1. Heard learned advocate Mr. Sahil M. Shah for the petitioner and learned Assistant Government Pleader Mr. K.M. Antani for the respondent-State through Video Conference.

2. Rule returnable forthwith. Learned Assistant Government Pleader Mr. Antani waives service of notice of rule on behalf of respondent-State.

3. The petitioner is aggrieved by action of the respondents for not appointing him as Lecturer, Mechanical Engineer, Class-II in Government Polytechnics, pursuant to advertisement dated 30.09.2013 though the petitioner was selected by Gujarat Public Service Commission (For short "GPSC") on the ground that the petitioner is not possessing the qualification equivalent to Bachelor of Engineering (Mechanical).

4. GPSC issued an Advertisement No. 80/2013 dated 30-9-2013, inviting applications for 278 posts of Lecturer, Mechanical Engineering, Class-II for Government Polytechnics.

5. Petitioner was possessing Graduation degree in Bachelor of Engineering (Mechatronics) from Hemchandracharya North Gujarat University, Patan, Gujarat and Post Graduate degree of Masters in Technology-Mechanical Engineering from Ganpat University, Mehsana, Gujarat.

6. The petitioner submitted an online application form for the post of Lecturer, Mechanical Engineer in Government Polytechnic, in pursuance to the said advertisement dated 30.09.2013. However, since in the application form, only one option i.e. B.E. (Mechanical) was provided in the drop down option of the form, the petitioner mentioned B.E. (Mechanical) as his educational qualification, in the online application form.

7. It is the case of the petitioner that sub-clause (5) of Clause 4 of the said advertisement, which related to educational qualification, provided that if the candidates possess any equivalent qualification, then they would have to provide for the details relied upon by them. Accordingly, petitioner provided the Equivalency Certificate dated 28.08.2009 issued by the Principal of Shri U.V. Patel College of Engineering.

8. Subsequent thereto, the petitioner appeared and successfully cleared the preliminary test, held on 07.12.2014.

9. Petitioner submitted all the relevant required documents, including documents relating to educational qualification, equivalency certificate and experience certificates. The said documents of the petitioner were scrutinized and approved by the GPSC and the final list of candidate eligible for interview was published on 21.01.2016 and amended on 21.03.2016. The petitioner was called for an oral interview on 13.04.2016 by way of call-letter dated 30.03.2016. Petitioner's name was shown at Sr. No. 79 in the final select list issued by GPSC. Petitioner was also recommended for appointment to the State Government vide circular dated 29.07.2016. Respondent no. 2 herein vide its letter dated 30.08.2016 called upon the petitioner to remain present for clarification of original documents and other procedural formalities.

10. The petitioner presented the original certificates and such mark-sheets, which were duly verified.

11. It is the case of the petitioner that at a belated stage and after issuing appointment orders to the balance 270 candidates, the Commissionerate of Technical Education, vide its letter dated 02.12.2016 recommended to the State Government to reject the candidature of the petitioner and two other candidates, on the basis that they did not possess an equivalent degree as per the Government Resolution dated 28.10.2013.

12. Thereafter, the State Government vide decision dated 9th January, 2017, rejected the appointment of the petitioner.

13. Learned advocate Mr. Sahil Shah for the petitioner submitted that the action of the State Government of not appointing the petitioner though selected by GPSC is discriminatory, arbitrary and violative of Articles 14 and 16 of the Constitution of India.

14. Learned advocate Mr. Shah submitted that in exactly similar recruitment for the post of Lecturer, Class-II Mechanical Engineer for Polytechnics Engineer was undertaken by GPSC advertisement dated 06.02.2010, pursuant to which one Mr. Sameer Raval was selected and appointed on the said post though he was also possessing B.E. (Mechatronics Engineering) and not B.E. (Mechanical Engineering). It was submitted that the respondents have themselves considered the qualification of B.E. Mechatronics as equivalent to B.E. (Mechanical Engineering), and therefore, the respondents cannot discriminate against the petitioner.

15. Learned advocate Mr. Shah further submitted that the syllabus of B.E. (Mechatronics) of Hemchandracharya North Gujarat University, Patan, Gujarat and the syllabus of course of B.E. (Mechanical Engineer) for the year 2000-2004, clearly show that the course contents of B.E. (Mechatronics) are much wider as over and above the subject of B.E. (Mechanical), subjects of Robotics, Electronics, Automation, program logic control, etc. are also included in the course of B.E. (Mechatronics). It was submitted that B.E. (Mechatronics) is an interdisciplinary branch of Mechanical Engineering and B.E. (Mechatronics) is a more advanced branch then the B.E. (Mechanical Branch). It was submitted that with respect to the recruitment carried out by the Indian Army, Indian Navy, the DRDO (Defense Research and Development Organisation), Railway Board, SAIL (Steel Authority of India Ltd.), BHEL (Bharat Heavy Electricals Ltd.), and Government of NCT of Delhi for which advertisements were issued by UPSC, the qualification of B.E. (Mechatronics) was considered as eligible and equivalent to the qualification of B.E. (Mechanical Engineer).

16. Learned advocate Mr. Shah further submitted that in response to an RTI application, a copy of the file noting of the State Government made in the year 2017, had been received, wherein it has been stated to the effect that the equivalency in the Government Resolution dated 28.10.2013 was defective and that certain branches were left out to be mentioned in the Government Resolution. It was submitted that thereafter, an attempt was made by the State Government in the year 2016, by issuing another Government Resolution on the equivalent degrees in different branches of engineering. Even after the said attempt, it was found that 23 candidates in other branches of engineering selected from the different GPSC 2013 advertisements published along with advertisement No. 80/2013, were still not covered by the Government Resolution issued in 2016. Therefore, an expert committee was formed which found the degrees to be equivalent and appointment orders were granted to the concerned candidates.

17. Learned advocate Mr. Shah submitted that All India Council For Technical Education (AICTE) issued a notification dated 28.04.2017, whereby equivalent degrees in major/core branches of Engineering and Technology relevant for recruitment in teaching positions were laid down. It was submitted that in view of the said notification, Education Department, Government of Gujarat, had decided to have a relook at and revise the equivalent degrees in engineering, which is reflected in the letter dated 15.11.2017 issued by the Deputy Secretary, Education Department, Government of Gujarat and finally, a revised and consolidated list of equivalent degrees was laid down in the Government Resolution dated 06.07.2019. It was submitted that as per the said Government Resolution dated 06.07.2019 Mechatronics was held to be an equivalent degree to B.E. (Mechanical Engineering).

18. Learned advocate for the petitioner submitted that the Government Resolution dated 06.07.2019 ought to be applied to the present case also, since admittedly the Government Resolution dated 28.10.2013 was defective and a deficient resolution for equivalency. It was submitted that this Court vide its order dated 22.06.2016 passed in Special Civil Application no. 12204 of 2015 and allied matters, had given retrospective effect to the Government Resolution issued in 2016, in the recruitment process initiated in pursuance to the very same advertisement and the said order had been upheld by the Division Bench of this Court in Letters Patent Appeal no. 212 of 2017. It was submitted that the State Government accepted the decision of this Court and issued appointments to 124 candidates, who were similarly situated. It was therefore, submitted that the Government Resolution dated 06.07.2019 can also be given a retrospective effect, in the case of the petitioner for similar reasons.

19. On the other hand, learned Assistant Government Pleader Mr. K.M. Antani raised preliminary objection of maintainability of the petition. It was submitted that establishing equivalence interest qualification is an expert function and therefore, this Court may not interfere in exercise of writ jurisdiction under Article 226 of the Constitution of India.

20. Learned Assistant Government Pleader Mr. Antani submitted that the advertisement specified that in case appropriate candidature for the said faculty i.e. Mechanical Engineering were not available, candidatures from corresponding faculties as stated in column no. 5 of the said advertisement shall be appointed, however with respect to Mechanical Engineer, no corresponding faculties are indicated in column no. 5. It was submitted that the advertisement further stipulated stated that the candidates desiring to establish equivalence of qualification must present requisite documents indicating such equivalence from the competent authorities and also necessitate document verification.

21. Learned AGP Mr. Antani further submitted that when the petitioner was called for such verification, it was found that the petitioner was not holding the prescribed qualification and therefore, vide order dated 27th October, 2016 the petitioner was held not entitled for appointment to the post of Lecturer. It was submitted that even otherwise also as per the Government Resolution dated 28th October, 2013 the qualification of the petitioner would not qualify him for the said post.

22. Learned AGP submitted that the petitioner cannot be said to have an indefeasible right to be appointed and his recommendation and inclusion in select list would also not confer any right to be appointed. It was submitted that the petitioner provided incorrect details of qualification to enable participation in the selection process and therefore, such conduct would disentitle him from availing the appointment to the post of lecturer. Learned Assistant Government Pleader Mr. Antani therefore, submitted that the petitioner has rightly not been appointed to the post of Lecturer, Mechanical Engineering.

23. In rejoinder, the learned advocate for the petitioner reiterated the contentions raised in the petition.

24. Having heard the learned advocates for the respective parties, the only controversy arising in this petition is with regard as to whether the petitioner possesses equivalent qualification to that Mechanical Engineer or not

25. The advertisement issued by GPSC prescribed qualification for the appointment for post of Lecturer, Mechanical Engineering, Class-II as under:

"Possesses A Bachelor's degree in Engineering or Technology in the relevant branch with first class or equivalent qualification obtained from University recognised by the Govt.

Provided that if the candidate possesses a Master's degree in Engineering or Technology, first class or equivalent is required either at Bachelor's or at Master's level."

26. The qualification prescribed in the advertisement issued by GPSC was on the basis of Government Resolution dated 28.10.2013 which reads as under:

"After careful consideration, the Government is pleased to decide equivalent graduate and post graduate degree courses in Engineering or Technology as requisite qualification for appointment to the posts of Lecturers, Heads of Departments and Principals in Government polytechnics and Assistant Professors, Associate Professors, Professors and Principals in Government Engineering colleges, as shown in Annexure "A" annexed to this resolution. Subject to the condition that the basic degree of candidate must be in the relevant discipline at graduate level."

27. According to the aforesaid Government Resolution, Annexure-A attached thereto, prescribes requisite equivalent qualification for appointment to the post of Lecturer and as per the qualifications applicable for the post of Lecturer, Mechanical Engineering is provided in column no. 3 as Industrial Engineering, Mechanical Engineering and Production Engineering. As the petitioner was not having Mechanical Engineering degree at Graduate level, he was not appointed though selected by GPSC. It is pertinent to note that during the pendency of this petition, the State Government has issued another Government Resolution dated 6.7.2019 which reads as under:

"Preamble

The commissionerate of Technical Education has made a proposal vide letter referred to (1) above for considering various Graduate and Post Graduate Degree courses in Engineering or Technology as equivalent qualification for appointment to the various teaching posts in Government Polytechnics and Government Engineering Colleges. The matter was under consideration of the Government.

The State Government, from time to time, has declared equivalency of various Graduate and Post Graduate Degree Courses in Engineering or Technology read from serial no. (2) to (10) above. As there is a vast expansion in the field of technical education and increased number of new Graduate and Post Graduate Courses and as AICTE, New Delhi has notified major/relevant branches for major/core branch. It was under active consideration of the Government to publish consolidated resolution for the equivalent Graduate and Post Graduate Degree Courses in Engineering or Technology as requisite qualifications for appointment to various teaching posts in Government Polytechnics and Government Engineering Collages.

Resolution:-

After careful consideration all the previous Government Resolutions in this regards read from serial No. (2) to (10) above and AICTE, New Delhi Notification serial No. (11) above, the Government is pleased to decide equivalent Graduate and Post Graduate Degree courses in Engineering or Technology as requisite qualification for appointment to the post of Lecturers, Heads of Departments and Principals in Government Polytechnics and Assistant Professors, Associate Professors, Professors and Principals in Government Engineering Colleges, as shown in Annexure-A annexed to this resolution. Consequently, the existing Government Resolutions in this regard read from serial No. (2) to (10) above shall be treated as cancelled.

In the Annexure-A. column 3 shows basic degree branch (B.E./B.Tech) in Engineering or Technology and Column 4 shows appropriate/relevant/equivalent degree branch (B.E./B.Tech) in Engineering or Technology for the post mentioned in column 2. While column 5 refers to the appropriate/relevant/equivalent branch of M.E./M.Tech. degree course in Engineering or Technology.

It is also decided that, after publishing this resolution, any addition or deletion of branch from equivalency made by All India Council for Technical Education (AICTE), New Delhi by Gazette Notification shall be automatically appended to this resolution. Moreover, this resolution shall be applicable from the date of issue to all the forthcoming advertisement for recruitment purpose."

28. According to the aforesaid Government Resolution, Annexure-A thereto prescribes that B.E. (Mechatronics) is a relevant qualification for the post of Lecturer, Mechanical Engineering.

29. In view of above clarification made by the Government, reliance was placed by the petitioner on the order of this Court passed in Special Civil Application No. 12204/2015 and allied matters filed by similarly situated candidates claiming similar benefits except that their candidature was pursuant to different advertisements, wherein it is held as under:

"6. In such circumstances referred to above, I hold that the Government Resolution dated 14th June, 2016 issued by the State Government should be made applicable in the cases of the writ applicants and if they are covered by the Government Resolution so far as the equivalency of various graduate and postgraduate degree courses is concerned, then they may be considered for being appointed on the posts in question. Of course, it goes without saying that they should also fulfill the other requisite requirements in accordance with the advertisement."

30. The above decision was confirmed by the Division Bench in Letters Patent Appeal No. 212/2017 and other allied matters wherein the Division Bench held as under:

"9. We have heard learned counsel for both the sides and perused the material on record. When the captioned petitions were filed before the learned single Judge, the main issue related to equivalence of the Degrees. However, before the impugned order could be passed by the learned single Judge, the appellant State came up with the Government Resolution dated 14.06.2016, by which the issue of equivalence of Degrees came to be answered. Therefore, the only question which the learned single Judge was required to consider was whether the petitioners were entitled for the benefits of Government Resolution dated 14.06.2016 or not. Before the learned single Judge, the respondent authority had taken the stand that the case of the petitioners could not be considered since they had applied pursuant to the Advertisements published in the years 2013 and 2014 whereas, the Government Resolution in question came into effect only on 14.06.2016.

10. It appears that in pursuance of the above Government Resolution, the respondent Commission issued a Circular on 17.06.2016 stating that the Government Resolution dated 14.06.2016 would be applicable to Advertisements published in the year 2015-2016, including those cases, where the recruitment process was still pending. Earlier, the petitioners were found to be ineligible for want of equivalent degree. However, after the Government Resolution dated 14.06.2016 was issued, the said dispute was resolved.

11. In the impugned order, the learned single Judge has recorded that the petitioners deserve to be granted benefits of the Government Resolution dated 14.06.2016 since they possessed the requisite qualification as per the Government Resolution dated 14.06.2016 and that, earlier, they were refused to be interviewed by the authority only on the ground of not possessing the required qualification. Considering the peculiar facts and circumstances of the case, we are of the view that the learned single Judge has not committed any error while ordering retrospective application of the Government Resolution dated 14.06.2016 to the case of the petitioners. We are in complete agreement with the reasonings given by the learned single Judge in the impugned order and hence, find no reasons to entertain these appeals."

31. This Court (Coram: Hon'ble Mr. Justice N.V. Anjaria) in case of Roshniben Abherajbhai Chaudhari v. Gujarat Public Service Commission and other by judgment dated 30.11.2016 in Special Civil Application No. 13175/2016 has also following the aforesaid decision of Special Civil Application No. 12204/2015 has held as under:

"6.1 Even as equivalence is recognised which has lifted the debility with which the petitioner was attached for the purpose of her candidature, the interviews are still not announced and are awaited. Even then the petitioner is denied the benefit by not applying Resolution dated 14th June, 2016.

6.2 A situation akin in principle arose before the Apex Court in Punjab University Vs. Subhash Chander [AIR 1984 SC 1415 [LQ/SC/1984/150] ] wherein the student was pursuing studies of M.B.B.S. Course since 1965 and appeared in the final M.B.B.S. Examination in the year 1974. In the meantime, in the year 1970, a Regulation was amended whereby the percentage of grace marks was reduced for M.B.B.S. candidates. It was held that it was the amended Regulation which would apply in case of the petitioner as the same was in force at the time when occasion arose for the petitioner to be treated for the purpose of giving grace marks. The Supreme Court held that new Regulation as amended would apply. In the same way, there is no reason as to why equivalence prescription which is introduced in the interregnum before the petitioner is to be considered for the process of selection for interview, that she should not be denied the candidature.

6.3 This situation is peculiar in itself and cannot be equated with a case were eligibility gets changed or that a candidate acquires eligibility or requisite qualification after the last date of advertisement. It is by the act of the respondents themselves that the degree which was held by the petitioner was accepted as equivalent in the meantime. In the facts and circumstances of the case, it cannot be said that petitioner was not holding the degree. The degree holding by the petitioner was in the same discipline, however its equivalence was not being accepted by the Public Service Commission when the petitioner filled up the application form. The equivalence was recognised after filling up the form and before the candidature of the petitioner is further processed and interviews are hold. When the equivalence has now been accepted and the petitioner is to be the aspiring candidate on the basis of the recognised degree, she cannot be denied candidature. The petitioner could validly claim right to be considered and right to be called at the interview."

32. Reliance placed on behalf of the petitioner on the decision of the Apex Court in case of State of Andhra Pradesh vs. Shaikh Mahibulla Sharief (supra) is also relevant in facts of the case wherein the Apex Court after considering that the degree issued by Open University as equivalent to any other degree in respect of selection conducted in the year 2003 by the State of Andhra Pradesh, it was held that if Government had considered degree issued by Open University as equivalent to any other degree and permitted appointment of similarly situated persons, there is no reason why the respondent can be said to be ineligible. The Apex Court was considering A.P. Direct Recruitment for the post of Teachers (Scheme of Selection) Rules, 2012 wherein post of Language Pandit (Telugu) Grade II was to be filled in and the respondent applicant before the Apex Court was selected for said post though he was possessing B.A. with History, Economics and Political Science and B.Ed. With Telugu and Social Studies as methodology subjects in the year 2005 and candidate also passed BA in Telugu literature as a single subject from Dr. B.R. Ambedkar Open University, Hyderabad and completed MA in Telugu in distance mode. The Apex court in such facts held as under:

"6. The appointment to the post of Language Pandit (Telugu) is governed by the Andhra Pradesh Direct Recruitment for the post of Teachers (Scheme of Selection) Rules, 2012. Rule 4(2) (iii) (a) contemplates that the educational qualifications for appointment to the above post is a bachelor's degree in Telugu as main subject or one of the three equal optional subjects or bachelor's degree in oriental language in Telugu, (BOL) or its equivalent or a post graduate degree in Telugu and B.Ed. with Telugu as methodology or Telugu Pandit Training or its equivalent. The Respondent passed BA with History, Economics and Political Science and holds a bachelor's degree in Telugu as a single subject from Dr. B.R. Ambedkar Open University. He also has B.Ed. with Telugu as methodology. The question that arises for consideration in this case is whether the said bachelor's degree in Telugu literature as a single subject from Dr. B.R. Ambedkar Open University is equivalent to a bachelor's degree with Telugu from other Universities. Reliance is placed by Ms. Prerna Singh, counsel for the Appellant-State on memo No. 18103/Ser.VI-1/2005 dated 03.10.2005 issued by the Government of Andhra Pradesh. The said memo pertains to a qualification issued with regard to transfer of teachers/officers and rationalisation of schools in respect of single subject certificate course of Dr. B.R. Ambedkar Open University. As per para 7 of the said memo, the certificate issued by Dr. B.R. Ambedkar Open University after completion of a single subject course was not a degree and that the single subject certificate holders of Dr. B.R. Ambedkar Open University were not eligible for promotion to the post of School Assistant. As the degree possessed by the Respondent was not equivalent to a degree from the other Universities as prescribed by the Rules, the Counsel for the Appellant-State submitted that the Respondent was not eligible for appointment to the post of Language Pandit (Telugu). Mr. V.V.S. Rao, learned Senior Counsel appearing for the Respondent referred to G.O. Rt. No. 556, Education (SE.SER.VII) Department dated 04.10.2005 by which the Government permitted the Director, School Education, Andhra Pradesh, Hyderabad to appoint candidates who have a bachelor's degree and a B.Ed. degree and have acquired a single subject certificate in the relevant subject from Dr. B.R. Ambedkar Open University. The said orders were made applicable for DSC-2003 candidates only. He also referred to a memo dated 24.05.2008 of the Government of Andhra Pradesh by which the Director of School Education, Hyderabad was permitted to appoint selected candidates of DSC-2003 who have acquired single subject (English) certificate for the post of School Assistant (English) as per their merit in the notified vacancies. The learned Senior Counsel submitted that the memo dated 03.10.2005 is not applicable to fresh appointments as it relates to rationalisation of schools and transfer of teachers.

7. We are of the opinion that the judgment of the High Court does not warrant interference. Admittedly, the Respondent possesses BA with History, Economics and Political Science and B.Ed. with Telugu and Social Studies as methodology subjects. He also possesses BA in Telugu literature as a single subject from Dr. B.R. Ambedkar Open University. The question that falls for our consideration is whether the qualification of BA Telugu literature as a single subject from Dr. B.R. Ambedkar Open University can be considered as equivalent to bachelor's degree with Telugu as main subject. We are in agreement with Mr. Rao that the memo dated 03.10.2005 is a clarification pertaining to transfer of teachers/officers and rationalisation of schools. The directions given by the Government to the Director of School Education which are referred to supra would clearly show that the degree issued by Dr. B.R. Ambedkar Open University was considered to be equivalent to any other degree in respect of a selection conducted in the year 2003. If the Government has considered the degree issued by the Dr. B.R. Ambedkar Open University as equivalent to any other degree for DSC-2003 and permitted appointment of similarly situated persons, there is no reason why the Respondent can be said to be ineligible. There is nothing in the Rules which makes a degree issued by Dr. B.R. Ambedkar Open University which is recognised by the University Grants Commission (UGC) from being considered as equivalent to any other degree."

33. Thus taking into consideration the above discussion, following aspects can be culled out:

i) That the petitioner was holding degree of B.E. (Mechatronics) which is equivalent to B.E. (Mechanical) and as per Government Resolution dated 6.7.2019, the same is required to be made applicable to the case of the petitioner and the petitioner is therefore, required to be appointed as Lecturer, Mechanical Engineering, Class-II.

ii) That similarly situated persons are appointed by the State Government in the previous recruitment and therefore, the petitioner cannot be denied the appointment.

34. In view of the foregoing reasons, the decision reflected in the impugned communication dated *[09.01.2017] issued by the Education department of the State of Gujarat cannot be sustained and is hereby quashed and set aside. As a result, the respondents are directed to appoint the petitioner as Lecturer, Mechanical Engineering, Class-II in any Government Engineering college pursuant to his selection by GPSC considering his qualification of B.E. (Mechatronics) equivalent to that of B.E. (Mechanical) as per Government Resolution dated 6.7.2019.

35. As the other candidates who were selected by GPSC are appointed by the State Government on 27.10.2016, the benefit of notional seniority is also required to be granted to the petitioner with effect from 27.10.2016 and he is deemed to have been appointed with effect from 27.10.2016. The respondents are directed to issue the appointment order to the petitioner with effect from 27.10.2016 with a clarification that the period from 27.10.2016 till the petitioner assumes the charge as Lecturer, Mechanical Engineer, Class-II in any other Government college shall be treated as notional and the petitioner shall not be entitled to any salary for such period but the said period shall be considered for the purpose of seniority of the petitioner only. Such exercise shall be completed within eight weeks from the date of receipt of copy of this judgment.

36. Petition is accordingly partly allowed. Rule is made absolute to the aforesaid extent. No order as to costs.