded in the year 2009 to the District Education Officer. He admittedly never possessed any other certificate, other than that of Ambedkar University. In any case, he had applied for the certification course once again under GCVT on 18.4.2013. He had also applied under GTU on 23.7.2014 and cleared the examination 23.8.2014. Thus, his clearance of examination on 23.8.2014, after the DPC had met on 13.8.2014, may not be a ground to deny him the benefit of promotion. Non-conduct of examination for more than a year may not be the ground to deny him his due. This being a settled law, on this ground alone also the petition needs to be allowed. As is clear from the chronology of events, the petitioner has worked for more than 23 years. He had joined the service in the year 1992. He had completed nearly 22 years when the DPC had last met. To deny somebody a promotion and to allow his juniors to march over him without even intimating him that his CCC examination certificate was invalid, would amount to an act which marks of arbitrariness. Communication dated 14.12.2009 had been in-warded on 20.12.2009 by the office of DEO. Had his certificate not been valid, it would have been communicated to him. This Court is conscious that the petitioner had applied to GCVT. However, such examination could not be conducted, and therefore, he once again applied under GTU on 23.7.2014. As his certificate was of the year 2007, it was treated as invalided having been obtained in pre 2009 period. 17. Resultantly, the petition is allowed. The denial of promotion to the petitioner is only on account of invalid CCC examination certificate. On both the counts, respondent No. 3 has not communicated to the petitioner of his possessing invalid certificate coupled with the fact that it was no fault of the petitioner, if the examination was not conducted by GCVT or GTU till the meeting of DPC was to be held. 18. The Apex Court in the case of K.K. Gohil vs. State of Gujarat and Others reported in (2015) 9 SCC 652 held that the examination was not conducted well within time. It was not the fault of the petitioner, and therefore, denying him the promotion on that count is an act which is not sustainable. 19. 18. The Apex Court in the case of K.K. Gohil vs. State of Gujarat and Others reported in (2015) 9 SCC 652 held that the examination was not conducted well within time. It was not the fault of the petitioner, and therefore, denying him the promotion on that count is an act which is not sustainable. 19. Petitioner's action of voluntarily applying under GCVT or GTU is being seriously questioned by the respondent authority. It is urged that he was well aware that his certificate of Ambedkar University was not valid. Confusion created by clarificatory resolution of GAD dated 17.12.2007 and subsequent resolution of the year 2.1.2009 had driven the petitioner to apply for the examination once again. That per se may not be defeating the ground for the petitioner. 20. Learned advocate for the respondents No. 5 and 6 has urged that he requires to challenge this order before the higher forum. Therefore, the operation of the order be stayed for two weeks. Request is acceded to.