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2021 DIGILAW 570 (GUJ)

STATE OF GUJARAT v. SHILPA JAYESH PARIKH

2021-07-12

NIRZAR S.DESAI, R.M.CHHAYA

body2021
JUDGMENT : R.M.CHHAYA, J. 1. Feeling aggrieved and dissatisfied by the judgment and order dated 24.09.2020 passed by the learned Single Judge (Coram : A.J. Desai, J.) in SCA No. 10647/16, the appellants-original respondents no.1, 2 and 5 have preferred this appeal under clause 15 of the Letters Patent. 2. Heard Ms. Jyoti Bhatt, learned AGP for the appellants and Mr. Gautam Joshi, learned Senior Advocate assisted by Mr. Vyom Shah, learned advocate for respondent no.1-original petitioner on advance copy. The learned advocates appearing for the parties have also submitted their written submissions, which are taken on record and made basis of this judgment and order. 3. The facts giving rise to the present appeal can be summed up as under - 3.1 That the respondent no.1-original petitioner is holding qualification of BDS and post graduate qualification of MDS (Oral Medical Radiology). That the respondent no.1-original petitioner applied for the post of Tutor in response to the advertisement issued by Gujarat Public Service Commission and the respondent no.1-original petitioner came to be appointed as Tutor with the appellant no.2, i.e., Dean Government Dental College on 08.09.1992. The record indicates that after putting in service of about 9 years as Tutor, the respondent no.1-original petitioner was appointed as ad-hoc Assistant Professor w.e.f. 04.04.2001 and thereafter she was accorded regular promotion as Assistant Professor w.e.f. 16.05.2001 and the appellants themselves gave benefit of continuity to the respondent no.1-original petitioner in the post of Assistant Professor from the date of her appointment as adhoc Assistant Professor w.e.f. 04.04.2001. 3.2 Thereafter, the respondent no.1-original petitioner was appointed as ad-hoc professor from 28.03.2012 and she continued to work on the said post till date. It is the case of the respondent no.1- original petitioner that when she was appointed as Tutor in the year 1993, her services were governed by the Professors in the Dental Subject Recruitment Rules, 1974 (hereinafter referred to as the “Rules”). The record indicates that the 1974 Rules came into existence on 11.04.1974. It is the case of the petitioner that as she completed more than 5 years in Dental College as Assistant Professor, she was eligible for the post of regular Professor. Relying upon the similarly situated cases, it was contended by the respondent no.1-original petitioner, that she is entitled to promotion to the post of Professor. It is the case of the petitioner that as she completed more than 5 years in Dental College as Assistant Professor, she was eligible for the post of regular Professor. Relying upon the similarly situated cases, it was contended by the respondent no.1-original petitioner, that she is entitled to promotion to the post of Professor. 3.3 The record indicates that meanwhile, by notification dated 02.12.2015, new rules came to be introduced known as Professor, Class I, in the dental subject in the Government Dental Colleges and Hospitals Recruitment Rules, 2015 (hereinafter referred to as the “2015 Rules”), wherein inter alia it was provided that a person would be entitled for promotion to the post of Professor, who has worked for not less than 5 years in the cadre of Reader or Associate Professor. Again by subsequent notification dated 11.05.2016, the appellant no.1 framed rules for the post of Reader/Associate Professor, Class-I, General State Service, in the dental subjects mentioned in the annexure at Government Dental Colleges and attached Hospitals Recruitment Rules, 2016, wherein it is provided that the person would be entitled for the promotion to the post of Associate if he/she has worked for not less than 5 years as a Lecturer or Assistant Professor. The record indicates that on new Rules of 2015 and 2016 being introduced, the respondent no.1-original petitioner was denied promotion on the ground of introduction of new Rules and hence, the respondent no.1 approached this Court by way of writ petition under Article 226 read with Articles 14, 16 and 21 and 309 of the Constitution of India, and inter alia 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;” 3.4 It was contended by respondent no.1-original petitioner that the case of the respondent no.1- original petitioner for promotion are governed by the 1974 Rules and that the salary of the Respondent no.1-original Petitioner would be governed under Rule 41A of the Bombay Civil Services Rules. Relying upon Rules 3 and 4 of the 1974 Rules, it was contended by the respondent no.1-original petitioner that though the case of the respondent no.1-original petitioner was under consideration for promotion before the introduction of 2015 and 16 Rules, the said decision was deferred and promotion was denied on the ground of introduction of new rules of 2015 and 2016. It was contended by the original petitioner that there was no post of Associate Professors till 2016 and that the new rules would not be applicable in case of the respondent no.1-original petitioner. The original petitioner heavily relied upon the judgment rendered in similarly situated case being 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. The original petitioner heavily relied upon the judgment rendered in similarly situated case being 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. 3.5 The learned counsel for the appellants herein opposed the petition and contended that the respondent no.1-original petitioner was appointed purely on temporary and adhoc basis for a period of six months and that the Rules of 2015 and 2016 were framed at the instance of Dental Council of India. It was also contended that it is an undisputed fact that the respondent no.1-original 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 02.12.2015 and therefore, it was contended on behalf of the appellants that the respondent no.1-original petitioner is not entitled to promotion. 3.6 The learned Single Judge after considering the judgment of Rajesh Amrutlal Shah (supra) and Janki Girishchandra Shah (supra) as well as in LPA No. 192 of 2020, was pleased to dismiss the petition and hence, this appeal. 4. Ms. Jyoti Bhatt, learned AGP reiterated the submissions made before the learned Single Judge and contended as under- (1) That the respondent no.1 was appointed purely on temporary or ad hoc basis by way of order dated 04.04.2020 and that respondent no.1-original petitioner was given promotion as Assistant Professor by order dated 16.05.2001. (2) It was pointed out by Ms. Jyoti Bhatt, learned AGP that the appointment of respondent no.1-original petitioner was governed by 1974 Rules and other Rules published by the State Government from time to time. (3) It was reiterated by Ms. Bhatt that the original Petitioner does not possess requisite qualification/experience as mentioned in the notification/rules. (4) It was also contended that the case of Rajesh Amrutlal Shah and Janki Girishchandra Shah are on different footing and would not apply to the case of the respondent no.1-original petitioner. (5) Referring to 2015 Rules, it was contended by Ms. Bhatt, learned AGP that the respondent no.1 does not possess 5 years experience for the post of Associate Professor and therefore, she was not entitled for promotion. It was contended by Ms. (5) Referring to 2015 Rules, it was contended by Ms. Bhatt, learned AGP that the respondent no.1 does not possess 5 years experience for the post of Associate Professor and therefore, she was not entitled for promotion. It was contended by Ms. Bhatt that in the case of Dr. Rajesh Amrutlal Shah, relied upon by the learned Single Judge, Rules of 2015 were not in existence and therefore, the case of the respondent no.1-original petitioner is different from the case relied upon by the learned Single Judge of Dr. Rajesh Amrutlal Shah and Janki Shah in LPA No. 192 of 2020. On the aforesaid grounds therefore, it was contended by Ms. Bhatt, learned AGP that the appeal requires consideration and deserves to be allowed by quashing and setting aside the impugned judgment and order. 5. Per contra, Mr. Joshi, learned senior advocate has taken this Court through the factual matrix arising out of this petition and has contended as under - (1) It was contended by Mr. Joshi that the promotional exercise would commence with calling for files as averred by respondent no.1-original petitioner and as recorded by the learned Single Judge. It was further contended by Mr. Joshi that the files could not have been left halfway in view of the judgment in the case of Dr. Rajesh Shah as well as the judgment of the Apex Court in the case of Major General H M Singh vs. Union of India reported in 2014 (3) SCC 670 . (2) It was contended by Mr. Joshi that when the vacancies are available and candidates are available, citizen has a fundamental right of being considered against such vacancy more so when the process had already commenced therefor. (3) It was contended by Mr. Joshi that the feeder cadre of Associate Professor was not in existence when the recruitment rules for the post of professor were framed on 02.12.2015. It was also contended by Mr. Joshi, learned senior advocate that the recruitment rules for the post of Associate Professor were framed in May 2016. Therefore, if the same is made operational, the first eligible associate professor would be available only in 2022 after the post is filled in 2017. (4) Mr. It was also contended by Mr. Joshi, learned senior advocate that the recruitment rules for the post of Associate Professor were framed in May 2016. Therefore, if the same is made operational, the first eligible associate professor would be available only in 2022 after the post is filled in 2017. (4) Mr. Joshi contended that the learned Single Judge has rightly relied upon the judgment in the case of Rajesh Amrutlal Shah (supra) and Janki Girishchandra Shah (supra) and has rightly allowed the petition. It was submitted by Mr. Joshi, learned senior advocate that the appeal is meritless and the same deserves to be dismissed. 6. No other or further submissions have been made by the learned counsel appearing for the parties. 7. The learned Single Judge, after appreciating the factual matrix, has observed thus - “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 Adhoc 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.” 8. As far as the factual matrix as regards appointment of the respondent no.1-original petitioner to the post of tutor is concerned, the same is not disputed. As per the record of the petition, the respondent no.1-original petitioner came to be appointed as tutor vide order dated 09.09.1992 and thereafter was appointed ad-hoc Assistant Professor and thereafter as full-fledged Assistant Professor as discussed hereinabove. As per the record of the petition, the respondent no.1-original petitioner came to be appointed as tutor vide order dated 09.09.1992 and thereafter was appointed ad-hoc Assistant Professor and thereafter as full-fledged Assistant Professor as discussed hereinabove. It is a matter of record that after completion of 10 years of service in June 2011, the appellant called for files of all eligible candidates Assistant Professors eligible to be promoted to the post of Professor and at that point of time, Rules in question were 1974 Rules. As averred by the original petitioner, which is not denied by the appellants is that the case of Dr. Rajesh Shah was also under consideration along with the case of respondent no.1-original petitioner. As the process of consideration of promotion was left half way as new recruitment rules to the post of Professor were in contemplation, Dr. Rajesh Shah approached this Court by way of filing SCA No. 12889 of 2014 and it is a matter of fact that the Hon’ble Court accepted the petition and issued directions to complete the process of promotion. As can be seen from the record, the said judgment is accepted and implemented by the appellants. As noted by the learned Single Judge, the judgment rendered by the learned Single Judge of this Court in SCA No. 4932 of 2018 dated 29.11.2019 was challenged by the appellants by way of filing LPA No. 192 of 2020, which came to be dismissed by the coordinate Bench vide order dated 25.02.2020. In the said case, the original petitioner Janki Girischandra Shah was appointed as Tutor in Periodontia in Government Dental College and Hospital, Jamnagar on 18.09.1991. The said petitioner Janki-Girischandra Shah thereafter applied for the post of Tutor in Public Health Dentistry at Government Dental College and Hospital at Ahmedabad and was appointed as adhoc tutor on 05.12.1992 and continued to work till 01.12.1997. As can be seen from the judgment rendered by the coordinate Bench in LPA No. 192/2020, the said petitioner was thereafter appointed as Assistant Professor, but was ultimately denied promotion to the post of Promotion on the similar grounds. The Hon’ble Division Bench after considering the aspect of 2015 Rules, has observed thus - “8. Having heard learned advocates appearing for the parties and having gone through the material on record, prima facie, we found some substance in the plea of learned senior counsel Mr. The Hon’ble Division Bench after considering the aspect of 2015 Rules, has observed thus - “8. Having heard learned advocates appearing for the parties and having gone through the material on record, prima facie, we found some substance in the plea of learned senior counsel Mr. Tanna and it is an un-controverted factual position prevailing on record that the relevant post is very much available for which the original petitioner is fulfilling the eligibility criteria. Additionally, there is substantial compliance of the relevant Rules since the petitioner was in fact holding the charge of Professor and Head of the Department right from 2012. When that be the situation, there is hardly any scope available for the authority to agitate the grievance against the findings arrived at by learned Single Judge. In our considered opinion, the order passed by learned Single Judge is in conformity with the relevant record and is based on proper analysis of the material and the factual background and hence, we deem it proper not to substitute our view in place of the possible view which has been adopted by learned Single Judge. From a bare perusal of the order in question, it appears that the contention raised by learned Assistant Government Pleader Ms. Thakore had been properly dealt with by learned Single Judge and the observations contained in the paragraphs of the impugned order itself make it clear that there is hardly any illegality or irregularity in the order impugned in the appeal. 9. We are in close conformity with the observations and the conclusions arrived at by learned Single Judge. Accordingly, we deem it proper to reproduce the relevant paragraphs of the judgment hereunder:- “5.4. The principal plank of contention to deny the petitioner the right to promotion, as raised by the respondents, is the coming into force the Rules called Professor, Class-I in the Dental Subjects in Government Dental College & Hospital Recruitment Rules, 2015. What is sought to be insisted that unless the petitioner works as Associate Professor with experience of five years, she cannot be eligible under the Rules of 2015. It is an uncontroverted factual position that there existed no posts of Reader or Associate Professor from 01st May, 1960 till 02nd December, 2015 in any of the Dental Colleges of the State. It is an uncontroverted factual position that there existed no posts of Reader or Associate Professor from 01st May, 1960 till 02nd December, 2015 in any of the Dental Colleges of the State. Even the Rules for appointment to the post of Associate Professor came to be notified by Notification dated 11th May, 2016 called Reader/Associate Professor, Class-I General State Services in Dental Subjects mentioned in Annexure in Government Dental Colleges and Attached Hospitals Recruitment Rules, 2016. 5.5. The whole contention on part of the respondents that the promotional hierarchy has changed which would disentitle the petitioner from promotion, is misconceived. The question of petitioner having experience of Associate Professor or on the post of Reader would not be relevant and would not arise. The petitioner's case for promotion to the post of Professor, Public Community Dentistry was required to be considered irrespective of and notwithstanding the Rules sought to be relied on, as those Rules could not operate to deprive the petitioner her overdue promotion. 5.6 The Rules of 2015 cannot operate to bar the eligibility of the petitioner to the post of Professor, when the petitioner had already acquired the eligibility before coming into force the Rules, and further on admitted facts, vacancy was available. The petitioner, as stated above, was eligible under Rules of 1974 which were in vogue when right to be promoted for the petitioner accrued and crystalised. The Rules of 2015 could not be applied to the petitioner to decline the fructification of petitioner's right to be promoted as Professor, Community Dentistry. The petitioner was already recommended for the promotional post of Professor and that she was already holding the charge of the post since September, 2012. It was quite unjust and unreasonable on part of the respondents to deny the promotion avenue to the petitioner. 6. Moreover and importantly, the facts of the case of Dr.Rajesh Amrutlal Shah (supra) who had filed Special Civil Application No.12998 of 2014 before this Court culminating into his promotion, were quite akin to the present petitioner. For comparative reference, the same may be noticed as under. 6. Moreover and importantly, the facts of the case of Dr.Rajesh Amrutlal Shah (supra) who had filed Special Civil Application No.12998 of 2014 before this Court culminating into his promotion, were quite akin to the present petitioner. For comparative reference, the same may be noticed as under. (i) Said Rajesh Shah came to be appointed as Tutor through Gujarat Public Service Commission on 04th June, 1987, prior to which he was Medical Officer; (ii) Between 03rd May, 1994 and 14th October, 1994 he worked as Assistant Professor ad hoc at Medical College, Jamnagar; (iii) Between 15th October, 1994 and 26th March, 2002 he worked as a regular Tutor at the Dental College, Ahmedabad; (iv) Between March, 2002 to July, 2006 he was Ad hoc Assistant Professor at Ahmedabad; (v) On the basis of the Resolution dated 19th March, 2015 of the State Government, service period of said Mr.Shah between 27th March, 2003 and 12th July, 2006 was treated as regular. On 13th July, 2006 he was appointed as regular Assistant Professor at the Government Dental College, Ahmedabad; (vi) Since February, 2005 he held the additional charge of the post of Professor; (vii) In February, 2009 he came to be appointed as Professor in Pharmacology (Ad hoc) and has been working on the said post till date; (viii) upon his request for promotion to the post of Professor, Pharmacology upon completion of 10 years of service as an Assistant Professor, the Director, Medical & Health Services, called for details of all the Assistant Professors who had completed nine years of service; (ix) Petitioner's details were called for in June, 2011 and were processed. 6.1 As the exercise came to a standstill thereafter, writ petition was filed by the said Dr.Shah which resulted into order dated 12th June, 2015 whereby the Court observed regarding his promotional right and directed consideration for his promotion. As the directions were not complied with, contempt proceedings came to be filed, during which blowing down to the Court's order, the respondents issued promotion order promoting said Dr.Shah.” 10. From the aforesaid circumstances, which are prevailing on record, the observations are not possible to be construed by us as perverse in any form, which would enable us to exercise our appellate jurisdiction. On the contrary, learned Single Judge has maintained the judicial discipline by observing the decisions delivered by the Supreme Court quoted in the order. From the aforesaid circumstances, which are prevailing on record, the observations are not possible to be construed by us as perverse in any form, which would enable us to exercise our appellate jurisdiction. On the contrary, learned Single Judge has maintained the judicial discipline by observing the decisions delivered by the Supreme Court quoted in the order. With a view to avoid unnecessary burden, we are not inclined to reproduce the said decisions and the extracts contained therein. But, we make it clear that we are in conformity with the view taken by learned Single Judge, who ultimately disposed of the petition by assigning cogent reasons. The ultimate outcome which is reflected in para 10, since relevant, we quote the same hereinafter:- “10. For the discussion and reasons foregoing, (a) It is directed that case of the petitioner for the purpose of promotion to the post of Professor of Community Dentistry shall be considered and it shall be further considered on the lines of the case of Dr. Rajesh Amrutlal Shah (supra) decided by this Court on on 12th June, 2015, on the basis of the findings recorded therein and decision taken by the authorities pursuant to the said order; (b) The petitioner shall be accorded similar treatment in the matter of promotion to the post of Professor, Community Dentistry; (c) In the facts of the case of the petitioner herein, it is directed that the respondents shall consider the case of the petitioner for promotion with effect from 2012 to the post of Professor of Community Dentistry as directed above within four weeks from the date of receipt of the present order.” 11. On basis of this material and on the basis of the true construction of the relevant Rules, having independently perused, we are unable to exercise our appellate jurisdiction to substitute the view taken by learned Single Judge as the same is a reasonable and possible view. It is under this set of circumstances, that the impugned action of the authority is not only unjust and arbitrary but deserves to be corrected, which has been rightly done by learned Single Judge.” 9. In the case on hand also, similar circumstances arise. It is under this set of circumstances, that the impugned action of the authority is not only unjust and arbitrary but deserves to be corrected, which has been rightly done by learned Single Judge.” 9. In the case on hand also, similar circumstances arise. As averred by the respondent no.1-original petitioner, she had completed 10 years of service in June 2011 and files were called for, but the process of consideration of promotion was left halfway as in the case of Dr. Rajesh Shah as well as in the case of Dr. Janki Girishchandra Shah. When the avenue for promotion of respondent no.1-original petitioner accrued, 1974 Rules were in operation. The post of Associate Professor, as rightly pointed out by Mr. Joshi, learned senior advocate, was created based upon the recruitment rules framed in 2015/2016. The learned Single Judge has succinctly considered the said aspect and relied upon Rules 3 and 4 of 1974 Rules and has correctly come to the conclusion on combined reading of Rule 2 and 3 that the respondent no.1-original petitioner fulfils requirement of 5 years of teaching experience as Assistant Professor or Reader and more particularly as Assistant Professor in the instant case in the dental college. 10. We are in total agreement with the findings and reasons given by the learned Single Judge and it cannot be said that the case of Rajesh Amrutlal Shah (supra) and Janki Girishchandra Shah (supra) are different and distinct in any manner as the learned AGP has tried to canvass and therefore, denial of promotion to the respondent no.1 is expressly violative of Articles 14 and 16 of the Constitution of India as held by the Hon’ble Apex Court in the case of Major General H M Singh (supra). All the contentions raised by the learned advocate for the appellant fails and the appeal being meritless, deserves to be dismissed and is hereby dismissed. As the appeal is dismissed, the connected Civil Application also stands dismissed. However, there shall be no order as to costs.