BHARGAV D. KARIA, J.

1. Heard learned advocate Mr.K.B.Pujara for the petitioner and learned Assistant Government Pleader Mr.K.M.Antani for the respondent No.1.

2. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the following reliefs :

“(a) to quash and set aside the impugned order dated 16-3-2016 passed by the respondent no.1, served to the petitioner on 21-3-2016, as per Annexure-E;

(b) PENDING the hearing and final disposal of this petition, be pleased to stay the operation of the impugned order dated 16-3-2016 passed by the respondent no.1, served to the petitioner on 21-3- 2016, as per Annexure -E;

(c) to grant any other appropriate and just relief/s including the costs of this petition;”

3. The brief facts of the case are as under :

3.1. The petitioner was born on 25th January, 1962. He passed B.Com and M.Com with second class. The petitioner was appointed as an Assistant Lecturer in the respondent No.3- Polytechnic – A.V.Parek Technical Institute, Rajkot on 5th September, 1983.

3.2. By Government Resolution dated 9th November, 1981, the State Government decided to up-grade the post of Assistant Lecturers of the Polytechnics in the pay-scale of Lecturers if they are possessing the educational qualifications and experience as provided in the Rules of Recruitment for Lecturers, Gujarat Education Service, Class-II (Collegiate Branch).

3.3. Accordingly, the petitioner was up-graded in the pay-scale of Lecturer, Gujarat Education Service, Class-II vide order of the State Government dated 26th May, 2009 with effect from 5 th September, 1992.

3.4. Thereafter, by order passed by the respondent No.2-Commissioner of Technical Education on 17th April, 2013, the petitioner was granted senior pay-scale of Rs.10000-325-15000 with effect from 5th September, 2000 and Selection Grade of Rs.12000-420-18300 with effect from 5th September, 2005. Under the 6th Pay Commission, the petitioner was placed in the corresponding PayBand of Rs.37400-67000 with Grade Pay of Rs.9,000/-.

3.5. The respondent No.1-State of Gujarat passed the impugned order dated 16th March, 2016 which was served upon the petitioner on 21st March, 2016 whereby, the order of up-gradation dated 26th May, 2009 is ordered to be cancelled and the petitioner is ordered to be reverted back to the earlier post of Assistant Lecturer.

3.6. The petitioner being aggrieved by the impugned order dated 16th March, 2016 has preferred this petition.

4. Learned advocate Mr.K.B.Pujara for the petitioner submitted that the impugned order is passed by violating the principles of natural justice as no opportunity of hearing was provided to the petitioner though the impugned order has serious civil consequences for the petitioner as the petitioner was to be down-graded to the lower post of Assistant Lecturer and his salary would be substantially reduced.

4.1. In support of his submission, learned advocate Mr.Pujara relied upon the decision of the Apex Court in case of State of Orissa versus Dr.(Miss) Binapani Dei and Others AIR 1967 Supreme Court 1269 to submit that even administrative orders which involve civil consequences have to be passed consistently with the rules of natural justice after giving an opportunity of being heard.

4.2. It was submitted that the impugned order also suffers from non-application of mind and gross arbitrariness in asmuch as the impugned order does not state as to why and how the petitioner is not satisfying the qualification of Lecturer, Class-II. Reliance was placed on the Government Resolution dated 9th November, 1981 which provides for up-gradation and placement of Assistant Lecturer of Polytechnics in the pay-scale of Lecturers if they are possessing the education qualification and experience as provided in the Rules of Recruitment for Lecturer, Gujarat Education Service, Class-II (Collegiate Branch).

4.3. It was submitted that the reference made in the impugned order with regard to the Government Resolution dated 07.01.1992 provides for the direct recruitment on the post of Lecturer, Class-II but the petitioner was already in employment of the respondent institute since 5th September, 1983.

4.4. Learned advocate Mr.Pujara submitted that All India Council for Technical Education (for short ‘AICTE’) by letter dated 30.12.1999 revising the pay-scale of the Teachers of Technical Institutions of Degree Level and Diploma Level Technical Institutions with effect from 01.01.1996 have prescribed the qualifications and it is made clear that Teachers who are already in service prior to January 1, 1996 and who at the time of their recruitment possessed only second class in their degree of Bachelor’s or Master’s level (but met all the qualification requirements prescribed by AICTE at the time of the recruitment) shall be exempted from requirement of First Class for the Degree at the time of their recruitment.

4.5. Reliance was also placed on the Government Resolution dated 20th June, 2001 for revising the pay-scale of the Teachers for Diploma Level Technical Education issued pursuant to the letter dated 30th December, 1999 of the AICTE wherein also it was made clear that 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 and Master’s level but who met all the education qualification requirement prescribed by the AICTE at the time of the recruitment shall be exempted from the requirement of the First Class or Degree at the time of their recruitment.

4.6. Relying on the above letter dated 30.12.1999 and the Government Resolution dated 20th June, 2001, it was submitted that the petitioner who is possessing second class in Master’s Degree was fully satisfying the requirements prescribed by the AICTE at the time of his recruitment and therefore, considering the same, the State Government has passed the order dated 26th May, 2009 for up-gradation of the petitioner from the post of Assistant Lecturer to that of Lecturer and his placement in the pay-scale of Lecturer, Class-II with effect from 6th September, 1992. It was submitted that there was no mistake in passing the order of up-gradation dated 26th May, 2009.

4.7. Learned advocate Mr.Pujara also invited the attention of the Court to the additional affidavit of the petitioner whereby, the General Circular No.72 providing the Rules for appointment to the Post of Lecturer in NonTechnical subjects in Gujarat Educations Service, Class-II (Collegiate Branch) is placed on record, wherein, it is provided that, for appointment by direct selection a candidate must possess a Master’s Degree in atleast the second class in the subject concerned or a Bachelor’s degree in at least the second class plus a Master’s Degree in pass class in the subject concerned. It was therefore submitted that the petitioner was fully satisfying the said requirement since the year 1983 in which he was appointed as Assistant Lecturer and was therefore, rightly up-graded as Lecture with effect from 5th September, 1983. Reliance was also place on Government Resolution dated 1st August, 1990 providing for up-gradation of Assistant Lecturer in the pay-scale of Lectures on reaching the stage of Rs.2,180/- in the revised pay-scale. It was therefore submitted that the petitioner was rightly been granted the up-gradation of pay-scale of Lecturer with effect from 05.09.1992 and was rightly paid the 6 th pay-commission as per the order dated 12th August, 2013 in the pay-scale of Lecturer.

4.8. It was submitted that the impugned order by which the petitioner is reverted to the post of Assistant Lecturer would entail disastrous financial implications as the petitioner would be down-graded to the post of Assistant Lecturer and his monthly salary would be reduced almost one half of his present monthly salary in the payscale of Lecturer, Class-II. It was therefore, submitted that the impugned order being violative of Articles 14, 16, 19 and 21 of the Constitution of India is liable to be quashed and set aside.

5. On the other hand, learned Assistant Government Pleader Mr.K.M.Antani submitted that the petitioner was never appointed on the post of Lecturer but admittedly, he was appointed as Assistant Lecturer, Class-III on 5th September, 1983. It was pointed out that the petitioner was possessing the qualification of B.Com and M.Com in second class and as per the Government Resolution dated 07.01.1992, by which new Recruitment Rules came into effect, the qualification prescribed for the post of Lecturer is first class Master’s Degree. It was pointed out that the petitioner had not reached the stage of pay-scale of Rs.2,180/- while he was discharging his duties as Assistant Lecturer on 07.01.1992 and therefore, the petitioner is required to fulfill the qualification of having the first class Master’s Degree in the subject concerned. It was therefore submitted that the petitioner had not satisfied the educational qualification as prescribed in the Recruitment Rules of the Lecturers, Class-III.

5.1. Learned Assistant Government Pleader Mr.Antani submitted that it came to the notice of the respondent authorities that the petitioner had been extended the benefit of up-gradation to the post of Lecturer in inadvertently through oversight and therefore, necessary steps to verify all the cases of up- gradation to the post of Lecturer passed by the State Government was reconsidered as per the order dated 09.07.2015 passed by this Court in Letters Patent Appeal No.149 of 2015 wherein, this Court had directed the respondent authorities to consider the representation and accordingly, the respondent authorities examined each and every case in detail wherein, the up-gradation was given in past.

5.2. The reliance placed by the petitioner on the letter dated 30.12.1999 and Government Resolution dated 28.06.2001 is also misplaced because the Government Resolution dated 28.06.2001 and more particularly, Clauses No.1.2, 1.3 and 1.4 are only applicable to those Teachers who are in the post of Lecturer whereas, the petitioner was granted the up-gradation of the pay-scale while he was holding the post of Assistant Lecturer, Class-III and therefore, such the Government Resolution dated 20th June, 2001 is not applicable to the petitioner and the petitioner is not entitled to the exemption as suggested by AICTE.

5.4. It was submitted that the post of Lecturer, Class-II in Government Polytechnic falls within the purview of AICTE whereas, the petitioner is Assistant Lecturer in Polytechnic which is not governed under AICTE guidelines and post of Assistant Lecturer is governed by the General Service Policy of the State Government like other State Government Employees belonging to Class-III post.

5.5. With regard to the contention raised by the petitioner for discriminatory treatment given by the respondent-Authorities, it was submitted that the Assistant Lecturer, Class-III who does not have pre-requisite qualification and who had not reached the stage of Rs.700/- have been given the benefit of up-gradation under the Scheme.

5.6. Learned Assistant Government Pleader Mr.Antani submitted that there cannot be a negative application of principles of natural justice inasmuch as the decision taken is an administrative decision to correct the inadvertent mistake which the authorities have realised later on and there is no need to provide any opportunity of hearing as administrative authority can pass an order to rectify the mistake.

6. Considering the above submissions made on behalf of the learned advocates for the respective parties, the only question which arises for consideration is whether once the petitioner was granted up-gradation in the payscale of Lecturer of Class-II by order passed in the year 2009 can be cancelled by the impugned order passed in the year 2016 without providing any opportunity of hearing to the petitioner as well as on merits.

7. The petitioner was appointed in the post of Assistant Lecturer in the respondent No.3- Institute on 5th September, 1983 as per the prevailing Rules and Regulations and more particularly, as per the Government Resolution dated 09.11.1981. The Government Resolution dated 09.11.1981 stipulates that the Assistant Lecturer appointed by the State Government and placed in the pay-scale of Lecturer, would automatically be converted into the post of Lecturer. The Government Resolution dated 1st August, 1990 also stipulates that the Assistant Lecturer/Instructors were not granted the benefit of revised pay-scale with effect from 01.01.1986 and accordingly, the corresponding pay-scale of Rs.2,180/- was fixed for Assistant Lecturer equivalent to pay scale of Rs.700/- prior to 01.01.1986 as per the GCS Pay Rules, 1987 in the pay-scale of Rs.2200-4000 equivalent to that of Lectures, Class-II.

8. Thus, the petitioner was granted the payscale of Lecturers by order dated 26th May, 2009 with effect from 5th September, 1992 because the petitioner reached the stage of Rs.2180 in the pay-scale on that date as required by the Government Resolution dated 1st August, 1990 in the pay-scale of Rs.2000-3200 for Assistant Lectures (Degree Level) and in the pay-scale of Rs.1640-2900 for Assistant Lecturer/Instructors (Diploma Level). This fact is also admitted by the State Government in the affidavit-in-reply dated 27.06.2014 filed in Special Civil Application No.666 of 2002 preferred by one Mr.V.R.Soni who claimed parity with the petitioner though he was not possessing even the Bachelor’s Degree.

9. Learned advocate Mr.Pujara invited the attention of the Court to paragraph Nos.9, 10 and 11 of the affidavit-in-reply in the said petition which is produced on record along with the affidavit-in-rejoinder wherein, the State Government has stated that the petitioner was upgraded by the order dated 26th May, 2009 and in accordance with the Government Resolution dated 20th June, 2001 after concurrence of the GPSC. The paragraph Nos.9, 10 and 11 of the affidavit of the State Government are abstracted as under :

“9. It is also submitted that (1) Mr. M.K.Pandya was upgraded by the order Dated 20-5-2009. It is submitted that said Mr. M.K.Pandya has given the application to upgrade him, and on the bases of the application given by Mr. M.K.Pandya, the Director of Technical Education, Education Department has again written the communication dated 21-11-2005 asking the Director of the Technical Education whether the case of Mr. M.K.Pandya is different from another cases.

10. It is further submitted that against the query raised by the Education Department, the Department of the Technical Education has made the proposal to upgrade Mr. M.K.Padya on 16-1-2000 and Mr. M.K.Pandya has also presented that according to Government Resolution dated 20-6-2001, the teachers already in service prior to date 1-1-1996 and who is possessing only second class in bachelor and master levels shall be exempted from requirement of first class for the degree which he had at the time of recruitment.

11. The Education Department has made proposal to GPSC by communication dated 7-1-2008 and GPSC had replied that as the proposal has been made after a delay of 13 years, it cannot be accepted but after further communications to GPSC, more particularly after a detailed answer by the Education Department. The GPSC has stated that by communication dated 12-5- 2009, the consent has already been given and therefore Mr. M.K.Pandya was upgraded. It is submitted that the educational qualification possesses by the Mr. M.K.Pandya is degrees of B.Com., 2 nd Class, M.Com. 2nd class and as per the resolution dated 20-6-2001 he was up-graded.”

10. It is also not in dispute that after granting pay-scale of Lecturer, the petitioner was also given the benefit of Senior Scale, Selection Grade and Pay-Band-4 at ever occasion of his pay fixation and was duly verified by Audit Squad at Gandhinagar and name of the petitioner was also included in the Seniority List of Lecturers after due verification.

11. Similarly, Government Resolution dated 20th June, 2001 provided the revised pay-scale of Teachers in Diploma Level Training Institutions pursuant to the 5th Pay Commission which clearly stipulates as under :

“Teachers already in service prior to 1-1-1996 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 ACITE 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.”

12. In view of the above Government Resolution dated 20th June, 2001, the case of the petitioner is squarely covered as the petitioner joined the services as Assistant Lecturer in 1983 and at the time of his recruitment, he was possessing the second class in Bachelor’s Degree as well as Master’s Degree as required by the old Recruitment Rules as per General Circular No.72. The contention raised on behalf of the respondent authorities that the petitioner was not appointed in the post of Lecturer is also not tenable in view of the Government Resolution dated 09.11.1981 which provides that once the petitioner is granted the pay-scale of Lecturer, his post of Assistant Lecturer would be converted into that of the Lecturer. Hence, the petitioner is exempted from the requirement of having First Class Degree either in Bachelor’s or Master’s in the subject concerned and therefore, the petitioner was rightly up-graded to the pay scale of Lecturers by order dated 26th May, 2009 with effect from 5th September, 1992.

13. With regard to the contention raised on behalf of the respondent authorities that the petitioner is not satisfying the requirement of the Recruitment Rules dated 7th January, 1992 is concerned, the same is also without any basis as the petitioner was appointed in the year 1983 in accordance with the prevailing Recruitment Rules and the new Recruitment Rules which have come into effect as per the Government Resolution dated 07.01.1992 are applicable only to new recruits appointed thereafter. This aspect is also made clear by the Commissioner of Technical Education in Annexure-II of his letter dated 22nd April, 2016 addressed to the Principal Secretary, Education Department which is produced on record along with the affidavit-in-rejoinder. Thus, taking into consideration the above aspects, more particularly the stand of the Commissioner of Technical Education that the Government Resolution dated 07.01.1992 is applicable only to the new recruitments made thereafter and would not be applicable to the Assistant Lecturers appointed prior thereto, the impugned orders dated 16th March, 2016 which is passed taking into consideration the Government Resolution dated 07.01.1992 ignoring the facts of the case of the petitioner and more particularly, in violation of the principles of natural justice cannot be sustained.

14. In view of the foregoing reasons, the petition succeeds and is accordingly, allowed. The impugned order dated 16th March, 2016 is hereby quashed and set aside and the petitioner is entitled to the benefit of the pay-scale of Lecturer which was granted vide order dated 26th May, 2009 with effect from 05.09.1992.

15. The respondent authorities are directed to pay the arrears to the petitioner along with the retirement benefits, if any, considering the pay scale of the Lecturer to which the petitioner is entitled to with effect from 5th September, 1992 within a period of eight weeks from the date of receipt of this order failing which, the respondent authorities shall be liable to pay the interest at the rate of 6% p.a. on the amount of arrears as well as the pensionary benefits, if any, to be paid to the petitioner. Rule is made absolute to the aforesaid extent. No orders as to cost.