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2020 DIGILAW 810 (GUJ)

Shilpa Jayesh Parikh v. State Of Gujarat

2020-09-24

A.J.DESAI

body2020
JUDGMENT : 1. The present petition is finally heard in view of the order dated 25.10.2019 passed by the coordinate Bench of this Court by which the petition was admitted and fixed for final hearing. 2. By way of the present petition under Articles 14, 16, 21, 309 and 226 of the Constitution of India, the petitioner has prayed as under :- “(A) This Hon’ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the form of mandamus or any other appropriate writ, order or direction directing the respondent State to complete the promotional exercise for considering the case of the petitioner to the post of Professor in Oral Medical and Radiology. (AA) This Hon’ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the form of mandamus or any other appropriate writ, order or direction declaring the action of respondent commission in declaring the petitioner ineligible and respondent No.4 as eligible as violative of Articles 14 and 16 of the Constitution of India. (B) This Hon’ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the form of mandamus or any other appropriate writ, order or direction quashing and setting aside the advertisement dated 15.6.2016 issued by the respondent Gujarat Public Service Commission on 18.6.2016. (BB) Hon’ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the form of mandamus or any other appropriate writ, order or direction declaring the action of respondent Commission reflected in communication dated 18th March 2019 incorporating the rider that petitioner does not have the requisite experience as well as the decision of the State as dated 11th June 2019 as reflected in the affidavit-in-reply dated 1st July 2019 refusing to appoint the petitioner on the post of professor as violative of Articles 14 and 16 of Constitution of India. (C) During the admission, pendency and final disposal of this petition be pleased to restrain the respondent Gujarat Public Service Commission from taking any steps pursuant to the advertisement dated 15.6.2016 for the post of Professor in Oral Medical and Radiology;” 3. (C) During the admission, pendency and final disposal of this petition be pleased to restrain the respondent Gujarat Public Service Commission from taking any steps pursuant to the advertisement dated 15.6.2016 for the post of Professor in Oral Medical and Radiology;” 3. In response to the notice issued by this Court, the respondent No.3 i.e. Secretary, Gujarat Public Service Commission filed affidavit-in-reply on 27.7.2016 whereas respondent No.1 – State of Gujarat filed affidavit-in-reply on 5.8.2016. Further affidavit on behalf of respondent No.3 came to be filed on 1.7.2019 and additional affidavit on behalf of respondent No.3 came to be filed on 12.7.2019 and the respondents have opposed grant of any reliefs as prayed for. 4. The case put forward by the petitioner is as under :- 4.1 That the petitioner is holding the qualification of BDS and post graduate qualification of MDS (Oral Medical Radiology), procured by her in the year 1993. In pursuance to the advertisement issued by respondent No.3 – Gujarat Public Service Commission for the post of Tutor, the petitioner came to be appointed as Tutor with respondent No.2 – Dean Government Dental College on 8.9.1992. 4.2 After rendering about 9 years of service as a Tutor, the petitioner was appointed as ad-hoc Assistant Professor on 4.4.2001 by Commissioner, Health, Medical Services and Medical Education (Medical Education), Gandhinagar. Thereafter, she was given regular promotion as Assistant Professor on 16.5.2001. The petitioner continued on the said post and by order dated 6.9.2001, the petitioner was given continuity in the post of Assistant Professor w.e.f. 4.4.2001 by the State of Gujarat. 4.3 The petitioner was appointed as Ad-hoc Professor on 28.3.2012 and she continuously worked as Ad-hoc Professor till date. It is the case of the petitioner that when she was appointed as a Tutor, thereafter Assistant Professor and Ad-hoc Professor, the existing rules which are known as Professors in the Dental Subject Recruitment Rules, 1974 (hereinafter referred to as ‘1974 Rules’) were applicable. The said 1974 Rules were issued by the Health and Family Welfare Department of the State of Gujarat on 11.4.1974. It is the case of the petitioner that since she is possessing the academic qualification and having requisite teaching experience as Assistant Professor for more than five years in a Dental College, she was eligible for the post of regular Professor and not Ad-hoc Professor. It is the case of the petitioner that since she is possessing the academic qualification and having requisite teaching experience as Assistant Professor for more than five years in a Dental College, she was eligible for the post of regular Professor and not Ad-hoc Professor. It is also the case of the petitioner that several Professors similarly situated who were working as either Assistant Professors or Ad-hoc Professors requested the respondent Authority to consider their case for promotion and hence, the procedure to consider their case begun. Before the same is finalized, the State of Gujarat through Health and Family Welfare Department issued a Notification dated 2.12.2015 by which Rules were framed which are known as Professor, Class I, in the dental subject in the Government Dental Colleges and Hospitals Recruitment Rules, 2015 wherein it is provided that a person would be entitled for the post of promotion, if he/she has worked for not less than five years in the cadre of Reader or Assistant Professor. Subsequent thereto, another Notification dated 11.5.2016 came to be issued by the State of Gujarat by which rules for recruitment to the post of Reader / Associate Professor, Class I, General State Service, in the dental subject were framed which are known as Reader / Associate Professor, Class I, General State Service in the dental subjects mentioned in the annexure at the Government Dental Colleges and attached Hospitals Recruitment Rules, 2016 it was provided that a person would be entitled for the promotion to the post of Associate Professor if he/she has worked for not less than five years as a Lecturer or Assistant Professor etc. 4.4 When the petitioner and other similarly situated Professors prayed for promotion, their request was denied on the ground of introduction of new Rules of 2015 and 2016. Hence this petition. 5. Mr. Gautam Joshi, learned Senior Counsel assisted by Mr. Vyom H. Shah, learned advocate appearing for the petitioner has vehemently submitted that the approach of the respondent Authority in not considering the case of the petitioner for promotion to the post of Professor is contrary to the law and the respondents have not followed the decisions of the coordinate Benches of this Court wherein the case of similarly situated Professors of Dental Colleges have been decide. He would further submit that it is an undisputed fact that when the petitioner was appointed as Tutor on 8.9.1992, the existing Rules with regard to appointment, direct recruitment and promotion would be applicable. Similarly, the same would be applicable in the year 2001 when the petitioner was promoted as Ad-hoc Assistant Professor. It is an admitted fact that vide order dated 16.5.2001, she was promoted as Assistant Professor. At that time, it is also ordered that the salary of the petitioner would be governed under Rule 41 A of the Bombay Civil Services Rules. Therefore, it cannot be said that she was appointed as Ad-hoc Assistant Professor. 5.1 Mr. Joshi would further submit that the petitioner was promoted as Ad-hoc Professor on 28.3.2012 and has continuously worked till date. By taking me through the 1974 Rules, he would submit that a person would be entitled to be appointed to the post of Professor by promotion, if he has worked as Assistant Professor in a Government Dental College for a period of five years. Therefore, her case ought to have been considered by the respondent Authority since she was working as Assistant Professor from 16.5.2001 and thereafter as Ad-hoc Professor from 28.3.2012. He would further submit that there were no posts of Assistant Professors till 2016 when a Notification was issued by the State Authorities on 11.5.2016 by which rules for recruitment to the post of Reader / Associate Professor, Class I, General State Service, in the dental subject were framed and, therefore, there is no question of any Dentist having experience of Associate Professor. Therefore, the said Rules are not applicable to the persons who are working and teaching for more than five years before 2015 – 16. He would further submit that Rules of 2015 and 2016 are not applicable to the case of the petitioner. This aspect has been considered by the coordinate Bench and has ordered to consider the case of the similarly situated candidates. 5.2 Mr. Joshi has relied upon the unreported decision in the case of Rajesh Amrutlal Shah v. State of Gujarat and others, rendered in Special Civil Application No.12889 of 2014 decided on 12.6.2015, as well as decision in the case of Janki Girishchandra Shah v. State of Gujarat, rendered in Special Civil Application No.4932 of 2018 decided on 29.11.2019. 5.2 Mr. Joshi has relied upon the unreported decision in the case of Rajesh Amrutlal Shah v. State of Gujarat and others, rendered in Special Civil Application No.12889 of 2014 decided on 12.6.2015, as well as decision in the case of Janki Girishchandra Shah v. State of Gujarat, rendered in Special Civil Application No.4932 of 2018 decided on 29.11.2019. He would further submit that the decision rendered in the case of Janki Shah (Supra) came to be challenged by the State of Gujarat by way of Letters Patent Appeal No.192 of 2020 which came to be dismissed by the Division Bench of this Court vide oral order dated 25.2.2020. He, therefore, would submit that the petition be allowed. 6. On the other hand, Mr. Trupesh Kathiriya, learned AGP appearing for the State has opposed this petition and would submit that the case of the petitioner is different than the cases on which reliance has been placed by learned Senior advocate Mr. Gautam Joshi. He would further submit that by order dated 4.4.2001, the petitioner was appointed purely on temporary and ad-hoc basis for a period of six months, whereas it is not the case of other persons whose decisions have been relied upon by the petitioner. He would further submit that as per Notification dated 25.7.2007 issued at the instance of Dental Council of India, the State Government was supposed to frame Rules with regard to appointment of Tutor / Readers / Assistant Professors / Associate Professor as well as for the promotions amongst themselves and accordingly, Notifications were issued by the State of Gujarat on 2.12.2015 and 16.5.2016. He would further submit that it is an undisputed fact that the petitioner does not have any requisite qualification / experience for promotion since she has not worked as Associate Professor for a period of five years as provided under the Notification dated 2.12.2015. By taking me through these two Notifications, he would submit that a person would be entitled for the promotion to the post of Professor only if he or she has worked at least for five years in the Government College for the post of Associate Professor. He, therefore, would submit that the petition be dismissed. 7. By taking me through these two Notifications, he would submit that a person would be entitled for the promotion to the post of Professor only if he or she has worked at least for five years in the Government College for the post of Associate Professor. He, therefore, would submit that the petition be dismissed. 7. I have heard learned advocates appearing for the respective parties and perused various appointment orders of the petitioner, affidavit-in-reply filed by the respondents as well as gone through the Notifications and also gone through the contentions raised in the pleadings by the parties. 8. It is an undisputed fact that the petitioner was appointed as Tutor on 8.9.1992 with Government Dental College, Ahmedabad. Thereafter, she was promoted to the post of Ad-hoc Assistant Professor on 4.4.2001. Thereafter, she was promoted as regular Assistant Professor on 16.5.2001. By order dated 6.9.2001, the petitioner was given continuity in the post of Assistant Professor w.e.f. 4.4.2001. Thereafter, she was promoted as Ad-hoc Professor on 28.3.2012. It is an undisputed fact that there were no posts in existence in Dental College and, therefore, there is no question of having any person appointed or promoted on the said post. The post of Assistant Professor came in existence for the first time only on 11.5.2016 when Rules were issued by the said Notification. Therefore, the submission made by learned AGP that the petitioner is having lack of experience on the post of Associate Professor cannot be accepted particularly when the petitioner has fulfilled the criteria of having experience of teaching of more than five years as provided under the 1974 Rules. When there is no post of Associate Professor in existence till 2016, the respondent Authority cannot expect that a person would be available for the post of to be promoted as Professor who is working in the Dental College for number of years, at least more than five years. Rules 3 and 4 of the 1974 Rules read as under :- “3. Rules 3 and 4 of the 1974 Rules read as under :- “3. Appointment to the post of Professor, Class-I, in the General State Service in the dental subjects mentioned in Annexure at the Government Dental Colleges and Hospitals under the Commissionerate of Health, Medical Services and Medical Education and Research, Gujarat State shall be made either, (a) by promotion on the basis of principle of selectivity within the zone of consideration irrespective of seniority in accordance with the provisions of the Gujarat Civil Services Classification Recruitment (General) Rules, 1967 from amongst persons, who - (i) have worked for not less than five years in the cadre of Reader or Associate Professor, Class-I, in General State Service, in the concerned subject in the Government Dental Colleges and Hospitals under the Commissionerate of Health, Medical Services and Medical Education and Research, Gujarat State. (ii) have passed the qualifying examination for computer knowledge in accordance with the provisions of the Gujarat Civil Services Computer Competency Training and Examination Rules, 2006; and possesses the educational qualification as prescribed in clause (b) of rule 4 for direct selection, or (b) by direct selection. 4. To be eligible for appointment by direct selection to the post mentioned in Rule 3, a candidate shall :- (a) not be more than 45 years of age; Provided that the upper age limit may be relaxed in favour of a candidate who is already in the service of the Government of Gujarat in accordance with the provisions of the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967. (b) possess (i) academic qualifications as specified respectively against each subject in Annexure obtained from any of the Universities established or incorporated by or under the Central or State Act in India or any other educational institution recognized as such or declared to be deemed as University under Section 3 of the University Grant Commission Act, 1956; or possess an equivalent qualification recognized by the Dental Council of India; (ii) the basic knowledge of computer application as prescribed in the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967; and (iii) adequate knowledge of Gujarati or Hindi or both. (c) have atleast five years teaching experience in the concerned subject as specified in column 2 of Annexure on the post of Reader or Associate Professor, Class I, in the Dental College / Medical College recognized by the Government and Dental Council of India after acquiring the post graduate degree.” 9. The combined reading of Rules 2 and 3 makes it clear that a person is eligible to be promoted to the post of Professor if he is having five years teaching experience as Assistant Professor or Reader or Senior Lecturer in a Dental College. As stated herein above, the petitioner was initially appointed as Tutor, thereafter promoted as Assistant Professor and thereafter as Ad-hoc Professor and is working since number of years and hence, the authority ought to have considered the case of the petitioner in accordance with 1974 Rules. I am in complete agreement with the ratio laid down by the coordinate Benches of this Court in the case of Rajesh Amrutlal Shah (Supra) and in the case of Janki Girishchandra Shah (Supra). Since in the above referred decisions, the coordinate Benches of this Court have exhaustively dealt with several decisions relied upon in the said case by the parties, therefore, the same are not reiterated in the present case. 10. It is also pertinent to note that decision rendered in the case of Janki Shah (Supra) came to be challenged by the State of Gujarat by way of Letters Patent Appeal No.192 of 2020 which came to be dismissed by the Division Bench of this Court vide oral order dated 25.2.2020. Hence, I am of the opinion that the petition requires consideration and hence, the same is allowed. The respondents are directed to consider the case of the petitioner for promotion to the post of Professor in accordance with 1974 Rules as early as possible. Rule is made absolute to the above extent. Direct service is permitted.