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Gujarat High Court · body

2009 DIGILAW 548 (GUJ)

Shailesh M Patel v. State of Gujarat

2009-08-11

M.R.SHAH

body2009
JUDGMENT : 1. Rule. Mr. Pranav Dave, learned AGP waives service of rule on behalf of respondent No.1. Mr. D.G. Chauhan, learned Advocate waives service of rule on behalf of respondent No.2. Mr. K.B. Pujara, learned Advocate waives service of rule on behalf of respondent Nos.3 and 4. Mr. Paresh Upadhyay, learned Advocate waives service of rule on behalf of respondent No.5. As common question of law and facts arise in all these petitions, they are being disposed of by this common judgment and order. 2. In all these petitions respective petitioners have prayed for an appropriate writ, direction and/or order quashing and setting aside communication dated 16.03.2007 (Annexure - E) as well as 30.03.2009 (Annexure " H) providing for promotion as additional source of appointment to the posts of Assistant Professors and equivalent as illegal, contrary to the Act, Resolutions and the directives issued by the ICAR. It is also prayed to hold that the posts in the cadre of Assistant Professors and its equivalent can be filled in only by direct recruitment by an all India advertisement from amongst the candidates possessing requisite qualifications including NET. 2.1. It is the case on behalf of the respective petitioners that all the petitioners are holding the qualification of M.Sc. (Agriculture) with more than 55% marks. All of them have cleared National Eligibility Test ('NET' for short) conducted by the Agricultural Scientist Recruitment Board ('ASRB' for short) constituted by Indian Council of Agricultural Research ('ICAR' for short), New Delhi. That all the petitioners were appointed by direct recruitment on the post of Senior Research Assistant in 1995 and requisite qualification for appearing in the NET is M.Sc. (Agriculture). That respondent "University is an Agricultural University governed by the provisions of Gujarat Agricultural Universities Act, 2004. That national body established for the purpose of regulating the Agricultural Universities is ICAR that holds the same position as that of University Grants Commission ('UGC' for short) in respect of other Universities. That directions issued by the ICAR are statutory in nature and the recipient universities are bound to follow the same. That post of Agriculture Officer is equivalent to the post of Senior Research Assistant. That respondent University had provided for avenue of promotion to the Agriculture Officers to that of Assistant Professor and its equivalent posts. That directions issued by the ICAR are statutory in nature and the recipient universities are bound to follow the same. That post of Agriculture Officer is equivalent to the post of Senior Research Assistant. That respondent University had provided for avenue of promotion to the Agriculture Officers to that of Assistant Professor and its equivalent posts. However, the Government of Gujarat in its Agriculture and Rural Development Department passed a Resolution on 20.03.1989 accepting the recommendations of ICAR in respect of pay scales together with the terms and conditions of the revision of pay scales in Appendix I. The resolution also provided that 80% of financial aid for teaching staff will be provided by the ICAR and 20% financial aid will be paid by the State Government. That post of Assistant Professor and its equivalent posts are mentioned in para 3 of the resolution. It is the case on behalf of the petitioners that clause 6 of the resolution provides that the recruitment to the posts of Assistant Professor, Associate Professor and Professor and its equivalent in the Gujarat Agriculture University shall be on the basis of merit through All India advertisement and selection, provided that the Assistant Professors who fulfill the criteria prescribed in this scheme will be eligible for promotion to the post of Associate Professor. Thus according to the petitioners as per resolution dated 20.03.1989 only source of recruitment to the post of Assistant Professors and its equivalent posts is selection by direct recruitment. It is the case on behalf of the petitioners that after 1994 it was also compulsory by ICAR that any person who desires to apply for the post of Assistant Professor or its equivalent post must have passed NET. It is the case on behalf of the petitioners that inspite of above clear provisions of the Government Resolution prohibiting any other mode of recruitment to the post of Assistant Professor and its equivalent posts, about 176 Agriculture Officers were promoted to the post of Assistant Professor in the year 1990 " 1991. The Gujarat Agriculture University as it then passed a Resolution dated 04.05.1993 deleting the provision of promotion to the cadre of Assistant Professor. It is the case on behalf of the respective petitioners that as on date the position is that the post of Assistant Professor and its equivalent posts cannot be filled in except by direct recruitment. The Gujarat Agriculture University as it then passed a Resolution dated 04.05.1993 deleting the provision of promotion to the cadre of Assistant Professor. It is the case on behalf of the respective petitioners that as on date the position is that the post of Assistant Professor and its equivalent posts cannot be filled in except by direct recruitment. Inspite of that some of the employees from the cadre of Agriculture Officers approached the respondent Government seeking to introduce promotion as an additional mode of appointment to the post of Assistant Professor and its equivalent posts and inspite of Government Resolution dated 20.03.1989, decision has been taken vide communication dated 16.03.2007 addressed by Section Officer, Agriculture and Rural Development Department, Government of Gujarat providing for filling up of post of Assistant Professor and its equivalent post by way of promotion from the post of Agriculture Officers and therefore, the respective petitioners have preferred present Special Civil Applications for the aforesaid reliefs. 3. Mr. G.M. Joshi, learned Advocate as well as Mr. Paresh Upadhyay, learned Advocate appearing on behalf of the respective petitioners have vehemently submitted that as per Government Resolution dated 20.03.1989 post of Assistant Professor is required to be filled in only by way of direct recruitment and without any modification and/or fresh Resolution, communication dated 16.03.2007 by some Section Officer of Agriculture and Rural Development Department providing promotion to the post of Assistant Professor is absolutely illegal and most arbitrary. It is submitted that some of the Agriculture Officers preferred Special Civil Application No.13670 of 2007 before this Court challenging communication dated 16.03.2007 seeking the prayer that they were entitled to be promoted to the post of Assistant Professor as per the Notification dated 14.10.1986 and in the said Special Civil Application respondent "University has specifically admitted that post of Assistant Professor cannot be filled in by way of promotion as per Government Resolution dated 20.03.1989. It is further submitted that communication by Section Officer of Department, in the present case communication dated 16.03.2007 cannot override Government Resolution dated 20.03.1989 which has been issued under the seal of His Excellency the Governor of Gujarat. It is further submitted that communication by Section Officer of Department, in the present case communication dated 16.03.2007 cannot override Government Resolution dated 20.03.1989 which has been issued under the seal of His Excellency the Governor of Gujarat. It is further submitted that as such even considering communication dated 16.03.2007 a representation was made by the Vice Chancellor of respective Universities to regularise promotions which were granted in the year 1990 " 1991 to the post of Assistant Professor which were given contrary to the Government Resolution dated 20.03.1989. It is further submitted that not only that but even Gujarat Agriculture University vide its resolution dated 04.05.1993 deleted the provision of promotion to the cadre of Assistant Professor. Therefore, action of the respondents in filling up the post of Assistant Professor by way of promotion is illegal which deserves to be quashed and set aside and concerned respondents are to be directed to fill up the post of Assistant Professor by way of direct recruitment as per Government Resolution dated 20.03.1989. Therefore, it is requested to allow all these petitions. 4. All these petitions are opposed by Mr. K.B. Pujara, learned Advocate appearing on behalf of the private respondents who are Agriculture Officers serving in the respondent "University, Mr. D.G. Chauhan, learned Advocate has appeared on behalf of respondent No.2 "Agriculture University and Mr. Pranav Dave, learned AGP has appeared on behalf of the respondent "State. Mr. Pujara, learned Advocate appearing on behalf of the private respondents who are in support of promotion to the post of Assistant Professor has vehemently submitted that communication dated 16.03.2007 is and can be said to be decision of the State Government and therefore, respondent" University is bound to implement said decision. It is submitted that as such Government Resolution dated 20.03.1989 upon which reliance has been placed by the respective petitioners was with respect to implementation of pay scales etc. It is submitted that except respondent" University all other Universities in the State have already implemented communication dated 16.03.2007 and have already given promotion to the post of Assistant Professor and dispute is only with respect to Sardar Krushi Nagar Dandiwada Agriculture University. It is also further submitted that opinion of ICAR is only advisory in nature and has no statutory force and therefore, not binding to the State Government and Agriculture University as is case with the UGC. It is also further submitted that opinion of ICAR is only advisory in nature and has no statutory force and therefore, not binding to the State Government and Agriculture University as is case with the UGC. It is submitted that as per provisions of Gujarat Agricultural Universities Act, 2004, Board of management is the highest authority of the Agricultural University and it has statutory powers to frame the statute inter alia to provide for designation, qualification, method of recruitment, other terms and conditions of service of employees of the University and their duties. That the State Government in each year after due preparation made by the State Legislature makes provision for making grants to the University. It is submitted that in exercise of statutory powers the respondent Agricultural University has provided for recruitment and promotion from the post of Agricultural Officer to the post of Assistant Professors by way of Notification dated 14.10.1986. It is submitted that thereafter, the State Government issued Government Resolution dated 20.03.1989 for revision of scales of pay of teachers of Agricultural University. It is submitted that all the Vice Chancellors of respective Agricultural Universities approached State Government with the difficulties faced by the concerned employees/Agriculture Officers of the respective Agricultural Universities and in support of their case for filling up of post of Assistant Professors from Agriculture Officers and same came to be considered by letter/communication dated 16.03.2007. It is submitted that Vice Chancellor of four Agriculture Universities in their meeting dated 14.08.2007 resolved to suggest a modification to the Government of Gujarat in the letter dated 16.03.2007 and it was communicated by the University to the State Government by letter dated 01.10.2007 and thereupon the State Government considered the same and decided to amend the criteria for such promotion by its letter dated 30.03.2009. It is submitted that there is no illegality in the decision of the State Government as reflected in the letter dated 30.03.2009. It is further submitted that as such communication dated 16.03.2007 is further modified vide communication dated 30.03.2009 and decision of the State Government is also binding to the Agricultural Universities. Therefore, the action of the respondent" Agricultural Universities in filling up the post of Assistant Professor from Agriculture Officers cannot be said to be illegal and contrary to the Act. By making above submission, it is requested to dismiss present petitions. No other submissions have been made. 5. Therefore, the action of the respondent" Agricultural Universities in filling up the post of Assistant Professor from Agriculture Officers cannot be said to be illegal and contrary to the Act. By making above submission, it is requested to dismiss present petitions. No other submissions have been made. 5. Mr. D.G. Chauhan, learned Advocate appearing on behalf of respondent "Agricultural University has submitted that respondent " Agricultural University has taken decision to fill up the post of Assistant Professor by way of promotion considering communication the Agricultural Department dated 16.03.2007 and 30.03.2009 as Agricultural University is bound to obey terms and conditions of the State Government. 6. Mr. Pranav Dave, learned AGP appearing on behalf of the State Government has submitted that in view of various representations of Vice Chancellor of respective four Agricultural Universities to regularise promotion to the post of Assistant Professor made in the year 1990-1991 a conscious decision has been taken by the State Government to regularise promotion to the post of Assistant Professor made in the year 1990-1991 and permitting Agricultural Universities to fill up the post of Assistant Professor from the post of Agriculture Officers. 7. Heard the learned Advocates appearing on behalf of the respective parties. 8. At the outset it is required to be noted that vide Government Resolution dated 20.03.1989 while accepting recommendations of ICAR with respect to revision of pay scales of teachers in Agricultural Universities, as per Annendix I, recruitment to the post of Assistant Professors, Associate Professors and Professors and its equivalent in the Gujarat Agricultural Universities shall be on the basis of merit through All India advertisement and selection. It is further provided that Assistant Professors who fulfill the criteria prescribed in this scheme will be eligible for promotion to the post of Associate Professors. Thus as per Government Resolution dated 20.03.1989 post of Assistant Professors is required to be filled in on the basis of merit through All India advertisement and selection i.e. by direct recruitment only. It is to be noted that said Resolution has been issued under the signature of Under Secretary to Government of Gujarat, Agriculture and Rural Development Department by order and in the name of Governor of Gujarat. Concerned respondents are relying upon letter/communication dated 16.03.2007 issued by one Section Officer of the Agriculture Department providing for filling up post of Assistant Professor by way of promotion from Agriculture Officers. Concerned respondents are relying upon letter/communication dated 16.03.2007 issued by one Section Officer of the Agriculture Department providing for filling up post of Assistant Professor by way of promotion from Agriculture Officers. Said communication dated 16.03.2007 is further modified vide communication dated 30.03.2009. Therefore, the short question posed for consideration of this Court is whether subsequent communication dated 16.03.2007 issued by Section Officer of Agriculture Department, State Government, can nullify earlier Government Resolution dated 20.03.1989 which has been issued by order and in the name of Governor of Gujarat. Mr. Pujara, learned Advocate appearing on behalf of the private respondents has heavily relied upon Rule 13 of Gujarat Government Rules of Business, 1984 by submitting that every order and instrument of the Government of the State shall be signed either by a Secretary, an Additional Secretary, a Special Secretary, a Joint Secretary, a Deputy Secretary, a Under Secretary, an Assistant Secretary or a Section Officer or by such other Officer as may be specially empowered in that behalf by the Government and such signature shall be deemed to be the proper authentication of such order or instrument. Therefore, relying upon rule 13 of aforesaid rules it is submitted that communication dated 16.03.2007 and 30.03.2009 issued under the signature of Section Officer can be said to be decision of the State Government as provided under Rule 13 of the aforesaid Rules. Aforesaid submission cannot be accepted. As per Rule 12 of aforesaid Rules all orders or instruments made or executed by or on behalf of the Government of the State shall be expressed to be made by or by order of or executed in the name of Governor. Therefore, whenever Resolution is issued and any order or instrument is made or executed by order and in the name of Governor of Gujarat, then and then, it can be said to be decision of the State Government, otherwise any other decision/order issued by Section Officer or other Officer of particular Department can be said to decision of particular Department and/or decision of particular Officer under whose signature said order/instrument has been issued. Any decision/Government Resolution issued by the State Government by order and in the name of Governor of Gujarat shall override any other instrument or order issued under the signature of particular Officer, may be, Under Secretary and/or Section Officer of particular Department. Any decision/Government Resolution issued by the State Government by order and in the name of Governor of Gujarat shall override any other instrument or order issued under the signature of particular Officer, may be, Under Secretary and/or Section Officer of particular Department. In the present case, Government Resolution dated 20.03.1989 providing for filling up post of Assistant Professors only by way of direct recruitment is issued under the signature of Under Secretary, Government of Gujarat, Agriculture and Rural Development Department by order and in the name of Governor of Gujarat, whereas communication / letter dated 16.03.2007 and 30.03.2009 have been issued under the signature of Section Officer of Agriculture and Rural Development Department, which cannot be said to be decision of State Government, but at the most it can be said to decision of particular Officer of particular Department. Under the circumstances, so long as Government Resolution dated 20.03.1989 is not modified and/or superseded and/or substituted by another Government Resolution, post of Assistant Professors is required to be filled in only by way of direct recruitment as provided in Rule 6 of Appendix - I of Government Resolution dated 20.03.1989. Any other instrument/communication/ letter or decision cannot nullify earlier Government Resolution which has been issued by order and in the name of Governor of Gujarat. Under the circumstances, communication/letter dated 16.03.2007 further modified vide letter dated 30.03.2009 cannot override Government Resolution dated 20.03.1989. In view of above, communication/letter dated 16.03.2007 and 30.03.2009 are absolutely illegal and contrary to Government Resolution dated 20.03.1989 which deserves to be quashed and set aside. 9. It is also required to be noted at this stage that despite Government Resolution dated 20.03.1989, Agricultural Universities filled in post of Assistant Professors by way of promotion from the post of Agriculture Officer in the year 1990-1991, however, subsequently Gujarat Agriculture University vide Resolution dated 04.05.1993 deleted provision of promotion to the cadre of Assistant Professor. The question was with respect to regularisation of those Agriculture Officer who were promoted to the post of Assistant Professor in the year 1990-1991 which were contrary to Government Resolution dated 20.03.1989 and Vice Chancellor of respective four Agricultural Universities made recommendations to the State Government to regularise those promotions and considering the same, communication dated 16.03.2007 came to be issued by the Section Officer of the Agriculture Department. It is to be noted that even promotions made in the year 1990 " 1991 to the post of Assistant Professors could not have been made as same were contrary to the Government Resolution dated 20.03.1989. However, as same is not subject matter of present petition, this Court is not expressing any opinion with respect to the same. However, the fact remains that Government Resolution dated 20.03.1989 provides for filling up post of Assistant Professors only by way of direct recruitment and not only that but even Gujarat University has then passed Resolution dated 04.05.1993 deleting provision of promotion to the cadre of Assistant Professor. Thus, post of Assistant Professors is required to be filled in only by way of direct recruitment and cannot be filled in by way of promotion so long as Government Resolution dated 20.03.1989 stands and/or not modified and/or not substituted. 10. Now so far as the contention on behalf of Mr. Pujara, learned Advocate appearing on behalf of private respondents who are in favour of promotion to the post of Assistant Professors from the post of Agriculture Officers that other three Agriculture Universities have already implemented communication/letter dated 16.03.2007 and have filled in post of Assistant Professors by way of promotion and when communication dated 16.03.2007 has been implemented, is concerned and to dismiss present petition is concerned, it is to be noted that merely because other Universities have implemented the same without any challenge and if ultimately if is found that communication/letter dated 16.03.2007 is illegal and contrary to Government Resolution dated 20.03.1989, same is no ground to dismiss present petitions and to put seal on the said promotion, which can be said to be contrary to Government Resolution dated 20.03.1989. Other Universities might have implemented illegally. There cannot be any negative discrimination. 11. Other Universities might have implemented illegally. There cannot be any negative discrimination. 11. It is also required that in earlier petition being Special Civil Application No.13670 of 2007 it was the specific case on behalf of the respondent " Agriculture University that the petitioners have no legal much less fundamental right to claim promotion from the post of Agricultural Officer to the post of Assistant Professor as a matter of right; there is no provision under the existing rules to grant promotion from the post of Agricultural Officer to the post of Assistant Professor as per qualification prescribed by the ICAR/UGC; the service conditions of the petitioners and other employees of teaching staff are governed under the Rules and Regulations of the University subject to other Rules prescribed by the ICAR/UGC with the permission of the State Government. It was also the case on behalf of the respondent "University in the said Special Civil Application that as per Government Resolution dated 20.03.1989, post of Assistant Professor, Associate Professor and Professor cadres were to be filled up only by direct selection. Subsequently, vide Resolution dated 04.05.1993 the provision for promotion under statute 40 in the cadre of Assistant Professor was cancelled. Therefore, the University Notification dated 14.10.1986 and 07.03.1987 do not exist. Thus, it was specific stand of the Agricultural University that post of Assistant Professor is to be filled in only by way of direct recruitment and earlier Notification dated 14.10.1986 and 07.03.1987 do not exist. Therefore, the contention on behalf of private respondents i.e. Agriculture Officers claiming promotion on the basis of earlier Notification dated 14.10.1986 and 07.03.1987 cannot be accepted. 12. Sum and substance of aforesaid discussion is that Government Resolution dated 20.03.1989 which provides that recruitment to the post of Assistant Professor in Gujarat Agricultural Universities shall be on the basis of merit through All India advertisement and selection, which has been issued by order and in the name of Governor of Gujarat, shall override any other decision/communication and/or decision of particular Department i.e. in the present case communication dated 16.03.2007. Therefore, any decision/order contrary to Government Resolution dated 20.03.1989 unless it is modified and/or substituted and/or superseded by another Government Resolution issued by order and in the name of Governor of Gujarat deserves to be quashed and set aside as said decision cannot nullify resolution issued by order and in the name of Governor of Gujarat. Therefore, any decision/order contrary to Government Resolution dated 20.03.1989 unless it is modified and/or substituted and/or superseded by another Government Resolution issued by order and in the name of Governor of Gujarat deserves to be quashed and set aside as said decision cannot nullify resolution issued by order and in the name of Governor of Gujarat. Under the circumstances, letter/communication dated 16.03.2007 further modified vide letter dated 30.03.2009 providing for filling up post of Assistant Professors by way of promotion from Agriculture Officer deserves to be quashed and set aside as same is in direct conflict with Government Resolution dated 20.03.1989 and contrary to Government Resolution dated 20.03.1989. 13. Under the circumstances and for the reasons stated above, all the petitions succeed. Impugned letter / communication dated 16.03.2007 issued by Section Officer of Agriculture Department, Government of Gujarat and further modified vide letter dated 30.03.2009 are hereby quashed and set aside. It is held that so long as Government Resolution dated 20.03.1989 stands and is not modified and/or superseded and/or substituted by another Government Resolution issued by order and in the name of Governor of Gujarat, post of Assistant Professor in the respondent Agriculture University is to be filled in only by way of direct recruitment i.e. on th basis of merit through All India advertisement and selection only. Therefore, concerned respondent i.e. Sardar Krushi Nagar Dantivada Agriculture University is hereby directed to fill up the post of Assistant Professor only on the basis of merit through All India advertisement and selection. Rule is made absolute in each of the petitions. In the facts and circumstances of the case, there shall be no order as to costs. 14. In view of disposal of Special Civil Applications, no order in Civil Application No.6021 of 2009. Order accordingly