KRUNAL THAKORBHAI TANDELversusSTATE OF GUJARAT

  C/LPA/221/2026                                 CAV JUDGMENT DATED: 08/05/2026




                                              Reserved On   : 13/03/2026
                                              Pronounced On : 08/05/2026

            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO. 221 of 2026

               In R/SPECIAL CIVIL APPLICATION/15268/2018

                                 With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2026
              In R/LETTERS PATENT APPEAL NO. 221 of 2026
==================================================
                       KRUNAL THAKORBHAI TANDEL
                                 Versus
                        STATE OF GUJARAT & ORS.
==================================================
Appearance:
MR VIRAL J DAVE(5751) for the Appellant(s) No. 1
MR. VENUGOPAL PATEL, ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR ARSHAD SHAIKH(11761) for the Respondent(s) No. 3
MR JAY SNEHAL SHAH(13391) for the Respondent(s) No. 3
MR PREMAL R JOSHI(1327) for the Respondent(s) No. 2
==================================================

  CORAM:HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA
        and
        HONOURABLE MR.JUSTICE J. L. ODEDRA


                         CAV JUDGMENT
         (PER : HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA)


[1]    The appellant herein had challenged the selection of the

third respondent as an Assistant Professor in Industrial

Engineering by filing this writ petition which has been dismissed

by the Learned Single Judge and thereby has upheld the

selection of the third respondent. Consequently, this appeal has

been filed.

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[2]     The following facts emerge from the pleadings and the

arguments advanced by the learned Counsel.

[2.1]          In the month of November, 2015, the Gujarat Public

Service Commission (hereinafter referred to as “GPSC”) issued a

notification calling for applications for filling up the post of

Assistant Professors in various disciplines. For the purpose of this

writ petition, we are concerned only with the notification insofar

as it relates to the post of Assistant Professor, Industrial

Engineering.

[2.2]          In the notification, there was a specific column, the

heading whereof, when translated, reads as follows:

            “Allied discipline according to the Education Department’s
            Resolution No. SCT-1211/393-GH, dated 02/06/2011, and
            Resolution No. SCT-10-2013-616356-GH, dated 07/02/2014”
[2.3]          In this column, as against the post of Industrial

Engineering, no allied discipline had been mentioned. This would,

therefore, indicate that, as on the date of the notification, there

was no equivalent educational qualification prescribed for the

post of Assistant Professor (Industrial Engineering).

[2.4]          The rules relating to the recruitment of the above

posts are governed by Assistant Professor, Class-II in Engineering


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and Technology (in different disciplines) Recruitment Rules,

2011.     The      eligibility   conditions       under    these      Rules      for

appointment by direct selection to the post of Assistant Professor

in Government Engineering colleges are as under:

            (i) A bachelors degree and a postgraduate degree in
            relevant branch of Engineering and Technology with first
            class or equivalent either in Bachelor of Engineering or
            Technology and Master of Engineering or Technology
            obtained from any of the Universities incorporated by or
            under the Central or State Act in India or any other
            education institution recognized as such or declared as
            deemed University under Section 3 of the University Grants
            Commission Act, 1956 or possess an equivalent qualification
            recognized by the Government.
            (ii)        the basic knowledge of computer application as
            prescribed in the Gujarat Civil Services Classification and
            Recruitment (General) Rules, 1967;
            (iii) adequate knowledge of Gujarati or Hindi or both.
            Explanation:
            (i) If a class or division is not awarded, minimum 60% of
            aggregate marks shall be considered equivalent to first
            class; or
            (ii) If a grade point system is adopted, the Cumulative Grade
            Point Average (CGPA) shall be converted in equivalent
            marks as below:-


              Grade Point                     Equivalant Percentage


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                   6.25                             55%

                   6.75                             60%

                   7.25                             65%

                   7.75                             70%

                   8.25                             75%




[2.5]          The explanation appended to these sub-rules would

not be necessary for the purpose of this writ petition.

[2.6]          As could be noticed above, the Rule is in three parts:

[2.7]          The 1st part states that in order to be selected to the

post of Assistant Professor, the candidate must possess a

Bachelor's Degree and a Postgraduate Degree in the relevant

branch of engineering and technology with first class.

[2.8]          The 2nd part states that a person who holds an

equivalent bachelor’s degree in engineering or technology and

master’s degree in engineering or technology obtained from any

other university incorporated under a Central Act or a State Act,

or any other educational institution recognized as a deemed

university, is also eligible to apply.

[2.9]          The 3rd part states that if a candidate possesses an

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equivalent qualification recognized by the Government, he would

also be eligible to be considered for appointment as an Assistant

Professor.

[2.10.]        As already noticed above, in the notification the

column       relating   to   allied    qualifications    i.e.,    equivalent

qualifications, the notification did not specify any other

equivalent educational qualification other than the engineering

degree and postgraduate degree in engineering and technology

in the relevant subject, i.e., in the subject of Industrial

Engineering. Thus, as per the notification, only the candidates

who possessed an Engineering Degree in Industrial Engineering

could apply.

[2.11]         The last date for submission of applications was

09.12.2015.

[2.12]         A preliminary test was conducted on 18.03.2017.

[2.13]         On 14.06.2017, the Government issued a resolution

in relation to the equivalency of various graduate and

postgraduate degrees in Engineering and Technology. The

operative part of the resolution reads as follows:

            “Resolution:



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               After careful consideration and clubbing all the previous
          Government Resolution in this regard read from serial No.
          (2) to (9) above the Government is pleased to decide
          equivalent graduate and post graduate degree courses in
          engineering or technology as requisite qualifications 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 annexed to this resolution.
               While recruiting the candidate for various teaching post
          mentioned in column 2, preference shall be given to the
          candidates of the appropriate basic branch shown in column
          3.
               In the Annexure, column 3 shows appropriate basic
          degree branch (B.E./B.Tech) in Engineering or Technology
          for the post mentioned in column 2 while column 4 refers to
          the equivalent branch of M.E./M.Tech. degree course in
          engineering or technology.
               If a candidate is not available in basic degree branch
          mentioned in column 3 than candidates of corresponding
          B.E./B.Tech branch can be considered as mentioned in
          column 5 but such candidate must be having any one of the
          post graduate degree shown in column No.-4 of the relevant
          basic branch.
               This Government Resolution shall come into force from
          the date of issue.
               By order and in the name of the Governor of Gujarat.




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[2.14]         Pursuant to this resolution, a corrigendum to the

recruitment notification was issued.

[2.15]         In the light of this corrigendum which indicated the

equivalent qualifications which were acceptable, the appellant

herein submitted an application. It may be pertinent to state

here that the appellant was a candidate who possessed a basic

degree in Mechanical Engineering and a Postgraduate degree in

Industrial Engineering.

[2.16]         A list of successful candidates was thereafter

published and they were called for verification of documents.

This list consisted of 8 candidates.

[2.17]         On 12.09.2017, a list of eligible candidates was

published who were eligible for the oral interview.

[2.18]         It may be pertinent to state here that apart from the

list of candidates who were found eligible for oral interview in the

branch of Industrial Engineering, lists were also published in

respect of other branches. The said list in respect of other

branches came to be challenged by SCA No.14742/2017 (in

which there were 16 petitioners) and in SCA No.14764/2017

(which had 5 petitioners). These writ petitions were in relation to


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the post of Assistant Professor in the subject of Information

Technology.

[2.19]         The contention advanced in those writ petitions was

that the Government Resolution dated 14.06.2016 had clearly

stated, while recognizing equivalent qualifications, that only

when the candidates in the relevant branch were unavailable

could the candidates who had equivalent degrees be considered.

The dispute arose, because the GPSC was not in alignment with

the view expressed in the GR, and therefore there was some

disparity.

[2.20]         A Learned Single Judge of this Court, on considering

the contentions advanced by all the parties, including the GPSC,

passed an order on 31.08.2017 holding that the GR dated

14.06.2016 was clear and the candidates who did not possess a

degree in the relevant branch could be considered only if the

candidates possessing degrees from the relevant branch were

not available.

[2.21]         In short, the learned Single Judge came to the

conclusion that the preference ought to be given by the GR

dated 14.06.2016 to those candidates who possessed a degree


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in the relevant branch to which the post was being advertised,

who would have a preferential right to be appointed, and only if

no candidates from that relevant branch were available,

candidates having equivalent degrees could be considered.

[2.22]         It may however be pertinent to state here that the

entitlement of the Government to make this preference while

recognising equivalent educational qualifications was neither

argued not considered before the Learned Single Judge in this

writ petition.

[2.23]         The GPSC appears to have challenged the order

passed by the learned Single Judge by filing an appeal but it

subsequently chose to withdraw the appeal and consequently

bound itself to the interpretation given to the GR by the learned

Single Judge of this Court.

[2.24]         Pursuant to this decision of the learned Single Judge,

a revised list of eligible candidates was published. Thereafter, a

final list of the candidates eligible for oral interview was also

published.

[2.25]         The GPSC, accordingly, sent call letters to those

candidates who had been found eligible for undergoing the

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interviews. In this call letter, the GPSC had clearly stated that the

requirement prescribed in the recruitment notification that the

candidate was required to obtain minimum marks (35 out of 100)

had been deleted, thereby, signifying that there was no

requirement of securing minimum marks in the interview.

[2.26]         On 29.02.2018, interviews were conducted. In this

interview, the appellant herein, who possessed an engineering

degree in mechanical engineering and postgraduate degree in

Industrial Engineering was recommended for being appointed.

[2.27]         The third respondent, who possessed a degree in

Industrial Engineering and a postgraduate degree in the

Manufacturing and System Engineering was placed in the waiting

list at serial No.2.

[2.28]         This recommendation in favour of the appellant was

on the basis of the higher marks, i.e., 61 marks, that he had

obtained in the interview. The third respondent was placed in the

waiting list because he had obtained 20 marks in the interview.

In short, the appellant had been recommended for selection

because he was more meritorious than the third respondent.

[2.29]         Being aggrieved by this declaration, the third

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respondent filed a writ petition, in which it was fundamentally

contended that by virtue of the preference granted to the

candidate who had a basic engineering degree in the relevant

branch, the recommendation in favour of the appellant, who did

not possess the basic degree in the relevant branch, was

incorrect.

[2.30]         It was urged that candidates such as the appellant

who did not possess the degree from the relevant branch could

be considered for selection if and only if the candidates

possessing the basic engineering degree from the relevant

branch were unavailable. It was therefore contended that since

the third respondent was the only candidate who possessed the

basic engineering degree in the relevant branch, no other

candidate could even be considered, let alone be recommended,

and consequently the respondents were required to select the

third respondent and not the appellant.

[2.31]         The learned Single Judge, by the impugned order, has

accepted the plea of the third respondent and has come to the

conclusion that the GR dated 14.06.2016 clearly granted a

preference to the candidates who possessed an engineering


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degree in the basic branch of the relevant branch, and

candidates who possessed a basic engineering degree in the

equivalent         branch   could   be      considered      only      if    the

aforementioned candidates were unavailable, and he therefore

set aside the recommendation made in favour of the appellant

and directed the GPSC to prepare a fresh result on the basis of

his observations and send an appropriate proposal selecting the

third respondent to the State.

[3]    Being aggrieved by this order, the present writ appeal has

been preferred.

[4]    Learned Counsel for the appellant contended that the GR

dated 14.06.2016 has not been appreciated in the proper

perspective by the learned Industrial Engineering. It was

contended that the GR could only be considered for the purpose

of recognising an equivalent degree, and the GR insofar as it

related to granting of preference ought to be ignored in its

totality, since it was beyond the jurisdiction of the Government

to grant preference by virtue of the limited role that the

Government had to play under the rules to declare equivalence.

[5]    He submitted that once the Government recognised a


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person who possessed a degree in mechanical engineering as

equivalent to a candidate who possessed a basic degree in

Industrial Engineering, in law, both the candidates possessed the

requisite educational qualifications, and the selecting authority

had to necessarily appoint the more meritorious among these

candidates.

[6]    He submitted that once the educational qualifications were

considered equal, there was no question of granting a preference

to either one of the candidates. He submitted that the very

purpose of considering one educational qualification to be equal

to the other was that the educational qualification prescribed for

that particular post would be satisfied by either of the

educational qualifications, and the most meritorious among them

would have to be selected.

[7]    He also submitted that even if the said GR had not been

challenged, the same would be of no consequence since the

preference granted under the GR was void ab initio. He

submitted          that    the   recruitment        rules    empowered           the

Government to only recognise and state the equivalent

qualification,       and    apart   from      recognising      the     equivalent


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qualification, the State had no jurisdiction to thereafter proceed

to state that preference would be given to the holder of a basic

engineering degree of that relevant branch.

[8]     He submitted that this GR basically amended the statutory

rules insofar as it related to the grant of preference, which was

clearly impermissible and could not be considered. He also

argued that it is a settled position of law that if a government

resolution seeks to legislate while exercising its limited

administrative power to declare equivalence, the same would be

void ab initio and would have to be ignored.

[9]     Learned Senior Counsel Mr. Dave, appearing on behalf of

the third respondent, i.e., the candidate who possessed the basic

engineering degree of Industrial Engineering, i.e., the relevant

branch, argued that there was absolutely no infirmity in the

order     of       the   learned   Industrial      Engineering       warranting

interference in appeal. He submitted that the Government, which

was the ultimate authority and the employer, had the right to

choose which candidate could be appointed, and if the

Government had sought to grant preference to the person who

possessed a basic engineering degree in the relevant branch


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over the person who had a basic engineering degree in an allied

branch, the same could not be found fault with.

[10] Learned Senior Counsel pointed out that the intent of

granting the preference was patently obvious, i.e., a person who

possessed a basic engineering degree in the relevant branch,

i.e., Industrial Engineering, would be much better equipped to

educate the students who wanted to study and acquire a degree

in Industrial Engineering as compared to a candidate who

possessed a basic degree in some other branch.

[11] He submitted that essentially the person who possessed a

basic degree in the relevant branch would be a specialist and

better suited to impart education as compared to other

candidates, and it was precisely for this reason the State had

made it clear that only if these specific candidates were

unavailable could other candidates be considered. He also

submitted that the learned Industrial Engineering was merely

giving effect to this policy, which was in the larger interest of the

students, and therefore no infirmity could be attached to the said

policy.

[12] Learned Senior Counsel also argued that the appellant got


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a chance to even apply to the post only because of the GR dated

14.06.2016. He therefore submitted that the appellant could not

disown the GR dated 14.06.2016 or argue for disregarding one

portion of the GR dated 14.06.2016. He submitted that the GR

dated 14.06.2016 would have to be applied in its totality and

cannot be severed in two parts and only that part which was

amenable to the interest of the appellant be adopted. He

therefore submitted that the argument of the appellant's counsel

that that portion of the GR which meant the preference should

be ignored was wholly untenable and was required to be rejected

in its totality.

[13] In the alternative, the learned Senior Counsel argued that

the Government did have the power to step in and fill up a

lacuna, especially when it noticed a clear lacuna in the rules.

Since the recruitment rules were framed under Article 309 and

these rules contained this lacuna of not having a preference,

though the rule specifically stated that the person should

possess a degree in the relevant branch, the State was basically

acting and was exercising its powers under Article 309 and filling

up the lacuna by providing a preference.



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[14] He also submitted that even if Article 309 is inapplicable,

the State would still have the power, that is an executive power

available under Article 162 of the Constitution, to issue

instructions whenever it was necessary to rectify a defect in the

existing rules. He therefore submitted that the GR dated

14.06.2016 would have to be considered not only as the

Government's recognition of an equivalent qualification but also

the Government's creation of a rule granting preference, and this

would basically supplement the existing rules.

[15] Learned AGP, Venugopal Patel, adopted the arguments of

the learned Senior Counsel and supported the judgment. He

contended that the State was justified in creating a preference in

favour of the person who had the basic engineering degree in

the relevant branch and this prerogative was available to the

Government by virtue of being the employer and also because it

did possess the power to frame rules. The mere fact that the

intention was forthcoming through a Government resolution

would not make any difference, and so long as the Government

had the power to prescribe a preference in the matters of

recruitment, the GR could not be found fault with. He also



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submitted that the GR had been accepted by the appellant, and

the appellant, having taken benefit of the GR, cannot disown that

part of the GR which was adverse to his interest.

[16] Learned Counsel for the appellant also placed reliance upon

the judgment rendered by the Hon’ble Supreme Court in (1995)

6 SCC 1 to contend that Government had the jurisdiction to issue

executive instructions under Articles 73 and 162 to fill up the

gaps and omissions in the rules. He also relied upon the decision

rendered by the Hon’ble Supreme Court in (2009) 5 SCC 1 to

contend that if the State had the legislative competence to frame

rules, it could issue Government orders in exercise of its powers

under Article 162. He relied upon the judgment rendered in

(2023) SCC Online SC 724 to contend that when there was no

challenge to the validity of the rules, no arguments could be

advanced on them. Lastly, he relied upon the judgment rendered

in (2023) 9 SCC 144 to support his argument that if no prayer

was made in the petition challenging the vires of the rules, there

would be absence of any foundation in the pleadings and this

Court cannot entertain a plea regarding the validity of the rule.

[17] Learned Counsel appearing for the GPSC submitted that the


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GPSC was bound by the order passed by the Government in light

of the withdrawal of the appeal by GPSC in the connected

matters. He, therefore, in a sense, supported the State and the

respondent No. 3.

[18] In the light of the above submissions, the only question that

arises for consideration in this appeal, is whether the

Government could, while exercising its power under the Rule to

declare equivalence in the educational qualifications, also create

a preference in favor of the candidate who possessed the original

qualifications sought for and, as a consequence, whether the

order of the learned Single Judge was justified?

[19] The basic fact that the appellant did not possess a basic

degree in the relevant branch, i.e., in Industrial Engineering, and

that the third respondent possessed the basic degree in

Industrial Engineering, is not in dispute. The controversy arises

only because of this fact.

[20] In order to examine this contention, the basic requirement

prescribed under the recruitment rules for being eligible to apply

would be mainly relevant. As already extracted above, the

educational qualification prescribed in respect of recruitment of


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an Assistant Professor in Government engineering colleges was

any one of three qualifications. Firstly, the candidate could

possess a bachelor's degree and a postgraduate degree in the

relevant branch of engineering and technology with first class or

Secondly, the candidate could have an equivalent bachelor

degree of engineering or technology and Master of Engineering

or Technology obtained from any of the universities incorporated

by or under the Central or State Act in India or by any other

educational institution recognized as such or declared to be a

deemed university or Thirdly, that a candidate could possess an

equivalent qualification recognized by the Government.

[21] A plain reading of this particular rule would indicate that it

was not necessary for the candidate seeking for recruitment as

Assistant Professor to necessarily have only a degree in the

relevant branch. The fact that the rule provided for a candidate

who possessed an equivalent qualification which was recognized

by the Government would, by itself, indicate that the degree in

relevant branch was not mandatory. To put it differently, the

basic degree of engineering in the relevant branch would also

bring within its ambit any equivalent qualification recognized by



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the Government.

[22] The rule would also indicate that the equivalent qualification

was to be decided only by the Government. The moment the

Government recognized a particular equivalent qualification,

then, a candidate who possessed a bachelor degree and a

postgraduate degree in the relevant branch and a candidate who

possessed the equivalent qualification, would both be on par and

would have to be construed as being eligible on the parameter of

educational qualification.

[23] To put it differently, the candidate who possessed a basic

engineering in a branch other than the relevant branch would be

on par with the candidate who possessed a degree in the

relevant branch of engineering and there would be no

differentiating factor between them.

[24] The intent of this rule would indicate that to be an Assistant

Professor in a Government engineering college, the possession of

only a basic degree in engineering was required and it was not

mandatory for a candidate to have a basic engineering in the

relevant branch. If the rule had permitted the Government to

declare an equivalent qualification to the degree in the relevant


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branch, it would necessarily indicate that, that the said

equivalent qualification was on par with the basic degree in

engineering of that relevant branch and that would be sufficient

for the discharge of duties of an Assistant Professor.

[25] As a consequence of this, it would also follow that if the

candidate who possessed a degree in the relevant branch and

the candidate who possessed an equivalent qualification will

have to necessarily compete as equals in the matter of selection.

In other words, once equivalence was declared by the

Government, the candidate with a degree in the relevant branch

cannot claim superiority over the candidate who possessed the

degree in the equivalent course.

[26] If the Government declared two courses to be equal to one

and another, it is obvious that the holders of the degrees from

these courses would have to be considered equal. If both the

candidates are considered as equals, it is obvious that their

comparative merit would be the only criteria for being recruited,

and no preference can be attached to the candidate who has the

degree in the relevant branch over the person who has an

equivalent degree.


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[27] In the instant case, it is not in dispute that the appellant,

who possessed an equivalent qualification, did secure higher

marks in the interview, and this would translate in him being

more meritorious than the respondent No. 3. If that is the

resultant position, the candidature of the appellant would have

to be preferred over that of the respondent No. 3.

[28] The learned Single Judge has, however, proceeded on the

premise       that   the   Government       resolution    which       declared

equivalence also contained a clause which provided a preference

to the person who had the degree in the relevant branch, and

this preference would have to be given effect, more so when the

same was not challenged and the appellant, in fact, became

eligible to apply only because of this Government resolution

which declared his qualification to be equal to that of the

respondent No. 3.

[29] It is for this reason that the learned Senior Counsel

appearing for the respondent No. 3 laid great emphasis on the

fact that the Government resolution, which had been accepted

by the appellant, could not be read in isolation and the part

relating to granting preference could be ignored in its entirety,


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and only the part relating to equivalence can be acted upon.

[30] This argument of the learned Senior Counsel, on the face of

it, appears to be attractive. However, on a closer scrutiny, of the

recruitment rule, it becomes it clear that the rule only permitted

the Government to recognize an equivalent qualification and

nothing more. The Rule, which only conferred the power to

recognise equivalent educational qualifications, did not enable

the Government to modify the educational qualifications such as

granting preference for one qualification over the other. If the

recruitment        rule   per    se     permitted     multiple       education

qualifications to be adequate for appointing an Assistant

Professor, and it only imposed a condition that the equivalent

education qualification should be recognized by the Government,

then the Government cannot go beyond its limited role of

determining        equivalence        and    cannot    be     permitted            to

fundamentally amend the rule.

[31] It is to be noticed here that when the rule permits different

education qualifications to be adequate and confers only limited

power on the Government to recognize and declare the

equivalence, the Government cannot exceed this scope available


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to it and proceed to declare a preference for one education

qualification over the other.

[32] It is also to be noticed that the recruitment rule did not

categorically state that a basic engineering degree in that

relevant subject was mandatory. The fact that the rule itself

provided for other equivalent education qualifications to be

considered was by itself indicative of the fact that the basic

degree in the relevant branch was only directory.

[33] If the power of the Government was only to recognize and

declare an equivalent education qualification, the prescription of

a preference of one education qualification over the other would

be non est. Once the education qualifications are declared and

recognized to be equivalent, all candidates who possess the

equivalent qualifications would be on par with the candidates

who possessed the qualifications in relevant branch and it is only

their comparative merit to determine their recruitment. If

equivalence had been recognised and then a preference was

conferred for the original qualification, the very concept of

equivalence would be defeated.

[34] Learned Senior Counsel however sought to contend that the


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recruitment rules are framed under Article 309 of the

Constitution of India and the Government having issued the GR

declaring the preference, the power of the Government can be

traced back to its rule making power and would have to be

construed as amending the rules.

[35] It is to be stated here that if the Government was to frame

a rule, the procedure under Article 309 will have to be

necessarily followed. The Government, no doubt, has the power

under Article 309 to frame the rules which, in fact, it had

exercised while formulating the recruitment rules in 2011.

However, it is to be stated here that when the Government was

specifically exercising that power conferred on it under the rule,

i.e., recognizing equivalent degree, it could not traverse beyond

this power. If the Government had traversed beyond this power

of declaring equivalence, such as according preference to one

education qualification, it is obvious that the said exercise of

power is wholly illegal and the consequential preference granted

would be non est and void.

[36] An argument was advanced that the GR dated 14.06.2016

had been considered by a learned single judge of this Court in


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SCA No. 15268/2018 and this Court had declared that the

preference given to the candidates holding a degree in the

relevant branch was justified and therefore the preference

cannot be challenged in this appeal. In the matter before the

learned      Single   Judge,   the   question    as     to   whether        the

Government possessed the power grant a preference while

recognising equivalent qualification was not the subject matter

of that petition and the Learned Single Judge accordingly

interpreted the GR as it existed. However, in this appeal, the

power of the Government to grant a preference while

recognising an equivalent education has been raised and hence

the same been considered in the aforementioned terms.

Therefore, the judgment of the learned Single Judge, in a petition

where the competence of the Government to grant a preference

was not an issue, cannot be relied upon to say that the GR is

valid.

[37] Learned Senior Counsel also sought to contend that the rule

had not been challenged by the petitioner and therefore he

cannot contend that the GR in so far as it relates to according

preference should be ignored. As stated above, he placed



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reliance on two decisions of the Hon’ble Supreme Court in the

case of Dhanraj v. Vikram Singh and Ors. and Dr. Krushna

Chandra Sahu & Ors. v. State of Orissa & Ors.

[38] In the case of Dhanraj (supra), the Hon’ble Court was

dealing with a case where the prayer in the petition was for a

direction to the respondents therein to follow rotation policy for

the general elections to the panchayats in compliance with the

statutory rules, and in that context, the Hon’ble Supreme Court

held that the decision of the High Court that certain provisions

were in conflict with other provisions of the act and they were

ordered to be ignored could not be accepted. It is obvious that in

that case the petitioners wanted the rotation policy for general

elections to be followed in compliance with the rules and

therefore the Supreme Court noticed that there was no challenge

to the validity of the rules and the High Court could not therefore

have traversed beyond the prayer of the petitioners therein.

Admittedly, such is not the case in the present case and

therefore this decision would not be of any benefit.

[39] Similar is the situation in the case of Union of India v.

Manjurani Routray & Ors. In that case, the Hon’ble Supreme


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Court was dealing with the case of the petitioner therein whose

request for being promoted had been rejected and the

respondents therein had been promoted. In that case it was

noticed that during the pendency of the application before the

CAT, the rules were formulated and one of the rules prescribed a

revised assessment procedure             which      was     the     basis     for

promotion. The applicant therein who approached CAT had

participated in the process and her rating was assessed in

accordance with the rules. In that context, the Hon’ble Supreme

Court noticed that when the rule under which she had

participated in the process had not been challenged, the High

Court was wrong in declaring the rule as ultra vires. Such a

situation is also not available in the present case.

[40] As already noticed above, the appellant did get a right to

participate in the recruitment process only because the

educational qualification that he possessed was recognized and

declared to be equivalent by the Government and by virtue of

this recognition a corrigendum came to be issued which enabled

him to apply. The Government while declaring the education

qualification of the appellant to be equal to that of the other



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candidates could not possibly, at the same time, reduce the

eligibility of the persons who possessed equivalent qualification

by granting the preference to the other candidates. The power to

recognize an equivalent qualification has basically been used to

virtually amend the rule even though the rule was not actually

amended. Such a procedure would therefore be clearly illegal.

This judgment cannot also therefore be of any assistance.

[41] In so far as the argument of the learned Senior Counsel

contending that the preference prescribed in the GR ought to be

construed as a statutory rule being prescribed by the

Government in exercise of its powers under Article 309, it is to

be stated here that in the very case relied on by the learned

Senior Counsel, i.e., in Dr. Krushna Chandra Sahu (Supra),

the Hon’ble Supreme Court had clearly stated as follows:

            "31. ……..If the statutory rules, in a given case, have not
            been made, either by the Parliament or by the State
            Legislature, or, for that matter, by the Governor of the State,
            it would be open to the appropriate Government (the
            Central Government under Article 73 and the State
            Govenrment     under      Article      162)   to   issue     executive
            instructions……”

[42] This would indicate that the power to issue executive


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instructions under Article 162 would be available only if there are

no statutory rules framed. In the instant case, admittedly, there

were statutory rules formulated and were covering the field and

therefore the question of exercising of Executive power would

not arise.

[43] The reliance placed on by the learned Senior Counsel in the

case of Andhra Pradesh Public Service Commission v.

Baloji Badhavath & Ors. cannot be of any assistance as in that

case the Hon’ble Supreme Court was dealing with a case where

the Government of Andhra Pradesh had issued orders laying

down norms to be adopted for filling up the vacancies and the

Hon’ble Supreme Court noticed that the Government of Andhra

Pradesh had issued a notification notifying 196 vacancies and

laying down a procedure for filling up the vacancies. In that case,

it has to be pointed out that the Supreme Court was not

considering a case where rules framed under 309 existed. That

was a case in which there were no rules under Article 309 and in

that context the Supreme Court stated that if the State had the

power to frame rules under Article 309, it was entitled to

exercise its power under Article 162 and lay down a procedure.



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[44] In this case, since there were rules framed under 309 in

place, the exercise of powers under Article 162 would not arise.

It is settled law that the power to issue executive instructions or

to exercise executive power would be available only if the field is

not occupied by any legislation. Once the legislation is existing,

the power to issue executive orders will not be available. Now,

the similar is the case of the Dr. Krushna Chandra Sahu (Supra).

[45] In the light of the above, these citations would also have no

application.

[46] The result of the above discussion is that the order of the

learned Single Judge cannot be sustained and will have to be

reversed and accordingly it is reversed.

[47] The recommendation of the appellant to be appointed will

therefore have to be acted upon and not the recommendation of

the respondent No. 3 for being appointed, as per the impugned

order.     The     respondent   shall,      therefore,     act     upon      the

recommendation made in favour of the appellant and conclude

the process of appointment in his favour.

[48] Any action taken pursuant to the order of the learned

Single Judge shall stands reversed in so far as the appellant and

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 respondent No. 3 are concerned by virtue of this order.

 [49] Accordingly, the present Letters Patent Appeal is allowed

 and the writ petition shall stand dismissed. In view of the order

 passed in the main matter, the connected Civil Application does

 not survive and is accordingly disposed of.



                                                                                            (N.S.SANJAY GOWDA,J)



                                                                                                         (J. L. ODEDRA, J)
 Mehul Desai




 FURTHER ORDER:

 [1]         A request for grant of an interim order for status-quo made

 by the respondent No. 3, is refused, since we find no justification

 for the said request.



                                                                                           (N.S.SANJAY GOWDA, J)



                                                                                                         (J. L. ODEDRA, J)
 Mehul Desai
Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: MEHULKUMAR BHIMABHAI DESAI(HCD0075), ENGLISH STENOGRAPHER GRADE TWO CLASS TWO, at High Court of Gujarat on 11/05/2026 08:46:08




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