The Circular dated 28.03.1985 prescribes both educational qualifications and experience as essential for the post of Superintendent, and temporary appointments cannot enforce regular promotions without the required educational qualifications.

ORDER :

R.M.CHHAYA, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 10.03.2022 passed by the learned Single Judge in Special Civil Application No.6153 of 2018, appellant – original petitioner has preferred this intra Court Appeal under Clause 15 of the Letters Patent.

2. Following facts emerge from the record of the appeal:

2.1. The appellant was appointed as an Instructor having qualification of Diploma in Civil Engineering with ITI and was working with Navyug Vidhyabhavan Trust which was fully grantin-aid Institute. As the record indicates that the appellant was promoted to the post of Supervisor Instructor in the year 1996 and in the same year the said post was re-designated as Foreman. As the incumbent on the post of Superintendent retired from service, the appellant was given charge of Superintendent on temporary basis subject to regular filling up the said post from regular recruitment. It also further appears from the record that the respondent Trust passed the Resolution dated 23.09.2014 giving the temporary charge to the appellant as a Superintendent. As the record further unfolds that vide order dated 7.4.2016 the respondent no.1 – State promoted one Anilkular Prabhubhai Patel to the post of Superintendent as well as one Mohanbhai Gafurbhai Desai to the same post while appellant- petitioner was on temporary charge from 2014. It is also matter of record that the respondent no.4 recommended the appellant be promoted as Superintendent which request was not accepted keeping in mind the provision of Circular dated 28.3.1985 and denial of the same giving rise to filing of writ petition under Article 226 of the Constitution of India challenging the communication dated 16.1.2017 and for other prayers as prayed for in the writ petition. The learned Single Judge after considering the submissions made was pleased to dismiss the same and hence this Appeal.

3. Heard Mr. M A Parekh, learned advocate for the appellant and Mr. Tirthraj Pandya, learned Assistant Government Pleader for the respondent nos. 1 to 3 on advance copy.

4. Mr. Parekh, learned advocate for the appellant has predominantly contended that the petition has been dismissed only on the sole ground that the appellant does not possess the requisite qualification for the post of Superintendent. Mr. Parekh referring to the Government Resolution dated 28.3.1985 and further referring to the Rules for Recruitment in Grant-in-Aid and more particularly, clause 2 appearing at page 50 of the paper book which relates to the Superintendent (Technical), contended that though it is a matter of fact that clause 2(1) prescribes that a person for being considered to the post of Superintendent by way of promotion should possess educational qualification as required for the direct recruitment. The fact remains that the appellant had requisite qualification and on the contrary more experience than what is provided in clause 2(2). Mr. Parekh further referring to the clause 1 of the said Schedule A (Parisisth A) contended that while considering appointments for the post of Superintendent, it was incumbent upon the State to maintain ratio of 1:1 i.e. direct recruit and promotees. Mr. Parekh further contended that as per communication dated 7.4.2016 and so also 1.8.2016 the post where already notified and the appellant ought to have been promoted from the date which is claimed by the appellant in the present petition. Mr. Parekh also contended that the other similarly situated persons have been promoted to the post of Superintendent whereas recommendation made by the trust, in which, the appellant was working since more than 5 years has been declined without any reason. At last, Mr. Parekh also referred to the Circular dated 28.3.1985 and the Rules relating to the direct recruitment and contended that for the post of Foreman, the qualification prescribed is of graduation in Engineering and / or Diploma holder with five years experience. On the aforesaid ground,