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2022 DIGILAW 546 (GUJ)

THAKORBHAI JERAMBHAI AHIR v. STATE OF GUJARAT

2022-04-19

HEMANT M.PRACHCHHAK, R.M.CHHAYA

body2022
ORDER : R.M.CHHAYA, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 10.03.2022 passed by the learned Single Judge in Special Civil Application No.6153 of 2018, appellant – original petitioner has preferred this intra Court Appeal under Clause 15 of the Letters Patent. 2. Following facts emerge from the record of the appeal: 2.1. The appellant was appointed as an Instructor having qualification of Diploma in Civil Engineering with ITI and was working with Navyug Vidhyabhavan Trust which was fully grantin-aid Institute. As the record indicates that the appellant was promoted to the post of Supervisor Instructor in the year 1996 and in the same year the said post was re-designated as Foreman. As the incumbent on the post of Superintendent retired from service, the appellant was given charge of Superintendent on temporary basis subject to regular filling up the said post from regular recruitment. It also further appears from the record that the respondent Trust passed the Resolution dated 23.09.2014 giving the temporary charge to the appellant as a Superintendent. As the record further unfolds that vide order dated 7.4.2016 the respondent no.1 – State promoted one Anilkular Prabhubhai Patel to the post of Superintendent as well as one Mohanbhai Gafurbhai Desai to the same post while appellant- petitioner was on temporary charge from 2014. It is also matter of record that the respondent no.4 recommended the appellant be promoted as Superintendent which request was not accepted keeping in mind the provision of Circular dated 28.3.1985 and denial of the same giving rise to filing of writ petition under Article 226 of the Constitution of India challenging the communication dated 16.1.2017 and for other prayers as prayed for in the writ petition. The learned Single Judge after considering the submissions made was pleased to dismiss the same and hence this Appeal. 3. Heard Mr. M A Parekh, learned advocate for the appellant and Mr. Tirthraj Pandya, learned Assistant Government Pleader for the respondent nos. 1 to 3 on advance copy. 4. Mr. Parekh, learned advocate for the appellant has predominantly contended that the petition has been dismissed only on the sole ground that the appellant does not possess the requisite qualification for the post of Superintendent. Mr. Tirthraj Pandya, learned Assistant Government Pleader for the respondent nos. 1 to 3 on advance copy. 4. Mr. Parekh, learned advocate for the appellant has predominantly contended that the petition has been dismissed only on the sole ground that the appellant does not possess the requisite qualification for the post of Superintendent. Mr. Parekh referring to the Government Resolution dated 28.3.1985 and further referring to the Rules for Recruitment in Grant-in-Aid and more particularly, clause 2 appearing at page 50 of the paper book which relates to the Superintendent (Technical), contended that though it is a matter of fact that clause 2(1) prescribes that a person for being considered to the post of Superintendent by way of promotion should possess educational qualification as required for the direct recruitment. The fact remains that the appellant had requisite qualification and on the contrary more experience than what is provided in clause 2(2). Mr. Parekh further referring to the clause 1 of the said Schedule A (Parisisth A) contended that while considering appointments for the post of Superintendent, it was incumbent upon the State to maintain ratio of 1:1 i.e. direct recruit and promotees. Mr. Parekh further contended that as per communication dated 7.4.2016 and so also 1.8.2016 the post where already notified and the appellant ought to have been promoted from the date which is claimed by the appellant in the present petition. Mr. Parekh also contended that the other similarly situated persons have been promoted to the post of Superintendent whereas recommendation made by the trust, in which, the appellant was working since more than 5 years has been declined without any reason. At last, Mr. Parekh also referred to the Circular dated 28.3.1985 and the Rules relating to the direct recruitment and contended that for the post of Foreman, the qualification prescribed is of graduation in Engineering and / or Diploma holder with five years experience. On the aforesaid ground, it was also contended that appeal requires consideration. Alternatively, Mr. Parekh also contended that the matter be remanded back as the learned Single Judge has not considered this aspect. 5. Mr. Tirthraj Pandya, learned Assistant Government Pleader has supported the impugned judgment and order passed by the learned Single Judge. 6. No other and further submissions, contentions and grounds have been raised by the learned advocates for the respective parties. 7. 5. Mr. Tirthraj Pandya, learned Assistant Government Pleader has supported the impugned judgment and order passed by the learned Single Judge. 6. No other and further submissions, contentions and grounds have been raised by the learned advocates for the respective parties. 7. At the outset, it deserves to be noted that the policy initiated by the State Government vide Circular dated 28.03.1985 which is heavily relied upon by Mr. Parekh, learned advocate for the appellant prescribes as under: (2) Superintendent (Technical) The Promotional post shall be filled on seniority cum merit basis from the cadre of foreman instructor of the organization by promotion, possessing the following qualification. (1)He shall possess the educational qualification, prescribed for direct recruitment of this post. (2)He must have at least five years experience in the cadre of foreman instructor. The ratio of promotion and direct recruitment will be 1:1 respectively. 7.1. It is an admitted position that the appellant is not a graduate in Engineering but he is a Diploma holder. As rightly considered by the learned Single Judge any person either coming through process of direct recruitment or promotion should have degree of Mechanical Engineer or Electronic Engineer/Diploma/Degree which the appellant does not possess. Only because the appellant was appointed to the said post as stopgap arrangement, no right accrues in favour of appellant, if he does not possess requisite qualification. The other limb of argument put forward by Mr. Parekh deserves to be negatived. Clause 2(2) cannot be separately read into as to mean that if a person has requisite experience or more experience, the qualification is to be given go bye. The provisions of clause 2(1)(2) are to be harmoniously read and more particularly when these are requisite qualifications required for consideration for the promotion post. 8. Even contention raised based upon the fact that ratio of 1:1 is to be maintained between direct recruit and promotee only because a promotee is not available a promotee who is otherwise not qualified cannot be considered for promotion only on the ground that ratio is to be maintained. 9. Even the other contention raised that the benefit was given to other similarly situated persons would not take case of the appellant any further as any negative inequality has no force of law. 9. Even the other contention raised that the benefit was given to other similarly situated persons would not take case of the appellant any further as any negative inequality has no force of law. The record clearly established the fact that appellant does not hold educational qualifications which is needed for the post of Superintendent and therefore, even as per Clause 2.2 of Circular dated 28.03.1985, the criteria is of merits which cannot be given a go bye for considering the case of the appellant. The learned Single Judge has very succinctly considered all these aspects and has observed thus: “.8. It is not disputed that the petitioner was given the charge as Superintendent on temporary basis, subject to filling up the post of Superintendent from the regular recruitment, which is reflected in the letter dated 09.08.1994 addressed to the respondent No.1. The case of the petitioner is not considered by the respondent-State in view of the Circular dated 22.05.1985. As per the Circular dated 28.03.1985, the minimum qualification for getting appointed/promoted to the post of Superintendent is “any person either coming through the process of direct recruitment or promotion should have degree of Mechanical Engineering or Electrical Engineering or even the Diploma/Degree in the Mechanical or Electrical Engineering”, which the petitioner does not possess. 9. The petitioner has heavily placed reliance on paragraph No.2 of Circular dated 28.03.1985, which prescribes both educational qualification and experience for the post of Superintendent. It is the case of the petitioner that preference has to be given either to “educational qualification or experience”. In the opinion of this Court, there is an absolute misreading and misinterpretation of the provision of paragraph No.2 of the petitioner. The same cannot in any manner be construed that an incumbent has to be appointed/promoted only on the basis of experience only to the post of Superintendent and the educational qualifications are totally required to be ignored. Merely, because the petitioner was given the charge of Superintendent, the same cannot give rise to any claim for regular promotion de hors the educational qualification. The respondent-Trust, for its convenience, had given the charge of Superintendent to the petitioner. Such action of the Trust cannot bind the State Government and such temporary charge of promotion cannot be enforced. Merely, because the petitioner was given the charge of Superintendent, the same cannot give rise to any claim for regular promotion de hors the educational qualification. The respondent-Trust, for its convenience, had given the charge of Superintendent to the petitioner. Such action of the Trust cannot bind the State Government and such temporary charge of promotion cannot be enforced. The respondent-Trust has to follow the grant-in-aid code which regulates their functioning and it cannot act against the interest of the State, unless such action is approved under any Rules or regulations. 10. In the facts and circumstances of the present case, this Court is of the considered view that the petitioner does not possess the requisite qualification for the post of Superintendent, except working as incharge Superintendent on temporary basis till his retirement. Thus, this Court has no hesitation in holding that the recommendation of the petitioner has rightly been rejected by the respondent-State on the ground of non-fulfilling the requisite educational qualifications.” 10. We are in total agreement with the conclusions arrived at by the learned Single Judge. No interference is called for. The Appeal being meritless, deserves to be dismissed. Considering the fact that appellant has already attained the age of superannuation, we desist from imposing any cost upon the appellant. As the appeal is dismissed, connected Civil Application also stands dismissed.