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2024 DIGILAW 1750 (GUJ)

State Of Gujarat v. Vaidya Amitkumar Ashwinkumar

2024-08-22

A.S.SUPEHIA, MAUNA M.BHATT

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JUDGMENT : (PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA) 1. ADMIT. Learned advocate Mr. Hardik Jani waives service of notice of admission on behalf of the respondent No. 1 and learned advocate Mr. Meet Shah waives service of notice of admission on behalf of respondent No.2. With consent of the respective parties, the present matters are taken up for final hearing today. 2. The present appeals emanate from the common judgment and order dated 26.08.2021 passed by the learned Single Judge in the captioned writ petitions, wherein and whereby the learned Single Judge has allowed the petitions filed by the respondent – candidates seeking appointment to the post of Shikshan Sahayak/Teacher in the Grant-in-aid Higher Secondary Schools. 3. The facts in brief as recorded by the learned Single Judge are that, pursuant to the recruitment undertaken by the State for the appointment to the post of Teacher in the Grant-in-aid Higher Secondary Schools, the original petitioners after clearing the selection process, were not appointed for the reason that their degrees in Graduate and Post Graduate do not fulfill the criteria of notification dated 11.02.2011, wherein the Teachers and Head Masters of Registered Private Secondary and Higher Secondary Schools (Procedure for Selection) Rules, 2011 (for short ‘the Rules’) are promulgated. It is the case of the State that as per the Appendix-I(3), the respondent – candidates are not entitled to additional 10 marks for their degrees of Post Graduate since they have cleared the post-graduation in the subject of ‘Industrial Chemistry’. It is contended that the graduation degree of the respondent – candidates is in ‘Chemistry’, whereas the post-graduation degree is in ‘Industrial Chemistry’. Since, they were not offered appointment, they filed the captioned writ petitions and the learned Single Judge allowed the same. 4. At the outset, learned Assistant Government Pleader Mr. Sahil Trivedi for the appellant submitted that the learned Single Judge has erred in granting the relief to the respondent - candidates by undertaking necessary exercise of comparing their degrees, which is impermissible, as per the decision of the Supreme Court. He has submitted that the issue with regard to equivalence of degree ought not have to be examined. In support of his submissions, learned Assistant Government Pleader has placed reliance on the judgment of the Supreme Court in the case of Mohd. He has submitted that the issue with regard to equivalence of degree ought not have to be examined. In support of his submissions, learned Assistant Government Pleader has placed reliance on the judgment of the Supreme Court in the case of Mohd. Sohrab Khan V./s Aligarh Muslim University and Others, (2009) 4 SCC 555 and judgment dated 06.08.2024 of the Supreme Court passed in Civil Appeal No. 4468 of 2013 in the case of Shifana P. S. V/s. State of Kerala and Ors. 5. Learned Assistant Government Pleader has submitted that the petitioners-respondents had also placed reliance on the Government Resolution dated 21.12.2017, which does not have retrospective effect since the subject of ‘Industrial Chemistry’ at the post-graduation level was only introduced vide said resolution, whereas the recruitment process is prior to that and is of the year 2016. Thus, learned Assistant Government Pleader has submitted that the learned Single Judge fell in error in directing the appellant – State Authorities to appoint them to the post of Shikshan Sahayak/Teacher in the Grant-in-aid Higher Secondary Schools. 6. In response to the aforesaid submissions, learned senior advocate Mr. G. M. Joshi with learned advocate Mr.Hardik Jani appearing for the respondent No. 1 has submitted that the judgment and order passed by the learned Single Judge does not require any interference as the same is appropriately passed. At the outset, learned senior advocate Mr. Joshi has pointed out the Resolution dated 21.12.2017, which is clarificatory in nature and has submitted that the intention of the State Government in introducing such resolution was that the candidates like the respondents, who possess postgraduation degree in Industrial Chemistry, can be appointed to the post and their cases cannot be excluded on the basis of the post-graduation degrees in the respective subjects, as mentioned in the Resolution dated 21.12.2017. 7. Learned Senior Advocate Mr. Joshi has further submitted that even considering the Rules, which are introduced vide notification dated 11.02.2011, the case of the respondent – candidates cannot be denied for appointment on the basis of the Appendix-I(3) as the qualifications mentioned therein is Post Graduate degree in concerned subject. It is submitted that the maximum marks allotted are 10 marks to those candidates, who possess post graduate degree in concerned subject. It is submitted that the maximum marks allotted are 10 marks to those candidates, who possess post graduate degree in concerned subject. It is submitted that the respondent – candidates possess the graduate degree in Chemistry, whereas the post-graduation degree is to be obtained by undergoing a specialization course in respective specialty. It is submitted that in the present case, the candidates have undergone their specialty in Industrial Chemistry and hence, their case is to be considered accordingly by allotting 10 marks. 8. Learned senior advocate Mr. Joshi has further submitted that the effect of the Resolution dated 21.12.2017 is retroactive in nature since it is a clarification given by the Education Department of the State Government to include the candidates like the present respondents. In support of his submissions, he has placed reliance on the judgment of the Supreme Court in the case of University of Kerala and Ors. V/s. Merlin J. N. and Anr, ( 2022) 9 SCC 389. 9. After making aforesaid submissions however, learned senior advocate Mr. Joshi has candidly accepted that the case in hand would not be of equivalence of degree or comparison of degree but the allocation of 10 marks to the respondent – candidates on the basis of their degrees, which they possess in post-graduation with Industrial Chemistry. Hence, it is urged that the present appeals may not be entertained. 10. We have heard the learned advocates appearing for the respective parties. The entire case of the respective parties hinges on the Teachers and Head Masters of Registered Private Secondary and Higher Secondary Schools (Procedure for Selection) Rules, 2011 which have been introduced vide notification dated 11.02.2011. Rule 7 of the said Rules is incorporated as under:- “7. Eligibility for appointment:- To be eligible for appointment as Teacher or Head Master, a candidate shall possess- (a) requisite educational qualifications and age in accordance with the provisions of the Gujarat Secondary Education Regulations, 1974; and (b) basic knowledge of computer application as prescribed in Gujarat Civil Services Classification and Recruitment (General) Rules 1967: Provided that the age limit shall be relaxed in favour of a candidate belonging to the Schedule Castes, Scheduled Tribes, Socially and Educationally Backward Class and women in accordance with the provision of the Gujarat Civil Services Classification and Recruitment (General) Rules 1967” 11. The Appendix-I under Rule 11(3), on which reliance has been placed by both the respective parties, is as under:- “(3) For the post of Secondary Teacher:- No. Qualification Maximum Marks 1 Graduate degree in concerned subject 10 2 Post Graduate degree in concerned subject. (if possesses) 10” 12. Rule 11(3), of the Rules under which the Appendix is prescribed pertains to the allocation of the maximum marks for the qualification for the purpose of weightage of 30%. It is the case of the appellant – State that the respondent – candidates cannot be offered maximum 10 marks as per Item No.2 of the Appendix since they hold post-graduation degree in ‘Industrial Chemistry’ whereas the graduation degree is in ‘Chemistry’. It is also contended that the post-graduation degree should also be in “concerned subject” , i.e. Chemistry in order to claim 10 marks. 13. On a specific query raised by us to the learned AGP as to whether it is possible for a candidate to obtain a post graduate degree in the same subject in which a candidate has done his graduation, to satisfy the requirement of ‘concerned subject’; the learned AGP on instructions has submitted that the postgraduation degree would always be in a specialized subject and it cannot be in the same subject. Hence, the respondent – candidates, who possess graduate degree in ‘Chemistry’, cannot obtain post-graduation degree in ‘Chemistry’, but they have to undertake a specialized subject in order to obtain the postgraduation degree. In the present case, the respondent – candidates have their graduation degree in ‘Chemistry’ and their specialized subject for post-graduation is in ‘Industrial Chemistry’. The expression “concerned subject” in the Appendix cannot be stretched to an extent that the graduate degree and post graduate degree should be in identical and similar subject, which is an impossible task as the current education system does not allow the graduation and postgraduation degree in the similar/identical subject. 14. At this stage, we may refer to the marksheet of the respondent – candidates of their post-graduation degree. The document at Page No. 14 is the degree, which is of Master of Science. In the said degree it is clarified that the candidate possesses Master of Science in Industrial Chemistry which is unquestionably one of the specialized branches of Chemistry. At this stage, we may refer to the marksheet of the respondent – candidates of their post-graduation degree. The document at Page No. 14 is the degree, which is of Master of Science. In the said degree it is clarified that the candidate possesses Master of Science in Industrial Chemistry which is unquestionably one of the specialized branches of Chemistry. The appellant – State has in fact, admitted that there cannot be post-graduation degree in Chemistry subject only since the candidate has to opt for a specialized subject and in the present case, the candidates have opted for ‘Industrial Chemistry’. If the submissions advanced by the State is accepted then it would lead to an absurd and anomalous situation since the intention of the Rules more particularly the appendix on which reliance is placed by the appellant – State, cannot defeat the very purpose of recruitment. Thus, the appellant – State cannot deny 10 marks as prescribed in the Appendix on the basis of post-graduation degree in Industrial Chemistry. 15. It appears that after the recruitment process was over, there were various writ petitions filed before this Court on the issue of possession of the particular graduation/post-graduation degrees by the candidates. Pursuant to such litigation, the State Government issued the Resolution dated 21.12.2017 introducing new subjects under the provisions of Gujarat Secondary Education Regulation, 1974 (Regulation 20(b)(3)). The said Resolution introducing various subjects and one of them is Industrial Chemistry, which the respondents are possessing. As mentioned hereinabove, Rule 7(a) of the Rules stipulates that to be eligible for the appointment of Teacher or Head Master, a candidate shall possess the requisite educational qualification and age in accordance with the provisions of Gujarat Secondary Education Regulation, 1974. The said Resolution is introduced in relation to the provisions of Regulation 20(b)(3) of the Regulations of 1974. All the subjects of Industrial Chemistry are included within the purview of the said Regulation. The Regulation 20(b)(2) provides the qualification which are meant to be possessed by the candidate seeking appointment to the post of Teachers. It is the case of the appellant – State that the aforesaid Resolution will apply retrospectively however, we are unable to countenance such submissions since the Resolution is clarificatory in nature and has been introduced in view of various writ petitions filed before this Court. 16. It is the case of the appellant – State that the aforesaid Resolution will apply retrospectively however, we are unable to countenance such submissions since the Resolution is clarificatory in nature and has been introduced in view of various writ petitions filed before this Court. 16. At this stage, it would be apposite to refer to the observations made by the Supreme Court in the case of Merlin J. N. (supra), which reads as under:- “23. When an enactment or an amendment is declaratory, curative or clarificatory, impelled by a felt need to make clear what was always intended, such amendment is usually meant to operate from an antecedent date, or to cover antecedent events. This position was clarified in Commissioner of Income Tax, Bhopal vs. Shelly Products & Ors where this court, while interpreting an amendment, held that: “It seeks to clarify the law so as to remove doubts leading to the courts giving conflicting decisions, and in several cases directing the revenue to refund the entire amount of income-tax paid by the assessee where the revenue was not in a position to frame a fresh assessment. Being clarificatory in nature it must be held to be retrospective, in the facts and circumstances of the case. It is well settled that the legislature may pass a declaratory Act to set aside what the legislature deems to have been a judicial error in the interpretation of statute. It only seeks to clear a meaning of a provision of the principal Act and make explicit that which was already implicit.” 24. Likewise, in Zile Singh v State of Haryana24, this court, quoted from G.P. Singh’s Principles of Statutory Interpretation (9th Edn.), and applied the relevant rule of construction: “If a new Act is "to explain' an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended...An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect.” 17. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended...An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect.” 17. Thus, the respondents - candidates cannot be left out from the purview of the Resolution dated 21.12.2017, since the same is clarificatory in nature and has retroactive effect. 18. We have perused the judgment and order passed by the learned Single Judge. The learned Single Judge has also examined the case of the appellant on the principle of equivalence of degree. In our considered opinion and as admitted by learned senior advocate Mr. Joshi for the respondent No. 1, the present case would not fall under the principle of equivalence of degree and it only confines to allotment of 10 marks as per Item-2 of Column-3 to the Appendix. The learned Single Judge has held in paragraph 15 that the “the subject of “Industrial Chemistry” is treated to be at par with the post-graduation qualification of “Chemistry” and merit value/marks should be allotted to the petitioner”. In our considered opinion, such observation was uncalled for in wake of the nature of the dispute. The issue raised in the writ petitions was not of ‘treating’ the subject of Industrial Chemistry equivalent or at par with graduate and post-graduate levels, but the issue was of non-allocation of 10 marks on the ground of possession of post-graduate degree in specialized subject of Industrial Chemistry, after obtaining graduation degree in Chemistry. The respondents had done their graduation in Chemistry, but their post-graduation/Masters’ is in specialized subject of Industrial Chemistry hence, they cannot be treated at par, since the subject of Industrial Chemistry stems out of general stream/course of Chemistry. A degree obtained in a particular course at graduation level cannot be treated at par with post- graduation/Master’s level since, at the post-graduation level, the studies will be of advanced level by doing specified research in a particular specialty/subject/course. Thus, if the observation of the learned Single Judge is sustained, the same would be construed in a manner that a graduation degree obtained in a particular general subject/course such as Chemistry, Biology, Physics etc. will be treated at par with the post-graduate/Master’s degree in a specialized subject of these Courses/branches. 19. Thus, if the observation of the learned Single Judge is sustained, the same would be construed in a manner that a graduation degree obtained in a particular general subject/course such as Chemistry, Biology, Physics etc. will be treated at par with the post-graduate/Master’s degree in a specialized subject of these Courses/branches. 19. It is further clarified that the subject of Chemistry as recorded by the learned single judge in Paragraph No. 15 cannot be treated at par with the post-graduation/Master’s qualification of Industrial Chemistry. Item-1 and 2 of Column(3) to the Appendix under Rule 11(3) of the Rules are to be read harmoniously with each other. The expression ‘concerned subject’ in Item-1 is to be read in context of the general subject/course in Graduate degree, whereas Item-2, the ‘concerned subject’ in the Post Graduate Degree has to be read in relation to the course/subject of Item-1, i.e. Item-1 will be General stream/course and Item-2 will be specialized subject of such General stream/course. Except the aforesaid clarification, we do not find any infirmity or illegality in the judgment and order passed by the learned Single Judge. 20. Hence, the present appeal fails and the same is dismissed. In view of disposal of the main matter, connected Civil Applications would not survive. The same also stands disposed of.