Yuvrajsinh Jayvirsinh Jhala vs State Of Gujarat

Nikhil S. Kariel, J

Issue Rule returnable forthwith. Learned AGP Mr. Aditya Pathak waives service of rule on behalf of the respondent – State.

By way of this petition, the petitioner has prayed for a declaration for promoting the petitioner to the post of Head Constable with effect from 14.08.2017 instead of 28.06.2021 and further promotion to the post of Assistant Sub Inspector with effect from 30.12.2020 and for all consequential benefits arising therefrom.

The entire case of the petitioner is on basis of the fact that the petitioner who at the relevant point of time had been appointed as an Unarmed Police Constable appeared as Police Constable vide an order dated 01.02.2010, had upon completion of 5 years in the fixed pay had been appointed in the regular pay scale with effect from 04.04.2015 and whereas in the meantime, in the month of June 2007, the petitioner had cleared CCC examination from Dr. Babasaheb Ambedkar Open University. It appears that the respondent no. 2 i.e. the Superintendent of Police District Gir Somnath had issued orders of promotion for persons in the cadre of Police Constable to the cadre of Police Head Constable with the benefit of 7th Pay Commission vide an order dated 14.08.2017 and whereas, the petitioner who was otherwise eligible having found his name not reflected in the list had inquired and it was informed to the petitioner that since the petitioner had passed CCC examination from Dr. Babasaheb Ambedkar Open University which was not considered to be a valid certificate therefore she was not granted the promotion.

Learned Advocate Mr. Sejpal on behalf of the petitioner would submit that when the case of persons similarly situated like the petitioner working in the cadre of Police Constables were considered for promotion to the cadre of Police Head Constable, the case of the petitioner ought to have been considered more particularly since the certificate of passing of CCC examination by the Dr. Babasaheb Ambedkar Open University was a valid certificate. Learned Advocate Mr. Sejpal in this connection would rely upon decision of a learned Co-ordinate Bench of this Court dated 31.01.2017 in Special Civil Application No. 18543 of 2016. Learned Advocate Mr. Sejpal would further submit that the said decision had been challenged by the respondent- State before Division Bench of this Court by preferring Letters Patent Appeal No. 560 of 2019 and allied matters and whereas the learned Division Bench of this Court, had also not interfered with the decision of the learned Single Judge. Learned Advocate would draw the attention of this Court to the observations of the Division Bench more particularly whereby the Division Bench has clearly stated that “Essentially what was important and what is the spirit behind such computer proficiency is that an employee of the state government is well equipped to manage the computers. Reading of the syllabi of both, the government and that of Dr. Babasaheb Ambedkar Open University would certainly lead us to believe that it cannot be held that the proficiency course undertaken and the certificate issued issued pursuant to the training undertaken at Dr. Babasaheb Ambedkar Open University cannot be accepted by the Government, merely on the ground that the Open University awarded a syllabus of 400 marks whereas the prescribed course was of 100 marks.

This ground appears to be not germane for the purpose of which the certificate was issued.”

Learned Advocate would further submit that as such, the respondent had not promoted many other similarly situated Police Constables who had passed the CCC examination from Dr. Babasaheb Ambedkar Open University and whereas such persons had approached this Court by filing Writ Petitions and whereas the said petitions came to be allowed by learned Co-ordinate Bench of this Court and whereas learned Advocate Mr. Sejpal relies upon decision of learned Co-ordinate Bench dated 05.04.2022 in Special Civil Application No. 12121 of 2021 more particularly it appears that the facts of the present case are almost similar. It appears that the learned Co-ordinate Bench relying upon the decisions referred to hereinabove, so far as the CCC examination is concerned, had held that the supersession of the petitioner to the post of Head Constable and Assistant Sub Inspector, was not proper. Learned Co-ordinate Bench had also directed the respondents to grant deemed date of promotion with all consequential benefits to the petitioner taking 14.08.2017 as the date on which the petitioner was entitled to be promoted as Head Constable and 30.12.2020 i.e the date on which the petitioner was entitled to be promoted to the post of Assistant Sub Inspector. Learned Advocate Mr. Sejpal would submit that the said decision has become final between the parties more particularly the decision having been implemented by the respondents pursuant to an application preferred by the applicant under the Contempt of Courts Act.

Considering the same, learned Advocate Mr. Sejpal would request this Court to grant the same relief as granted by learned Co-ordinate Bench to the petitioner therein.

This petition is vehemently opposed by learned Assistant Government Pleader Mr. Aditya Pathak on behalf of the respondent- State.

Learned AGP Mr. Pathak would submit that while it is true that the petitioner had not been considered for promotion /had been superseded more particularly on the ground of the petitioner having passed the CCC examination from Dr. Babasaheb Ambedkar Open University but the fact remains that along with the said criteria, the employee is required to pass the CCC Examination twice i.e [1] as a pre-condition for entering service and [2]as as a pre-condition for confirmation in service. Learned AGP would submit that the since the petitioner does not appear to have passed CCC examination twice therefore, even otherwise the petitioner is not entitled for any benefit as claimed by her. As such, insofar as Special Civil Application No. 12121 of 2021 is concerned, learned AGP could not dispute the fact that the judgement is on absolutely identical facts.

Heard learned Advocates for the respective parties.

Insofar as the first aspect is concerned as regards the CCC certificate obtained by the petitioner from Dr. Babasaheb Ambedkar Open University, in the considered opinion of this Court, the issue about the same being a valid certificate is no more res integra more particularly the said aspect of certificates of CCC from the Dr. Babasaheb Ambedkar Open University being valid having been decided by learned Co-ordinate Bench and confirmed by Division Bench of this Court and therefore, in the considered opinion of this Court the said issue does not require any further elucidation.

Insofar as the submission raised by learned AGP Mr. Pathak about an employee being required to pass CCC examination twice and the petitioner not having passed the same, it would appear that such a requirement, is not borne out from the record at all. It would appear that the petitioner was not considered for promotion at the relevant point of time since the petitioner possessed a certificate which according to the respondent authorities was not a valid certificate. It would appear that beyond such an objection, the respondent authorities do not appear to have taken any objection with regard to the petitioner not having passed the CCC examination twice. Learned AGP Mr. Pathak had also submitted to this Court to a copy of communication dated 09.10.2023 by the in-charge of Superintendent of the office of the Superintendent of Police Gir Somnath who inter alia informs the learned AGP that the petitioner was not considered for promotion since the certificate of the CCC certificate from Dr. Babasaheb Ambedkar Open University was not a valid certificate at the relevant point of time.

11.1 In the considered opinion of this Court, the respondent having considered and superseded the petitioner only on the ground of the certificate of CCC pass not being from a valid institution, it would not be now open for the learned AGP to submit that the case of the petitioner could have been rejected on some other ground also and that ground should be taken into consideration by this Court while not considering the present petition.

11.2 It also requires to be mentioned here that the respondent -Superintendent of Police was considering the case of number of employees at the relevant of time and in case of a similarly situated employee, in whose case the certificate of CCC pass from the Babasaheb Ambedkar Open University was not deemed to be valid, having approached this Court and this Court having passed order in favour of such a candidate, in the considered opinion of this Court, the submissions of learned AGP, could not be countenanced more particularly since there is nothing on record to show that even at the relevant point of time there were other candidates, who were superseded on account of the objection as raised by the learned AGP.

11.3 Furthermore, since a decision has already been taken by a learned Co-ordinate Bench, the same being binding on this Court, in the considered opinion of this Court, this Court is not required to delve into or elucidate on this issue any further. Suffice it to state that a decision of the respondents of not promoting the petitioner to the post of Police Head Constable from 14.08.2017 and not further giving the petitioner further consequential promotion, cannot be countenanced. The certificate from the Dr.Babasaheb Ambedkar Open University being a valid a certificate, the respondents are required to give appropriate promotion to the petitioner. Hence the following directions are passed.:

[1] The respondents are directed to promote the petitioner as Police Head Constable with effect from 14.08.2017 i.e. by giving the petitioner deemed date promotion with effect from the said date.

[2] Furthermore the petitioner is also entitled to promotion to the post of Assistant Sub Inspector from the post of Head Constable with effect from 30.12.2020.

[3] As directed in case of similarly situated employee all consequential benefits shall be paid to the petitioners on the basis of such deemed date promotion which shall be granted to the petitioner within a period of 12 weeks from the date receipt of copy of this order.

With the above observations and directions, the present petition stands disposed of as allowed. Direct service is permitted.