A. L. KADRI v. GUJARAT AGRICULTURE UNIVERSITY — 1991 DIGILAW 357 (GUJ)

R. K. ABICHANDANI, J. ( 1 ) THE petitioners were employees of the Respondent No. 1-Gujarat Agricultural University. They have prayed for a direction for assigning deemed dates of seniority in the cadre of senior clerks in accordance with the rules which were in force in 1972 and for a further direction that the University should prepare the seniority lists of the cadre of senior clerks in accordance with the quota as prescribed by the said rules. ( 2 ) THE petitioners were formerly working in the office of the Directorate of Agriculture as Junior clerks and were recruited during the years 1960 to 1970 The Gujarat Agricultural University Act 1969 (hereinafter referred to as the said Act) was enacted on 17-9-1965 with a view to establish and incorporate a University for the development of agriculture including animal husbandry and allied sciences in the State of Gujarat. The Gujarat Agricultural University however came to be constituted on and from 1-2-1972. Chapter III of the said Act provided for the officers of the University and Section 9 enumerates the Vice-Chancellor as one such officer. Under Section 12 the powers and duties of the Vice-Chancellor are prescribed and he is made the principal executive and academic officer of the University and ex-officio member and Chairman of the Board and of the Academic Council. The Vice-Chancellor exercises general control over the affairs of the University and also has such other powers as may be prescribed for carrying out the purposes and provisions of the Act. Under Section 23 of the Act it is inter alia provided that the method of recruitment and other terms and conditions of service of all employees of the University and their powers and duties will be such as may from time to time be determined by the Statutes. Section 26 which deals with powers and functions of the Board of Management inter alia provides that the Board has the power to approve the recommendations for appointment of officers teachers and other staff of the University in the prescribed manner and that it has also power to make amend or repeal the Statutes. Section 26 which deals with powers and functions of the Board of Management inter alia provides that the Board has the power to approve the recommendations for appointment of officers teachers and other staff of the University in the prescribed manner and that it has also power to make amend or repeal the Statutes. Section 31 which deals with Statutes inter alia provides that the Statutes may provide for the manner of appointments and the conditions of service of the officers of the University method of recruitment and other conditions of service of various categories of employees of the University and the manner of appointment of teaching and other non-teaching staff. Under sub-section (3) of Section 33 Jurisdiction over the matters specified therein assigned to the Director of Agriculture and Animal Husbandry State of Gujarat and to other agencies of the State Government concerned with research of agriculture was to be transferred to the University in the manner as may be mutually agreed upon between the Board and the State Government. As provided by Section 34 (3) in order that the University may conduct educational activities as specified in the Act the State Government was required to transfer to the University the necessary personnel and funds in accordance with a plan to be mutually agreed upon between the Board and the State Government. ( 3 ) IT appears that in view of the provisions of Section 34 (3) of the said Act envisaging transfer of the necessary personnel the petitioners who were working in the Directorate of Agriculture as junior clerks along with others were transferred to the University on and from 1-6-1972 as junior clerks. According to the petitioners the first Vice-Chancellor of the University recruited about 85 senior clerks between 1/06/1972 and January 1973 by direct recruitment though the statutory rules framed by the State Government for the purpose of recruiting senior clerks in the Directorate of Agriculture were in force and provided for a quota of two by promotion and one by direct recruitment. ( 4 ) IT is the case of the petitioners in paragraph 5 of the petition that the persons who were directly appointed as senior clerks were all provisionally appointed subject to the protection afforded to the petitioners under Section 52 of the said Act and subject to regularisation of their appointment as per the Statutes framed by the Board of Management. According to them on their promotion from the cadre of junior clerks to the cadre of senior clerks they were entitled to be given deemed dates of promotion as they became senior vis-a-vis the direct recruits who were already appointed to the said cadre. The petitioners have alleged that the university by retaining all directly recruited senior clerks in Dantiwada zone after its decision to create administrative zones has denied equal treatment to the transferred junior clerks who have been put to disadvantage in the matter of seniority and promotion. Moreover the technical staff members are arranged in seniority according to the quota rule while the petitioners are discriminated against by not following the quota rule thereby affecting their fundamental rights and Articles 14 and 16 of the Constitution. ( 5 ) THE University has contested the petition and in the affidavit-in-reply filed on behalf of the University it has been contended that the recruitment for direct appointment of senior clerks was made by the Vice-Chancellor in exercise of powers conferred upon him under Section 56 (d) of the said Act. It is contended that the quota rule relied upon by the petitioners was not applicable to such appointments and that the protection which was conferred by Section 52 of the said Act was only limited to the conditions of service applicable to the post of junior clerk which they were holding on the eve of their transfer to the University from the Directorate of Agriculture. It is contended that in all 77 direct recruits were appointed in the newly created 77 posts of senior clerks. It is also contended that the rules relied upon by the petitioners were not applicable to the recruitment to the said posts of senior clerks and that direct recruits were entitled to count their seniority from the dates of their appointment in the cadre of senior clerks. It is further contended that the claim on the basis of quota rule was never put forth by these petitioners when the provisional seniority lists were prepared in 1975-1976 and 1978-1979 and those lists were never objected to on the ground that the principle adopted for preparing them was erroneous or that the recruitment of the direct recruits was illegal. It is also contended that the recruitment of 77 employees in the cadre of senior clerks was confined only to the office of Vice-Chancellor. It is also contended that the recruitment of 77 employees in the cadre of senior clerks was confined only to the office of Vice-Chancellor. ( 6 ) IT was contended on behalf of the petitioners by the learned Counsel Mr. P. V. Hathi that the respondent - University acted arbitrarily in making appointments of direct senior clerks and in preparing seniority lists of senior clerks inconsistent with the recruitment rules which were in force in the government and in not ar ranging seniority lists according to the ratio prescribed therein. Mr. P. V. Hathi heavily relied upon the recruitment rules published under notification dated 18/11/1965 a copy of which appears at Annexure-`bb to the petition. Under these recruitment rules appointment to the post of senior clerks in the offices under the Agricultural Department of the Government was required to be made by direct recruitment or by efficiency. Rule 2 prescribed the ratio of 1 to 2 between direct recruits and promotees. Mr. Hathi submitted that the University was required to follow the rules and regulations prevalent in the Government as was reflected in the resolution at `annexure-D dated 11-8-1965 to the petition by which the Board had granted relaxation of age limit in the cases which were referred to it. ( 7 ) UNDER Section 35 Vice-Chancellor of the University is made responsible for co-ordination of functions and is required to work through appropriate officers and staff of the University for the purposes indicated in the said provision. Chapter-IX which laid down transitory provisions provided for the appointment of the first Vice-Chancellor and he was vested with transitory powers under Section 54 which inter alia included of provisional Statutes for constituting the authorities. The first Vice-Chancellor was also vested with extraordinary powers under Section 56 which laid down that the first Vice-Chancellor shall have powers until the Board of Management commences to exercise its functions to make for a period not exceeding four years such appointments as may be necessary to enable the Act or any part thereof to be brought into force with the sanction of the Chancellor. Under the Clause (f) of Section 56 he was empowered generally to exercise all or any of the powers conferred on the Board of Management by or under the provisions of the said Act. Under the Clause (f) of Section 56 he was empowered generally to exercise all or any of the powers conferred on the Board of Management by or under the provisions of the said Act. Under Section 26 (1) (b) the Board had power to approve the recommendations for appointment of the officers teachers and other staff of the University in the prescribed manner. In views of these statutory provisions it becomes abundantly clear that the Vice-Chancellor was vested with transitory powers to make appointment of the staff. It would therefore be obvious that he was empowered to make appointments by direct recruitment was not disputed but it was contended on behalf of the petitioner that he ought to have followed the recruitment rules which were applicable in the Directorate of Agriculture and which prescribed ratio of 1 to 2 between direct recruits and promotee Senior clerks. Mr. Hathi appearing for the petitioners tried to draw support for his arguments from the provisions of Section 52 of the said Act. It will however be seen that as provided in sub-section (1) of Section 52 every person taken over by the University was made subject to the provisions of the said Act and Statutes and Regulations made thereunder. The employees of the State Government who were taken over by the University were required to exercise their option of retiring or permanent absorption within two years from the date such employees were taken over by the University. As provided in sub-section (4) of Section 52 if any officer or servant of the State Government failed to give notice of retirement of permanent absorption then he was deemed to have opted for permanent absorption. It will also be seen from the provisions of sub-section (2) of Section 52 that such employees retained their lien on their posts in the service of the State Government until requisite notice was given within two years or until they were deemed to have opted for permanent absorption under sub-section (4 ). It will also be seen from the provisions of sub-section (2) of Section 52 that such employees retained their lien on their posts in the service of the State Government until requisite notice was given within two years or until they were deemed to have opted for permanent absorption under sub-section (4 ). On absorption such employees were entitled to such terms and conditions of service as regards remuneration leave and pension and such rights as respects disciplinary matters or rights similar thereto as changed circumstances may permit and as were not less favourable than those to which such employees were entitled to immediately before they were taken over by the University as provided in Clause (b) of sub-section (3) of Section 52. It is thus clear that the protection which was afforded to the employees who were taken over by the University from the State Government was in respect of the posts to which they were transferred and there is no warrant for an inference from the provisions of Section 52 that the employees who were transferred as junior clerks carried with them the mode of promotion which was applicable in other departments of the State Government where they were formerly serving. The recruitment rules for the cadre of senior clerks framed under notification dated 18-11-1965 a copy of which is at Annexure-`bb to the petition were intended to be applied to recruitment of Senior Clerks in the offices which were under the Agricultural Department and the Government. They could not have therefore been applied to the University merely on the basis of fact that some staff was to be provided by the State Government to the University. The employees who were absorbed by the University were entitled to protection only in respect of matters provided for in Section 52 in the cadre in which they were absorbed by the University. By no stretch of imagination can it be inferred either from the provisions of Section 52 or from the fact of the staff being transferred from the State Government to the University in the cadre of Junior Clerks or even from the stray observations in the resolution at Annexure-D dated 11-8-1975 made in the context of age relaxation to the effect that initially the rules and regulations of the Government were to be followed. The quota rule prescribed for the cadre of senior clerks in the Agriculture Department would automatically apply to the cadre of senior clerks in the University. It will be noticed that the employees were drawn not only from the State Government but also from other institutions and colleges which may be having different mode of recruitment and rules governing recruitment. This situation also clearly negatives the possibility of automatic application of the recruitment rules of the Agriculture Department to the cadres in the University. The recruitment rules sought to be relied upon by the petitioners have not been adopted by reference either in the provisions of said Act or in the Statutes framed under the Act. The first Vice-Chancellor was clearly given the power to make appointment to the cadre of senior clerks and there is no dispute about the fact that the posts which were created by him were duly sanctioned. It also appears that in the first meeting of the Board of Management which was convened on 7-10-1972 Statute 28 (a) was framed and it reads as follows : ( 8 ) THE Vice-Chancellor shall exercise full powers in respect of adminstration and financial matters listed in Schedule appended to this Statute. ( 9 ) IN the Schedule to Statute 28 (a) enumerating the powers of the Vice-Chancellors Item No. 3 included the power to appoint employees other than officers and teachers covered by Items No. 1 and 2. It will be noticed that under Section 12 (9) of the Act it has been provided that the Vice-Chancellor shall exercise such other powers as may be prescribed for carrying out the purposes and provisions of the Act and Statute 28 of the first Statutes provided that the powers to appoint an employee in the services of the University shall vest in the Vice-Chancellor and all the employees of the University were subject to the control of Vice-Chancellor. The fact that 75 posts of senior clerks were sanctioned by the Vice-Chancellor for the office of first Vice-Chancellor is borne out from the Statement-1 which was proposed in agenda Item No. 2. 6 for obtaining posts facto sanction of the Chancellor in respect of these posts which were created by the Vice-Chancellor. Sanction was accorded to the creation of said posts as recorded in the minutes of the second meeting of Board of Management which took place on 25-11-1972. 6 for obtaining posts facto sanction of the Chancellor in respect of these posts which were created by the Vice-Chancellor. Sanction was accorded to the creation of said posts as recorded in the minutes of the second meeting of Board of Management which took place on 25-11-1972. The relevant decision appears at page No. 57 in respect of Item No. 2. 6 which is given in detail at pages No. 73 to 79 of Gujarat Agricultural University Minutes and Meetings of Board of Management - Volumes I and II which was referred to and relied upon by both the sides at the time of the hearing this matter. ( 10 ) NO provision has been pointed out either from the Act of Statutes to indicate that the Vice-Chancellor was required to follow the recruitment rules which were framed by the government for the post of senior clerk under the Directorate of Agriculture while making appointments of senior clerks in his office on the posts which were newly created by him and were duly sanctioned by the competent authority. It is also clear that the petitioners never raised any such contentions claiming seniority over the direct recruits on the basis of any quota rule earlier when provisional seniority lists were published in the years 1975 1976 and 1978. ( 11 ) AS noticed above the transitory provision empowered the first Vice-Chancellor to make recruitment to the posts created in his office in the cadre of senior clerks even after the Board was constituted. By virtue of Statute 28 (A) the power continued to remain with the Vice-Chancellor for making such appointments. The petitioners have not challenged the validity of appointment of these direct recruits and even at the arguments the learned Counsel for the petitioners clearly submitted that it was not their intention to challenge the appointment of directly recruited senior clerks but they were praying for the applicability of the ratio which was prescribed for the cadre in the government department. As observed above there is absolutely no warrant for applying the recruitment rules prevalent in the Agricultural Department of the State Government to the cadre of senior clerks in the University which was governed by its own rules and regulations and by transitory provisions which were contained in the said Act and which did not by reference incorporate in any such ratio as is sought to be invoked from the provisions of the rules of the government department. Thus even apart from the question of delay there is no merit in this petition and the contentions raised on behalf of the petitioners have no substance. ( 12 ) IT would appear from the material on record that the petitioners have acquiesced to the appointment of direct recruits against the newly created posts of senior clerks. These appointments were made much prior to the promotion of the cadre of junior clerks. The petitioners had no right to be promoted as senior clerks but had only right to be considered for the posts. The appointment of senior clerks was made after issuing a proper notice on 19-5-1972 in the daily the Gujarat Samachar which specified educational qualifications for the posts of senior clerks. The same advertisement also invited applications for seven other categories of posts. The candidates falling in the age bracket had equal right to compete if they satisfied the qualifications mentioned therein. Though the posts of senior clerks were advertised for direct recruitment on 19 the petitioners chose to come over to the University from 1-6-1972 and never challenged that advertisement. Even persons who were employed elsewhere were eligible to send their applications through their employers. It was open to the petitioners to compete for the direct recruitment to the cadre of Senior clerks at that time when they were serving as Junior clerks if they satisfied the standards prescribed in the advertisement. When the advertisement was issued for the recruitment to these newly created posts no one objected against it on the ground that the recruitment ought to be on the basis of recruitment rules applicable in the Directorate of Agriculture. When the advertisement was issued for the recruitment to these newly created posts no one objected against it on the ground that the recruitment ought to be on the basis of recruitment rules applicable in the Directorate of Agriculture. ( 13 ) AS observed above for a number of years though repeatedly provisional seniority lists were published none of these petitioners who later on came to be promoted as senior clerks ever raised a contention that they should be placed senior to the direct recruits on the basis of any quota rule. As observed above the quota rule prescribed in the State Government rules did not automatically apply to the cadre of junior clerks in the University. The petition therefore has no substance on merits and it is also bad on the ground of acquiescence. ( 14 ) IN Rabindra Nath v. Union of India reported in AIR 1970 SC 470 it was held that no relief can be given to the petitioner who without any reasonable explanation approached the Court after an inordinate delay where changes made in seniority list were attached after a lapse of 15 years. It was held that it would be unjust to deprive the officers of the rights which had accrued to them and each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after a lapse of a number of years. It was also held that if the Government turned down one representation the making of another representation on similar lines will not explain the delay. The said decision was followed by Supreme Court in R. S. Deodhar v. State of Maharashtra a in AIR 1974 S. C. 259 and it was held that the rule which says that a Court may not enquire into belated or stale claims is not a rule of law but a rule of practice based on sound and proper exercise of discretion to be followed on the facts of each case. ( 15 ) IN R. M. Ramual v. State of Himachal Pradesh reported in AIR 1989 SC 357 on which reliance was ought to be. ( 15 ) IN R. M. Ramual v. State of Himachal Pradesh reported in AIR 1989 SC 357 on which reliance was ought to be. placed on behalf of the petitioners on facts and circumstances of the case it was found that there was no unreasonable delay on the part of the appellant to challenge the impugned order and the seniority list. Therefore that case cannot help the petitioners. ( 16 ) RELIANCE on behalf of the petitioners on a decision of this Court in Special Civil Application No. 1493 of 1977 decided on November 1980 is also misconceived because in that case the Court was concerned with the allegation of discriminatory treatment to the employees falling in the same class III cadre. The Court held that for all practical purpose class III members of colleges were class III employees of the University and there was no basis put forth for showing that they needed to be classified separately. This decision has no bearing on any of the points arising in this matter. Under the above circumstances the petition must fail on merits and also independently on the ground of acquiescence and latches on the part of the petitioners. Rule is therefore discharged with no order as to costs. Interim relief stands vacated. .