RAVINDRA BHUPATRAI GADHIYA vs STATE OF GUJARAT
- Court
- Gujarat High Court
C/SCA/12141/2019 (GJHC240444542019) JUDGMENT DATED: 31/08/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12141 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 710 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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Approved for Reporting Yes No
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RAVINDRA BHUPATRAI GADHIYA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
HUNAIZA H QURESHI(8903) for the Petitioner(s) No. 1
MR. EKRAMA H QURESHI(7000) for the Petitioner(s) No. 1
MS NIMISHA J. PAREKH, AGP for the Respondent(s) No. 1,2
RULE SERVED for the Respondent(s) No. 3
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CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 31/08/2026
ORAL JUDGMENT
1. Heard Mr. Ekrama H. Qureshi, the learned advocate appearing for
the petitioners and Ms. Nimisha J. Parekh, learned AGP appearing for the
respondent authorities.
2. Since the issue involved in both the petitions is analogous, the
same is decided by present common judgment wherein Special Civil
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Application No.12141 of 2019 is taken up as a lead matter, with the
consent of the learned advocates appearing for the respective parties.
3. That the petitioner of Special Civil Application No.12141 of 2019
– Ravindra Bhupatrai Gadhiva was selected under the GPSC and
appointed as Lecturer (Class II) in Instrumentation and Control
Engineering Branch at Government Polytechnic, Gandhinagar, by order
dated 07.10.15 of the respondent no 2.
That the petitioner of Special Civil Application No.710 of 2018 –
Patel Ashishkumar Parsottamdas was selected under the GPSC and
appointed as Lecturer (Class II) now redesignated as Asst. professor) in
Power Electronics Branch at Government Engineering College,
Chandkheda, by order dated 28.02.2011 of the respondent no 2.
4. The petitioners were required to acquire higher degree so as to
comply with All India Council for Technical Education (hereinafter
referred to as ‘ AICTE ’) Guidelines from time to time and to avail the
benefits of Career Advancement Scheme, they need Promotional
Qualifications.
5. As per the guidelines of the AICTE, the Faculty members can be
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permitted to pursue further studies for a period of five years under
Qualify Improvement Program (hereinafter referred to as ‘ QIP ’) policy
on deputation drawing full salary without treating it as break in service.
6. Accordingly, both the petitioners applied for study leave and same
was sanctioned by the respondent. The petitioner of Special Civil
Application No.12141 of 2019 was paid full salary during the period of
their study leave and petitioner of Special Civil Application No710 of
2018, half of the salary paid to the respective petitioners. Thereafter,
according to the respondent provided under the Gujarat Civil Services
(Leave) Rules, 2002, (hereinafter referred to as ‘ the Rules, 2002 ’) as also
as per Government Resolution dated 03.02.2016, the petitioners are
entitled to receive only half salary and thereby, sought recovery from the
petitioner of Special Civil Application No.12141 of 2019, who had
received full salary and did not pay fully salary to other petitioner of
Special Civil Application No.710 of 2018.
7. The aforesaid has given rise to the filing of the present petitions
praying for the following reliefs :-
The petitioner of Special Civil Application No.12141 of 2019 has
prayed for the following reliefs :-
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“(A) Be pleased to issue a writ of mandamus, writ in the nature of
mandamus or any other appropriate writ, order or direction quashing
and setting aside the illegal, unconstitutional and belated order dated
02.07.19 (Annexure A) passed by the respondent no 3 ordering to
recover the half of the salary paid to the petitioner during his study
leave period.
(B) Pending hearing and final disposal of the present petition the
impugned order dated 02.07.19 (Annexure A) passed by the Respondent
no 3 may kindly be stayed and the respondents be directed not to initiate
any recovery of salary pursuant to the same.
(C) Any other and further relief in the interest of justice may kindly
be granted.”
The petitioner of Special Civil Application No.710 of 2018 has
prayed for the following reliefs :-
“(A) Be pleased to issue a writ of mandamus, writ in the nature of
mandamus or any other appropriate writ, order or direction directing
the respondents to pay the full salary to the petitioner during his period
of deputation/study leave and further be pleased to direct the
respondents to pay the arrears which became due from the first month of
deputation/study leave, with interest.
(B) Pending hearing and final disposal of the present petition the
respondents may be directed to produce on record the decision if any
taken by the respondents on the representations preferred by the present
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petitioner.
(C) Any other and further relief in the interest of justice may kindly
be granted.”
8. The learned advocates appearing for the respective parties at the
outset submit that the Government Resolution dated 3.2.2016, which was
subject matter of challenge by preferring Special Civil Application
No.12926 of 2021 and allied matters, by order dated 23.9.2022 quashed
and set aside, the said Government Resolution, as referred to
hereinabove, the same being contrary to the provisions of the AICTE Act,
1987.
8.1 Mr. Ekrama H. Qureshi, the learned advocate appearing for the
petitioners submitted that in view of the aforesaid settled position of law,
the identically situated petitioners in Special Civil Application No.8475
of 2018 and allied matters was decided by C.A.V. judgment dated
12.3.2026 that, the respondent authorities are not entitled to recover any
amount from the petitioners. It is further held that the petitioners are
entitled to receive full salary during the period of their study leave. It is
further directed that the concerned petitioners be paid full salary for the
period of study leave. The arrears of differential amount of salary of
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respective petitioners for the period of their study leave is directed to be
calculated and paid to the respective petitioners on or before 31.5.2026,
failing which the said arrears amount shall be paid at 6% per annum
interest from 1.6.2026 till realization.
9. The learned AGP is not in a position to dispute the aforesaid settled
position of law.
10. In view of the undisputed facts, as referred to hereinabove, the
petitioners are identically placed to the petitioners of Special Civil
Application No.8475 of 2018, more particularly, when the Government
Resolution dated 3.2.2016 is quashed and set aside by judgment rendered
in the case of Panchal Dipal Hareshbhai and 195 others.
11. It is apposite to refer to the order dated 3.2.2016 passed in the
Special Civil Application 8475 of 2017 in paragraphs No.12 to 13.1.2 and
13.1.3 which read thus :-
“12. It can be seen from the impugned order that aforesaid
Government Resolution dated 03.02.2016 was taken note of while
effecting recovery. The said Resolution has already been quashed and set
aside by the Coordinate Bench of this Court vide judgment dated
23.09.2022 passed in SCA No.12926 of 2021 & allied matters, as also
confirmed by the Division Bench vide its order dated 10.09.2024 passed
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in LPA No.1380 of 2024 & allied matters.
12.1 In the said decision in para-24, the Coordinate Bench has taken
note of these petitions, by referring the fact that the respondent
authorities have started recovery from present petitioners concerned. It
has been held that aforesaid Resolution dated 03.02.2016 runs contrary
to the provisions of AICTE Act, 1987 and guidelines framed thereunder.
It is settled law that provisions of AICTE Act, 1987 and guidelines
framed thereunder would have to be followed over any inconsistent
Resolution passed by the State. It has been further held in said decision
that provisions of the Rules, 2002 would not be applicable to the
petitioners concerned who are eligible for pursuing further studies as per
QIP policy of AICTE as they would be granted study leave with salary on
deputation for duration of course. It has been so held that the Rules,
2002 would be applicable in normal circumstances and it cannot
override provisions of Central Act, i.e., AICTE Act, 1987, if they are not
consistent with the same. Thus, in view of the aforesaid position, the
basis of recovery sought to be effected by the respondent would fall;
rather, it would not stand anymore so far as present petitioners are
concerned.
13. The respondent is placing heavy reliance upon Government
Resolution dated 21.12.2023, undisputedly, which was issued after
passing of impugned order of recovery and /or non-granting of full
salary to some of the petitioners as the impugned order of recovery came
to be passed in the year 2018. Such stance of the respondent is not
legally sustainable, inasmuch as the aforesaid Resolution cannot be
applied retrospectively in absence of anything in this regard expressly
observed in the said resolution. Furthermore, the petitioners cannot be
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put to disadvantageous situation.
13.1 The respondent is now trying to distinguish the cases of the
petitioners than other Professors who got admission in QPI center as
selected under QIP quota as per AICTE guidelines. According to the
respondent, as per aforesaid Resolution dated 21.12.2023, the Professors
who applied for higher studies and out of all, those Professors who have
been selected under QIP category, only those Professors are entitled to
receive full salary. Whereas, the rest of Professors who applied for
higher study would be governed by the Rules, 2002.
13.1.1 This distinction is not at all applicable so far as case of the
present petitioners is concerned, inasmuch as their case would not be
governed by the said Resolution dated 21.12.2023; rather it would be
governed by the Resolution dated 03.02.2016 under which petitioners’
study leave sanctioned by the respondent.
13.1.2 The said Resolution dated 03.02.2016 would not remotely suggest
any such distinction which is sought to be carved out by the respondent.
It nowhere suggested in the said Resolution that full salary will not be
paid to the Professors who are going for higher studies other than QIP
centers approved by the AICTE under QIP programme. The clause 7 of
said Resolution is relevant and its fair translation reads as under: -
“7. Study leave will be granted only for admission into
IIT/NIT/QIP Centers/GTU/NBA Accredited PG Programms /
Centers of Excellence / Recognized University and other
Institutions for the purpose of pursuing higher studies of quality
M.E./M.Tech/Ph.D.”
13.1.3 As can be seen from the said Clause 7, the study leave can be
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granted only in cases where Professor concerned gets admission in the
Institution referred in the clause, which includes QIP centers. It is not the
case of respondent that any of the petitioners got admission in other
institution than mentioned in aforesaid Clause 7. Thus, stance of the
respondent by placing reliance upon aforesaid Resolution dated
21.12.2023 is not only arbitrary but contrary to its own resolution dated
03.02.2016, albeit quashed by this Court.”
12. In light of the aforesaid settled position of law and considering the
case of petitioners in line of the petitioners of Special Civil Application
8475 of 2017, the impugned order of recovery dated 2.7.2019 is quashed
and set aside in case of petitioner of the Special Civil Application
No.12141 of 2019. In case of petitioner of the Special Civil Application
No.710 of 2018 the respondents herein are directed to pay full salary to
the petitioner during the period of deputation / study leave within a period
of eight weeks from the receipt of this order. In case of both the
petitioners in absence to comply with the aforesaid directions the arrears
shall be paid with interest at the rate of 6% per annum till realization.
13. With the aforesaid, both the writ petitions succeed and the same are
allowed. Rule is made absolute to the aforesaid extent. Direct service is
permitted.
(VAIBHAVI D. NANAVATI,J)
K.K. SAIYED
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