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Hareshkumar Naginlal Solanki vs State Of Gujarat

High Court Of Gujarat|05 December, 2018
In the facts and circumstances of the case and having regard to the consent and request of learned advocate appearing for the parties, the petition was taken up for final consideration.
1.1 Rule returnable forthwith. Learned Assistant Government Pleader Mr. K. M. Antani waives service of Rule on behalf of the respondents.
2. The petitioners, who are serving as Teachers in different primary schools of Taluka Garudeshwar, Nanod and Tilakvada, district Narmada, have prayed for a direction against the respondents to grant higher pay scale to them from the date they became entitled to get higher pay scale. The second limb of prayer is to direct the respondents to accept the certificate of the petitioners of the Course of Computer Concept (CCC) examination from the Dr. Babasaheb Page 1 of 6 C/SCA/17222/2018 ORDER Ambedkar Open University.
3. The facts to be noticed in nutshell are that the petitioners have been serving as Teachers in the Narmada District. State Government issued different resolutions making the computer knowledge compulsory for the government employees including the Teachers in the Primary School, which resolution inter alia provide for requirement to pass the CCC examination for the purpose of getting promotion as well as for getting higher pay-scale. By Resolution dated 02nd January, 2009 the State Government recognised the training and examination centres of Dr.Babasaheb Ambedkar Open University and accepted the passing of CCC examination by undertaking training from the said University.
3.1 The petitioners joined training and examination center of CCC examination of Dr. Babasaheb Ambedkar Open University at M. R. Arts and Science Collage, Rajpipla. This center is recognised by the resolution of the state government. The petitioners cleared their CCC examination from this recognised center.
3.2 The stand of the respondents and the objection for grant of higher pay-scale is that the CCC examination which the petitioners passed from Dr.Babasaheb Ambedkar Open University consisted of 400 marks and not 100 marks and therefore, passing of the said CCC examination was not accepted as valid qualification for the purpose of grant of higher pay-scale.
4. The issue involved in this petition is covered by decision of this Court in Patel Chaitaliben Bhikabhai v. State of Gujarat being Special Civil Application No.18543 of 2016 decided on 31st January, 2017. The parties appearing through their learned advocates Page 2 of 6 C/SCA/17222/2018 ORDER are ad idem that the said decision would apply to the facts of the case of the petitioners for granting the prayer.
5. In Patel Chaitaliben Bhikabhai (supra), identical issue had arisen for consideration of this Court. The Court held that the action of the respondent authorities was without any valid basis and without application of mind. Denial to recognise the certificate of CCC examination from Dr.Babasaheb Ambedkar Open University was held to be illegal by holding thus, "8.1 It is an uncontroverted fact that the Government Resolution dated September 20, 2006, issued by the General Administration Department is qua the CCC and CCC+ examinations, wherein as rightly pointed out by the learned Assistant Government Pleader, the training prescribed for CCC examination with which we are concerned, is of 45 hours; whereas the examination of 100 marks i.e. 50 marks each for practical and theory examinations. Both, the Gujarat Council for Vocational Training and ITI Centres administered by the Government of Gujarat, were to conduct the examination. For the purpose of training also, the Gujarat Council for Vocational Training and SPIPA were notified.
8.2 However, subsequently the General Administration Department on realising the magnitude of the task passed the Government Resolution on January 02, 2009 and it also included Dr.Babasaheb Ambedkar Open University, for the purpose of training as well as examination, both. Total 181 centres of Dr.Babasaheb Ambedkar Open University for training had been recognised, but for examination it was not recognised by the respondent-State, which had been permitted under the supervision and guidance of any officer of SPIPA, ITI and Gujarat Technical Examination Board.
8.3 Once again, under the heading of Recognition of Centres of Dr.Babasaheb Ambedkar Open University, a Government Resolution came to be issued, wherein some of the old centres have been derecognised and new centres have been introduced. Accordingly, schedule 'C' has been considered to be the schedule with centres which are recognised for the purpose of examination. Thus, for the purpose of examination, Dr.Babasaheb Ambedkar Open University with those specified training and examination centres continued to have recognition."
5.1 The Court noticed the facts of that case which were akin to the case on hand.
"8.4 On adverting to the facts of the present case in the aforesaid background, Page 3 of 6 C/SCA/17222/2018 ORDER it is not the case of the respondent-authority that any of the petitioners has either taken training at the centres which are not recognised or appeared in the examination which have not been prescribed in schedule 'C' in the last Government Resolution issued on June 22, 2010. It is also necessary at this stage to particularly make a mention of the fact that there are no two types of examinations conducted for CCC by the Dr.Babasaheb Ambedkar Open University, but only one type of examination, which is of 400 marks. Therefore, those who took training and appeared in the examination have no choice, but to appear in the examination conducted by the Dr.Babasaheb Ambedkar Open University. Corollary to this is a fact which deserves to be mentioned emphatically that the aspect of the said University conducting examination of 400 marks has come to the knowledge of the respondent-State since the year 2010. This was conveyed to the Court by the learned Assistant Government Pleader on instructions from the officer present in the Court, on a specific query raised by the Court. Yet the said centres have neither been removed till date by derecognising them for the purpose of training or examination, nor has there been any communication to the employees not to appear from such centres or to take such examination of 400 marks. When that is indisputable fact, there is no reason to deny the petitioners the benefits of higher pay-scale who have passed the CCC examination from the said University, which otherwise has recognised by both the Government Resolutions issued by the State."
5.2 The Court held that the basis of denial was arbitrary.
"8.6 Further, it is also not the case of the respondent-State that the training and the examination conducted by the said University is not as per the syllabus prescribed. There were instances where prior to the year 2009, when this University was recognised for both these purposes, their training course was not recognised by the State authority, however, on realising that the same has fallen in the line of the prescription given by the respondent-State, the recognition has come. In that view of the matter and with there being no choice with the candidates who appeared through this recognised centre, it is absolutely unjust and arbitrary action on the part of the respondent-State to deny them the benefit after not having whispered once since the year 2010 that such course from the concerned University is not recognised."
5.3 The Court observed that whatever may be the future course of action adopted by the respondent-State, the certificates curently held by the employees evidencing passing of CCC examination from Dr.Babasaheb Ambedkar Open University, are required to be accepted as valid.
"8.7 For future course of action, if the respondent-State chooses not to continue the recognition, it shall take necessary action in accordance with law, but till then, the certificate obtained by the petitioners on clearing the said CCC examination, without a semblance of indication of there being any illegality or irregularity in obtaining the same, on the issue of examination containing more Page 4 of 6 C/SCA/17222/2018 ORDER marks than 100 marks, is a non-issue. Nothing can preclude the respondent-State from calculating the marks obtained by the petitioners by calculating their percentage or on reducing the same to 100 marks on prorata basis.
8.8 It is also equally vital to note that a couple of instances with substantiating proofs are brought on record by the petitioners demonstrating that in the case of similarly situated employees, such certificate issued by the said University has been considered by the respondent-State and they have been granted the benefits of higher pay-scale, which would amount to a clear breach of Article 14 of the Constitution of India."
5.4 The Court finally held, "9. For the foregoing reasons, the present group of petitions succeeds and all the petitions are, accordingly, allowed. The respondent-authority is directed to consider the certificate of CCC issued by the Dr.Babasaheb Ambedkar Open University to the petitioners and to give all the petitioners all the benefits for which they are entitled to on individually examining the facts of each case. Uncontrovertedly, nowhere the credentials have been questioned by the respondent-authority.
Before parting with the order, it is further directed that the respondent- State shall on individual examination of case of each such similarly situated employee (not only the petitioners) would ensure grant of the benefits due to them, so that those employees need not to take recourse of law, which would otherwise result into enhancing the burden of the Court. The State shall, thus, provide necessary mechanism for dealing with the matters of all those employees who are identically situated. Their own Government Resolution/guideline also provides for such an approach."
6. In Patel Chaitaliben Bhikabhai (supra) aforesaid decision itself the Court had observed that the ratio would have to be applied to all the similarly situated employees so that the employees belonging to homogeneous class having same grievance should not be required to approach the Court. However, the said observations did not fructify for the present petitioners to whom the similar arbitrary and illegal treatment was meted out by not accepting the certificate of CCC examination from Dr.Babasaheb Ambedkar Open University and higher pay-scale was denied.
7. As a result of above discussion, the petitioners are entitled to succeed. In view of decision of this Court in Patel Chaitaliben Page 5 of 6 C/SCA/17222/2018 ORDER Bhikhabhai (supra), the respondent authorities are directed to accept the certificate of CCC examination issued by Dr.Babasaheb Ambedkar Open University to the petitioners and to give the petitioners all the benefits on the basis of clearance of the said examination and grant the higher pay-scale from the date on which the petitioners became entitled for the same. The arrears etc. which may arise to be payable, shall be paid to the petitioners within eight weeks from the date of receipt of this order.
The petition stands allowed. Direct service is permitted.
(N.V.ANJARIA, J) C.M. JOSHI Page 6 of 6
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