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2024 DIGILAW 1587 (GUJ)

Jitendra Natvarlal Shah v. State of Gujarat

2024-07-19

VAIBHAVI D.NANAVATI

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JUDGMENT : Vaibhavi D. Nanavati, J. 1. Since the issued involved in both the captioned petitions is the same and analogous, both the petitions are heard and disposed of by this common judgment. The petition being Special Civil Application No.16544 of 2016 be treated as the lead matter. 2. By way of the present petitions, the petitioners challenged the order dated 29.03.2016 passed by the respondent no.1 – authority rejecting the claim of the petitioner for up-gradation. 3. Brief facts leading to filing of the present petitions read thus:- 3.1. The petitioner came to be appointed as Assistant Lecturer on 11.07.1983 on ad-hoc basis in the Textile Chemistry Department of R.C. Technical Institute, Ahmedabad and was lastly serving as Assistant Lecturer in Textile Chemistry Department in RCTI, Ahmedabad and retired with effect from 14.06.2016 and thus, from the date of joining till the date of retirement, all though, the petitioner worked on post of Assistant Lecturer, the same was without any promotion. 3.2. It is the case of the petitioner that by order dated 20.04.1992, the services of the petitioner came to be regularized with effect from 11.07.1983. It is the case of the petitioner that on 19.06.1964, the Government of Gujarat framed the lecturer in Polytechnics Gujarat Educational Service Class-II (Collegiate Branch) Recruitment Rules, 1964 (for short, “the Rules of 1964”) in exercise of powers conferred by the proviso to Article 309 of the Constitution of India for appointment to the post of Lecturer in Engineering Departments in Degree Engineering Colleges and Polytechnics. It is the case of the petitioner that as per clause 2(II) (Alternative), to be eligible for appointment by nomination to the post of lecturer in polytechnics, a candidate must possess diploma in the respective branch of engineering of a recognized institute at least in the second class and must additionally have at least 7 years’ teaching experience in a Degree Engineering College or at least 8 years teaching experience in a polytechnic or at least 7 years professional experience or a combined teaching experience in a Degree Engineering College or a polytechnic and professional experience for a total period of 8 years. 3.3. It is the case of the petitioner that the petitioner is holding diploma in his respective branch of engineering from a recognized institute in the First Class and is also possessing 8 years’ experience in a polytechnic. 3.3. It is the case of the petitioner that the petitioner is holding diploma in his respective branch of engineering from a recognized institute in the First Class and is also possessing 8 years’ experience in a polytechnic. The present petitioner would have 8 years’ teaching experience in a polytechnic on 11.07.1983. It is the case of the petitioner that similarly, as per the Non-Technical Lecturer Recruitment Rules, on 18.11.1966, a candidate must be a graduate and post-graduate and have second class in either of them. The said Recruitment Rules are duly produced at Annexure-D. 3.4. It is the case of the petitioner that on 09.11.1981, a Government Resolution was issued by the Education Department, State of Gujarat upon obtaining the consent of the Finance and General Administration Departments for grant of pay-scale of lecturer to all Assistant Lecturers, Senior Instructors in the government and non-government polytechnics drawing pay of Rs.700/- or more on or after 01.04.1979. The said Government Resolution dated 09.11.1981 is duly produced at Annexure-E. The said benefit was granted subject to certain conditions. One of the conditions for grant of pay scale of lecturer was that the appointments of such Assistant Lecturers or Senior Instructors must be in conformity with the Rules of 1964. The other condition was that as soon as the Assistant Lecturers were given the higher grade, their post would automatically stand upgraded as Lecturer. It was also noted that a similar benefit was given to Assistant Lecturers or Senior Instructors in Degree Engineering Colleges vide Government Resolution dated 11.12.1979. 3.5. It is the case of the petitioner that on 11.04.1984, an order was passed by the Education Department, State of Gujarat in line with Government Resolution dated 09.11.1981, upgrading 125 Assistant Lecturers serving in various Government Polytechnics to the post of Lecturer. The said order is duly produced at Annexure-F. On an ad-hoc basis and appointment on permanent or long term basis on the post of Lecturer is to be given only after consultation with the Gujarat Public Service Commission. 3.6. It is the case of the petitioner that on 19.02.1991, a Government Resolution was issued by the Education Department, State of Gujarat, sanctioning revision of pay-scales to the various categories of State Government employees including Government and non-Government Polytechnic teachers with effect from 01.01.1986. 3.6. It is the case of the petitioner that on 19.02.1991, a Government Resolution was issued by the Education Department, State of Gujarat, sanctioning revision of pay-scales to the various categories of State Government employees including Government and non-Government Polytechnic teachers with effect from 01.01.1986. As per Annexure – I, Government Resolution dated 19.02.1991 states that the revised scale of Lecturer with effect from 01.01.1986 was Rs.2200-4000. 3.7. It is the case of the petitioner that on 07.01.1992, the Government of Gujarat framed the Lecturer Class – II in Engineering/ Technology/Humanities/Science (in different disciplines) in Government Polytechnic Recruitment Rules, 1992 (for short, the “Rules of 1992”) in exercise of the powers conferred under the proviso of Article 309 of the Constitution of India for regulating recruitment to the post of Lecturer in Engineering/Technology/Humanities/Science (in different disciplines) in the Gujarat Educational Service Class-II (Collegiate Branch) for Technical Education, State of Gujarat. The Rules were issued in supersession of all Recruitment Rules made in this behalf for recruitment to the Engineering/Technology/Humanities/Science (in different disciplines) in the Gujarat Educational Service Class-II (Collegiate Branch). The said Recruitment Rules are duly produced at Annexure-H. As per the said Rules, appointment to the post of Lecturer in Engineering in Government Polytechnics was to be made by direct selection. To be eligible for appointment by direct selection, a candidate had to possess First Class bachelor’s Degree in appropriate branch of Engineering or Technology or its equivalent qualification of a recognized University or a First Class Master’s Degree or its equivalent qualification in appropriate branch of study for teaching post in Humanities or Science of a recognized University i.e. the qualification of Diploma in Engineering was done away with by superseding the Rules of 1964. In view thereof, no person holding a Diploma in Engineering could have been appointed to the post of Lecturer after 07.01.1992. 3.8. It is the case of the petitioner that on 02.05.1992, an order came to be passed by the respondent No.1, upgrading 99 more Assistant Lecturers teaching in the Government Polytechnics to the post of Lecturer as was done earlier in case of 125 Assistant Lecturers vide Government Resolution dated 09.11.1981. The said order was passed by the respondent No.1 after coming into force of Rules of 1992. 3.9. The said order was passed by the respondent No.1 after coming into force of Rules of 1992. 3.9. It is the case of the petitioner that on 01.10.1993, an order came to be passed by the respondent No.1, upgrading 5 Assistant Lecturers teaching English in Government Polytechnics in accordance with the Government Resolution dated 09.11.1981. The said Lecturers were possessing pass class in bachelor’s Degree whereas, the eligibility criteria as per the Rules of 1964 requires a bachelor’s Degree at least in the second class for appointment as Lecturer in English in a Government Polytechnic. Those 5 Assistant Lecturers were not eligible for appointment on the post. Despite the aforesaid facts, the said lecturers were upgraded to the post of lecturer in accordance with clause 4 of the Government Resolution dated 09.11.1981 providing for relaxation. 3.10. It is the case of the petitioner that he would stand on a better footing than those 5 Assistant Lecturers as the petitioner herein qualified to be appointed as Lecturer in accordance with the Rules of 1964 after 8 years of teaching experience in a Polytechnic. 3.11. On 27.07,1995, an order came to be passed by the respondent No.3 - Commissioner of Technical Education, granting senior sale of Rs.3000-5000 and Selection Grade of Rs.3700-5700 to 81 Lecturers serving in Government Polytechnics all-over Gujarat. It is also the case of the petitioner that upon perusal of the said list, the Lecturers were holding Diploma in Engineering and not holding Bachelor’s Degree in Engineering. 3.12. On 19.07.1996, an order was passed by the respondent No.1 upgrading 22 Lecturers teaching in Government Polytechnics to the post of Lecturers as was done earlier in the case of 125 Assistant Lecturers vide Government Resolution dated 09.11.1981. 3.13. On 06.10.1997, another order was passed by the respondent No.1 upgrading 8 more Assistant Lecturers teaching in Government Polytechnics to the post of Lecturer in line with Government resolution dated 09.11.1981. 3.14. It is the case of the petitioner that as per the old Recruitment Rules of 1964, he was eligible for appointment to the post of Lecturer in Government Polytechnics as a Diploma in Engineering in the second class was one of the eligibility criteria for the higher post of Lecturer. However, the new Recruitment Rules for the post of Lecturer in Government Polytechnics came into effect on 07.01.1992, which abolished the said eligibility criterion of Diploma in Engineering. However, the new Recruitment Rules for the post of Lecturer in Government Polytechnics came into effect on 07.01.1992, which abolished the said eligibility criterion of Diploma in Engineering. The eligibility criteria for appointment to the post of Lecturer in Government Polytechnic after 1992 is a Bachelor’s degree in Engineering from a recognized University or institute. As per the old Rules of 1964, the petitioner would complete his teaching experience of 8 years in a Government Polytechnic only in the year 1994 i.e. after coming into force the new Recruitment Rules on 07.01.1992. Thus, in the normal course, under the old Rules of 1964, the petitioner would be eligible for appointment to the post of Lecturer from 1994. 3.15. In view of the fact that the new Recruitment Rules of 1992 do not require Bachelor’s degree in Engineering for the post of Lecturer and the petitioner was required to be upgraded to the post of lecturer as was done in case of other Assistant Lecturers, teaching in Government Polytechnics vide separate order issued by the respondent No.1 on 02.05.1992 and 19.07.1996, as referred above. 3.16. It is the case of the petitioner that the petitioner’s demand for upgradation to the post of Lecturer from 1994 cannot be said to be in contravention of the new Rules of 1992 in light of the facts as stated above. 3.17. It is the case of the petitioner that the respondent no.1 – State Government felt genuine concern for the petitioner and similarly placed 34 Assistant Lecturers teaching in Government Polytechnics and addressed a communication dated 13.03.2001 to the All India Council for Technical Education, stating that on account of revision of Recruitment Rules of Lecturers serving in the Government Polytechnics from 07.01.1992, some Assistant Lecturers (being 36 in number) have been deprived of the benefit of the scheme of upgradation contained in Government Resolution dated 09.11.1981 but, for the revision of the Recruitment Rules of Lecturers with effect from 07.01.1992, such Assistant Lecturers could have been upgraded to the post of Lecturers. It was also stated that such Assistant Lecturers had rendered service in Government Polytechnics in the same cadre for many years and they could not avail the benefit of senior scale or selection grade or promotion like the Lecturers. It was also stated that such Assistant Lecturers had rendered service in Government Polytechnics in the same cadre for many years and they could not avail the benefit of senior scale or selection grade or promotion like the Lecturers. It was, therefore, proposed to waive the condition of minimum qualification i.e. B.E. First Class in case of those Lectures as a special case. 3.18. On 20.06.2001, a Government Resolution was issued by the respondent No.1 prescribing revised pay scales for teachers in Diploma level technical institutions, which would include Government Polytechnics. Such revised pay scales were to be in effect from 01.01.1996 as per Annexure-I and II of the said Government Resolution. The revised pay scale of a Lecturer with effect from 01.01.1996 was to be Rs.8000-13500. It was stated in clause 1.2(i) of Annexure-III of the said resolution that the revised qualifications and experience as contained in the said resolution would be applicable only to the new recruits. 3.19. It is the case of the petitioner that the petitioner was a teacher appointed prior to 01.01.1996, holding a Diploma in Engineering and second class and, therefore, squarely covered under clause 1.4. The same being in line with the communication dated 13.03.2001 addressed by the respondent No.1 to the All India Council for Technical Education, recommending that 36 Assistant Lecturers be given the benefit of upgradation to the post of Lecturers having rendered the service in Government Polytechnics in the same cadre for many years. 3.20. It is the case of the petitioner that corrigendum dated 28.06.2001 was issued by the present respondent No.1 for deleting clause 1.4 of the Government Resolution dated 20.06.2001. The corrigendum dated 28.06.2001 deleting clause 1.4 of Government Resolution dated 20.06.2001 was issued only to deprive the petitioner of the benefit of upgradation to the post of Lecturer. 3.21. Being aggrieved by the said corrigendum issued on 28.06.2001, deleting clase1.4 of the Government Resolution dated 20.06.2001, depriving upgradation of the petitioner to the post of Lecturer in line with communication dated 13.03.2001, the petitioner preferred Special Civil Application No.10331 of 2015, which came to be disposed of vide order dated 20.08.2015. 3.22. 3.21. Being aggrieved by the said corrigendum issued on 28.06.2001, deleting clase1.4 of the Government Resolution dated 20.06.2001, depriving upgradation of the petitioner to the post of Lecturer in line with communication dated 13.03.2001, the petitioner preferred Special Civil Application No.10331 of 2015, which came to be disposed of vide order dated 20.08.2015. 3.22. In line with the order passed in Letters Patent Appeal No.149 of 2015 and 150 of 2015, which was partly allowed vide order dated 09.07.2015, the Division Bench had issued a direction upon the State Government to consider the matter as to whether relaxation should be granted to the petitioners and consequential up-gradation of the post should be granted to the petitioner or not and the State Government was directed to take appropriate decision within a period of 3 months from the date of receipt of the said order. 3.23. After the said order was passed, the petitioner herein approached the respondent No.1 by way of a detailed representation dated 01.08.2015 narrating the grounds for consideration of the petitioner’s case for up-gradation, coupled with the fact that the other similarly situated persons were accorded the same benefits however, the petitioner was denied the said benefits. The said representation came to be rejected by the respondent – authority, rejecting the claim of the petitioner for up-gradation to the post of lecturers, the same being discriminatory and violative of Article 14 of the Constitution of India. 3.24. It is the case of the petitioner that the respondent - authorities have accorded the benefit of up-gradation in the case of one Mr. M.K. Pandya, who was wrongly extended the said benefit of up-gradation and the same came to be withdrawn. 3.25. It appears that pending the petition, the said order was the subject matter of challenge before this Court by way of Special Civil Application No.4680 of 2016, which came to be allowed. 3.26. In view of the aforesaid, the petitioner is constrained to approach this Court and has prayed for the following reliefs:- “(A). Your Lordships may be pleased to admit this Special Civil Application. (B). 3.26. In view of the aforesaid, the petitioner is constrained to approach this Court and has prayed for the following reliefs:- “(A). Your Lordships may be pleased to admit this Special Civil Application. (B). Your Lordships may be pleased to allow this petition by issuing a writ of mandamus or any other writ in the nature of order or direction by quashing and setting aside the impugned order dated 29.3.2016 and thereby be further pleased to direct respondent authorities to release the benefit of up gradation in favour of petitioner with effect from 11.07.1992. (C). Be pleased to quash and set aside the impugned corrigendum dated 28.6.2001 issued by present respondent No.1 deleting clause 1.4 of the Govt. Resolution dated 20.6.2001 Be pleased to direct respondent authorities to release the benefit of Senior Scale and Selection Grade in line with other similarly situated employees forthwith along with amount of arrears and interest accrued thereon at the rate of 12% per annum Pending admission hearing and final disposal of this petition, be pleased to direct respondents to release the benefit of senior scale and selection grade to the post of Lecturer forthwith Subject to outcome of the present petition in the interest of justice. (D). Be pleased to grant such other and further relief(s) as deemed just and proper by this Hon’ble Court in the interest of justice.” 4. Mr. Vaibhav Vyas, learned advocate appearing for the petitioner submitted that by the impugned order dated 29.03.2016 passed by the respondent - authority, the petitioner herein is erroneously denied the benefit of up-gradation in the pay-scale of lecturers. It is submitted that the respondent - authority has erroneously not granted the up-gradation for the post of lecturers by not taking into consideration the fact that the General Administration Department has already accorded its approval vide letter dated 27.05.2005. It is submitted that the respondent - authority had adopted a discriminatory approach with respect to the grievance of the petitioner. 4.1. Reliance is placed on the order passed by this Court in Special Civil Application No.2923 of 2015 and allied matters dated 08.03.2022 wherein, the benefit of senior scale and selection grade was accorded to the persons identically placed to the present petitioner. 4.1. Reliance is placed on the order passed by this Court in Special Civil Application No.2923 of 2015 and allied matters dated 08.03.2022 wherein, the benefit of senior scale and selection grade was accorded to the persons identically placed to the present petitioner. It is submitted that the aforesaid was the subject matter of challenge by the respondent – State before the Division Bench by way of three separate Letters Patent Appeals being Letters Patent Appeal Nos.108 of 2023, 109 of 2023 and 306 of 2023, which came to be dismissed by the Division Bench by order dated 30.01.2023 and 16.03.2023. 4.2. It is also submitted that one Mr. M.K. Pandya, from whom, initially the benefit of up-gradation was withdrawn, had approached this Court by preferring Special Civil Application No.4680 of 2016, which came to be allowed and in view thereof, the case of the petitioner herein stands squarely covered by the judgment rendered in the case of Mr. M.K. Pandya. 4.3. Reliance is also placed on the various orders passed by the respondent – authorities from time to time wherein, the said up-gradation was granted. It is submitted that in view of the aforesaid, the petitioner herein be granted the benefit of the Government Resolution issued by the Education Department on 09.11.1981. It is submitted that in line of the said Government Resolution, as referred above, there are other employees, who have been upgraded as Assistant Lecturers serving in various Government Polytechnics, having been upgraded to the post of lecturers. 4.4. Placing reliance on the aforesaid submissions, it is submitted that the present petition be allowed and the prayers, as prayed for, be granted. 5. Ms. Pooja Ashar, learned A.G.P. appearing for the respondent – State, placed reliance on the affidavit-in-reply filed by the respondent – State and submitted that the petitioner herein is a diploma in Textile Engineering and came to be appointed on 11.07.1983 as Assistant Lecturer in Textile Chemistry. It is submitted that the Government Resolution dated 07.01.1992 came with revision of the new Recruitment Rules according to the recommendations of the AICTE, came to be introduced wherein, the minimum qualification for the purpose of Lecturer came to be prescribed as B.E. First Class. It is submitted that by way of the said Resolution dated 20.06.2001, the respondent – State accepted the recommendation of the AICTE with regard to the revision of 5th pay scale. It is submitted that by way of the said Resolution dated 20.06.2001, the respondent – State accepted the recommendation of the AICTE with regard to the revision of 5th pay scale. It is submitted that the respondent – State relaxed the qualification for B.E.. First Class for up-gradation on the post of lecturer by inserting clause 1.4. Realizing the serious implication by corrigendum dated 28.06.2001 issued by the respondent - State, the said clause 1.4 in the resolution came to be deleted. 5.1. It is submitted that the petitioner herein preferred Special Civil Application No.23551 of 2007, challenging the said resolution dated 20.06.2001 and corrigendum dated 28.06.2001, which came to be allowed. It is submitted that the respondent – State challenged the said order by preferring Letters Patent Appeal No.150 of 2015, which came to be allowed by directing the respondent – State to consider the matter as to whether relaxation and consequential upgradation for the post should be granted to the petitioner or not. It is submitted that reliance is placed by Mr. Vyas, learned advocate for the petitioner on the different orders passed in Special Civil Application Nos.15991 of 2004, 15992 of 2004 and 15993 of 2004, wherein, this Court vide order dated 28.06.2017, allowed the said petitions, considering all the relevant resolutions passed by the State Government as well as AICTE. 5.2. With regard to the contention raised by Mr. Vyas, learned advocate with respect to discrimination, it is submitted that in the past, several employees, those who were having diploma, have not been upgraded to the post of lecturer. 5.3. It is submitted that in case of the present petitioner, the petitioner herein is holding degree in diploma and the same cannot be equated with the other employees, as the petitioner is not possessing the minimum qualification of B.E. First Class and/or graduation. The Assistant lecturers, who had reached the minimum stage of pay scale of Rs.2180/- on or before 07.01.1992, have been considered for up-gradation to the post of lecturer. In the facts of the present case, the petitioner was appointed on 18.01.1986 and on or before 07.01.1992, he did not reach the maximum scale and hence, was not entitled to up-gradation of lecturer. 5.4. It is submitted that the petitioner having not been qualified for up-gradation, no interference is called for in the present petition and same is required to be dismissed. 5.5. 5.4. It is submitted that the petitioner having not been qualified for up-gradation, no interference is called for in the present petition and same is required to be dismissed. 5.5. Reliance is placed on the additional affidavit wherein, it is submitted that the case of the present petitioner cannot be equated with the case of Mr. M.K. Pandya on the ground that Mr. Pandya possessed the requisite qualification of having a Master’s degree in Humanities and the only qualification that was lacking was the First Class in the Masters Degree. In the facts of the present case, the requisite qualification for Engineering Branch for the post of Lecturer is Bachelors in Engineering with First Class and the petitioner possesses degree of Diploma in Textile. In view thereof, the case of the petitioner cannot be equated with that of Mr. M.K. Pandya. 6. Mr. Vyas, learned advocate for the petitioner, in rejoinder, reiterated the submissions advanced and submitted that the case of the petitioner be considered, once the case of Mr. M.K. Pandya has been considered by the Court by order dated 10.06.2022 passed in Special Civil Application No.4680 of 2016 and as per the various orders passed by this Court from time to time, granting benefit of up-gradation to the Lecturers. The case of the petitioner also be considered on the same footing and the impugned order dated 29.03.2016 be quashed and set aside and the respondent – authorities be directed to release the benefit of up-gradation in favour of petitioner with effect from 11.07.1992. 7. Having heard the learned advocates appearing for the respective parties, the following emerge: 8. The respondent – authority framed Rules of 1964 for Lecturer on 19.06.1964 (page 35). 9. On 09.11.1981, Government Resolution came to be issued by the respondent no.1 for grant of pay-scale of lecturer with all the Assistant Lecturers drawing pay-scale of Rs.700 or more on or after 01.04.1979, having requisite qualification and experience. 10. On 11.07.1983, the petitioner came to be appointed on ad-hoc basis in Textile Chemistry Department as Assistant Lecturer, holding diploma in his respective branch of engineering from a recognized institute in First Class and also possessing 8 years’ of experience in polytechnic. 11. The benefit came to be granted from 01.01.1986. 12. 10. On 11.07.1983, the petitioner came to be appointed on ad-hoc basis in Textile Chemistry Department as Assistant Lecturer, holding diploma in his respective branch of engineering from a recognized institute in First Class and also possessing 8 years’ of experience in polytechnic. 11. The benefit came to be granted from 01.01.1986. 12. On 07.01.1992, the Rules of 1992 came to be framed for Lecturer (Class-II) providing the qualification of First Class Bachelor or First Class Master Degree in relevant field for appointment to the post of Lecturer by direct selection. 13. On 20.04.1992, the petitioner’s appointment, which was originally on ad-hoc basis, was regularized from the original date of appointment i.e. 11.07.1983. 14. By communication dated 13.03.2001, the respondent no.1 communicated to the AICTE, requesting the requirement of qualification of B.E. (First Class) to be relaxed for the remaining 36 Assistant Lecturers as a special case. 15. On 20.06.2001, the Education Department of the State Government published a Government Resolution in accordance with AICTE. The petitioners herein claimed their eligibility for promotion to the post of lecturer under clause 1.4 of the said Government Resolution, which reads as under:- “1.4. Teachers already in service prior to January 1, 1996 and appointed as teachers as per State Government’s Recruitment Rules prior to the establishment of AICTE and who at the time of their recruitment possessed only a second class in their diploma level shall also be exempted from the requirement of First Class bachelor’s degree in appropriate branch of Engineering/Technology.” 16. On 28.06.2001, the Education Department of the State Government published a corrigendum No.SCT-1099-1887-GH and deleted the clause - 1.4 of the Government Resolution dated 20.06.2001. The said corrigendum dated 28.06.2001 reads thus:- “Below copy of ED Corrigendum No.:SCT-1099-1887-GH, dt.28.06.2001 regarding Revision of Pay Scale of teachers in Diploma level technical Institutions. No:Dip/Revision of Pay/2002/F(P)/ Directorate of Technical Education Block No.2, Floor 2nd, Dr. J.M. Mehta Bhavan, Gandhinagar: 30/06/2001 Copy to: 1. All the Head of Diploma/Engg/Pharmacy institutions. Government Grant-in-aid Self Finance Institutions. 2. All Division of Head Office. 3. Self file. 4. Office Order file. For favor of information & necessary action. Encl: As above For, Director of Technical Education Revision of pay scale of teachers in Diploma level technical institutions. Government of Gujarat Education Department: Corrigendum No.SCT-1099 [1887-GH Sachivalaya, Gandhinagar, Date:28-6-2001. Read: (1) All India Council for Technical Education letter No.F-1 85-CD-NEC-98 dated 30-06-2001. 3. Self file. 4. Office Order file. For favor of information & necessary action. Encl: As above For, Director of Technical Education Revision of pay scale of teachers in Diploma level technical institutions. Government of Gujarat Education Department: Corrigendum No.SCT-1099 [1887-GH Sachivalaya, Gandhinagar, Date:28-6-2001. Read: (1) All India Council for Technical Education letter No.F-1 85-CD-NEC-98 dated 30-06-2001. (2) Government Resolution No.SCT-1099-1887-GH - CORRIGENDUM: The State Government has sanctioned revised pay scales to teacher in Diploma level technical Institutions as per All India Council for Technical Education letter dt.30-12-99 by G.R.SCT-1099-1887-GH dated 20-6-2001. Para 1.4 mentioned in Annexure-III of the said G.R. (i.e. Teachers already in service prior to January 1, 1996 and appointed as teachers as per State Government possessed only a second class in their diploma level shall also be exempted from the required of First Class bachelor’s Degree in appropriate branch of Engineering/Technology) is hereby deleted. By Order and in the name of the Governor of Gujarat. Sd/- (A.S. Bhagat) Deputy Secretary. Education Department.” 17. In view of the aforesaid, the case of the petitioners herein is now governed by clause – 1.3 of the Government Resolution dated 20.06.2001, which reads thus:- “1.3. Teachers already in service prior to January 1, 1996 and who at the time of their recruitment possessed only a second class in their degree at Bachelor’s or Master’s level (but met all the qualifications requirements prescribed by AICTE at the time of their recruitment) shall be exempted from the requirement of First Class for the Degree they had at the time of their recruitment.” 18. The petitioners herein and other similarly placed employees preferred Special Civil Application No.666 of 2002 challenging the impugned corrigendum dated 28.06.2001, which came to be quashed and set aside by order dated 31.07.2014. The respondent – State challenged the said order by preferring Letters Patent Appeal No.149 of 2015, which came to be partly allowed by order dated 09.07.2015, setting aside the order passed in Special Civil Application No.666 of 2002 whereby, the State Government was directed to consider as to whether relaxation should be granted to the petitioners and consequential up-gradation of the post should be granted to the petitioners or not. Paragraphs 7 to 9 of the order dated 09.07.2015 passed in Letters Patent Appeal No.149 of 2015 read as under:- “7. Paragraphs 7 to 9 of the order dated 09.07.2015 passed in Letters Patent Appeal No.149 of 2015 read as under:- “7. As such, the ground mentioned in the decision for denial of the representation in SCA No.23551 of 2007 appears to have been not considered by the learned Single Judge on the basis of which the Government denied the benefits for up-gradation of the post. 8. It is hardly required to be stated that whether to grant relaxation or not is essentially the domain of the employer, as an expert body in the field, Court would not substitute its decision unless the decision is arbitrary or violative of any constitutional provision. Up till now the decision was yet to be made in SCA No.666 of 2002 and it appears that so far as the decision in another petition, which was taken by the State Government is not at all examined. Reference may be made to the decision of the Apex Court in the case of State of J & K Vs. Shiv Ram Sharma and Ors., reported in (1993) 3 SCC 653 and more particularly the observations at paragraph 6, which reads as under:- “6. The law is well settled that it is permissible for the Government to prescribe appropriate qualifications in the matter of appointment or promotion to different posts. The case put forth on behalf of the respondents is that when they joined the service the requirement of passing the matriculation was not needed and while they are in service such prescription has been made to their detriment. But it is clear that there is no indefeasible right in the respondents to claim for promotion to a higher grade to which qualification could be prescribed and there is no guarantee that those rules framed by the Government in that behalf would always be favourable to them. In Roshan Lal Tandon v. Union of India, (1968) 1 SCR 185 : ( AIR 1967 SC 1889 ), it was held by this Court that once appointed an employee has no vested right in regard to the terms of service but acquires a status and, therefore, the rights and obligations thereto are no longer determined by consent of parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. The High Court has also noticed that there was an avenue provided for promotion but the prescription of the qualification was not favourable to respondents. The principle of avoiding stagnation in a particular post will not be with reference to a particular individual employee but with reference to the conditions of service as such. As long as rules provide for conditions of service making an avenue for promotion to higher grades the observations made in T.R. Kothandaraman's case (1994 AIR SCW 4367) (supra) stand fulfilled. In that view of the matter, we do not think the High Court was justified in allowing the writ petitions filed by the respondents.” 9. In view of the aforesaid fact situation, we find that the order passed by the learned Single Judge deserves to be quashed and set aside. However, the State Government is required to be directed to consider the matter as to whether relaxation should be granted to the petitioners and consequential up-gradation of the post should be granted to the petitioners or not. The State Government is directed to take appropriate decision as early as possible, preferably within a period of three months from the date of receipt of the order of this Court. It would also be open to the petitioners to submit a detailed representation within one month from today to the Secretary, Education Department. The decision shall be communicated to the petitioners. In the event the decision is against the petitioners, the petitioners may have recourse in accordance with law.” 19. Pursuant to the said order dated 09.07.2015 passed in Letters Patent Appeal No.149 of 2015, the petitioners preferred detailed representation to the respondent – authority on 01.08.2015. The petitioners also filed review application being Misc. Civil Application No.2199 of 2015, which came to be rejected by the Division Bench of this Court order dated 06.08.2015. 20. The competent authority, while rejecting the petitioners' representation by impugned order dated 29.03.2016, held thus:- “(2) In view of the relevant file number SCT/1004/1737/G regarding the action taken by the Department for grant of the benefit of upgradation to Mr. M.K. Pandya in reference to the above judgment of the Hon'ble Court, the following matters have been taken into consideration. Date of appointment of Mr. M.K. Pandya as Assistant Lecturer is 5.9.1983. Since he was reaching the stage of Rs. M.K. Pandya in reference to the above judgment of the Hon'ble Court, the following matters have been taken into consideration. Date of appointment of Mr. M.K. Pandya as Assistant Lecturer is 5.9.1983. Since he was reaching the stage of Rs. 2180 on 5.9.92, it was taken into the consideration to give him the benefit of upgradation w.e.f. 1.9.92. First of all, the Department submitted proposal to the General Administration Department vide File No. SCT/1094/Kha.496/5 to grant the benefit of upgradation in special case to the remaining 34 Assistant Lecturers as they do not have Educational Qualifications as per the Recruitment Rules dated 7.1.92. Name of Mr. Pandya was also therein. As per the proposal vide office note dated 7.3.2000 of General Administration Department, the proposal was made to the Gujarat Public Service Commission. Vide letter dated 7.8.2000, Gujarat Public Service Commission granted the proposal of the Department. After obtaining permission of the Commission, the proposal was submitted to the Department as suggested by the General Administration Department. A proposal submitted from time to time with sufficient clarifications in consultation with Finance Department. In this connection, as per the clarification given by the Finance Department vide office note dated 9.6.2005, the benefit of upgradation cannot be granted to Assistant Lecturers/Instructors who do not fulfill the qualification of Lecturers. As per the Resolution dated 9.11.81, only those who have Educational Qualification and Experience as per existing Recruitment Rules, will be entitled for this benefit. By mentioning this, the proposal of the Department had been rejected. Inspite of the above decision, grant of the benefit of upgradation to Mr. M.K. Pandya on File Number-SCT/1004/1737/G, it has been taken into the consideration wherein the Finance Department was not consulted. Further, vide letter dated 12.8.2009, by consulting the Gujarat Public Service Commission, the Commission has sent a copy of the letter in return for the consent given earlier vide letter dated 7.8.2000. It is important to note that upon considering the reply of the Commission, the consideration has been made with reference to the provisions of paragraph-1, 3 of the resolution dated 20.06.2001. (3) As per your submission, it is stated that all the Assistant Lecturers except Mr. M.K. Pandya have reached on the stage of Rs. 700 or Rs. 2180 before dated 7.1.1992 and they have been granted the benefit as per the date of their eligibility from dated 7.1.1992 onwards. (3) As per your submission, it is stated that all the Assistant Lecturers except Mr. M.K. Pandya have reached on the stage of Rs. 700 or Rs. 2180 before dated 7.1.1992 and they have been granted the benefit as per the date of their eligibility from dated 7.1.1992 onwards. Therefore, it may be possible that the Officers who were eligible for such consideration at that time might have been given the benefit of upgradation by giving relaxation in the qualifications mentioned in accordance with the Recruitment Rules as per the provisions of the Resolution dated 9.1.1981. The file in connection with the decision taken with regard to the grant of benefit of upgradation to any of the Assistant Lecturers mentioned above, is not available with the department. Further, the fact is also admissible that the order regarding grant benefits is also not self-evident. (4) As mentioned in your submission, Assistant Lecturers of English subject have been granted the benefit of upgradation by giving relaxation in the Educational qualification as per the Tutor Demonstration Resolution dated 19.2.1987 of the Department. However, the reference of the Resolution dated 19.2.1987 has not been read while granting them the benefit of upgradation. (5) As stated in your submission, reference to the resolution dated 19.2.1987 based on the letter dated 10.4.2002 of the Commissioner Technical Education has not been read in the resolution granting the benefit of upgradation. Upon considering the letter dated 10.4.2002 of the Commissioner of Technical Education, it is submitted to grant benefits on the basis of the Resolution dated 19.2.1987. It is submitted that the letter dated 10.4.2002 of the Commissioner Technical Education has not taken into consideration in the affidavit filed by the Department in Special Civil Application Number 666/2002. Further, the Resolution dated 19.2.1987 was not considered while granting the benefit of upgradation to the Assistant Lecturers of English in Order dated 1.10.1993. Hence, this point of submission of the petitioner cannot be considered. As all the Assistant Lecturers mentioned on P. 557/ P.V had reached on the stage of Rs.700-Rs.2180 before 7.1.1992, the benefit was given before that date i.e. during the period from 1.4.1979 to 6.1.1982. When the Recruitment Rules dated 07/01/1992 came into effect, these benefits had not been granted to Assistant Lecturers who reached at the stage of Rs.700-Rs.2180. As all the Assistant Lecturers mentioned on P. 557/ P.V had reached on the stage of Rs.700-Rs.2180 before 7.1.1992, the benefit was given before that date i.e. during the period from 1.4.1979 to 6.1.1982. When the Recruitment Rules dated 07/01/1992 came into effect, these benefits had not been granted to Assistant Lecturers who reached at the stage of Rs.700-Rs.2180. (6) Assistant Lecturers in Ceramic Technology also have their date of eligibility for upgradation prior to 7.1.1992 and were granted benefit accordingly. Similarly, Assistant Lecturers in Printing Technology/Home Science had been granted upgradation on their eligibility date prior to 7.1.1992. Accordingly, if any relaxation has been given regarding the benefit of the Assistant Lecturers, the details cannot be produced because relevent speaking order has not been made. (7) Copies of the above notes mentioned in the file of the Department were submitted along with the submission. However, instead of producing the entire part of it, they have produced only paricular part where the consideration note has been produced in their favor and by doing so they have tried to mislead. In fact, further consideration given vide notes dated 8.3.2000 and dated 27.05.2005, which are important and decisive. However, they have tried to get favor by not producing such details. (8) Mr. M.K. Pandya, Assistant Lecturer has been granted the benefit of upgradation vide list dated 26.05.2009 which has been withdrawn with initial effect from List No. SCT1004/1737/5 dated 16.03.2016 of the Department. Therefore, the question of granting the benefit of upgradation to any other Assistant Lecturers on such basis does not arise. Therefore, considering the above details, your proposal for upgradation as a Lecturer cannot be granted. Thus, all the Assistant Lecturers had been granted upgradation as they reach at the stage of 2180 before dated 7.1.1992 which are exemplified in your submission. Therefore, such point is not admissible. As your have stated in your submission that you reached at the stage of 2180 after dated 07/01/1992, your submission is not admissible and the same is hereby rejected.” 21 The aforesaid is the subject matter of the present petition. 22. The said representation dated 01.08.2015 was decided by the respondent no.1 on 29.03.2016, granting due opportunity of hearing to the petitioner, as referred above. 23. It is also apposite to refer to the order passed in the case of Mr. M.K. Pandya by which, the petitioner is seeking parity. 22. The said representation dated 01.08.2015 was decided by the respondent no.1 on 29.03.2016, granting due opportunity of hearing to the petitioner, as referred above. 23. It is also apposite to refer to the order passed in the case of Mr. M.K. Pandya by which, the petitioner is seeking parity. On perusal of the order passed in the case of Mr. M.K. Pandya, it emerges that he was also holding a Bachelor’s degree in second class, which is also undisputed fact and in view thereof, Mr. M.K. Pandya was granted benefit of up-gradation. 24. This Court has also perused and considered the orders produced by the petitioner herein at Annexure – I, seeking parity upon such orders. Upon perusal of such orders, it emerges that in the said orders, the petitioners therein were graduates and in view thereof, they were extended the benefit of the notification dated 07.01.1992 and met with the qualification for the candidates, who were appointed by way of direct selection to the post of lecturers - Class – II. The petitioners herein, admittedly, do not meet with the said qualifying criteria of the Government Resolution dated 07.01.1992, having diploma in engineering in his respective branch. 25. This Court has also perused the various appointment orders which are produced on record from page 333 wherein, it is the case of the petitioners to be considered with the instance as annexed at page 335 wherein, Mr. Khatri was holding a diploma in Textile Chemistry and has been granted the senior scale upon completion of 8 years’ of qualifying service. 26. For the forgoing reasons, no interference is called for to exercise extraordinary jurisdiction under Article 226 of the Constitution of India. 27. Accordingly, the present petitions fail and are hereby dismissed. Rule is discharged.