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2017 DIGILAW 148 (GUJ)

Gujarat University v. Dalsukhbhai M. Vaghela

2017-01-20

ALPESH Y.KOGJE

body2017
JUDGMENT : Alpesh Y. Kogje, J. 1. This petition under Article 227 of the Constitution of India filed by the petitioner University challenging the judgment dated 24.06.2004 passed by the Gujarat Universities Services Tribunal in Application No. 49 of 2002. Earlier this Court has recorded an order dated 22.12.2016 and in the midst of the dictation, it was mentioned by the learned advocate appearing for the respondent about the sad demise in her family. As a result of which, the request for adjournment was granted, and thereafter, the matter was adjourned on two occasions, at the requests of the learned advocate for the respondent. 2. Heard learned Senior Advocate Shri Shelat with Mrs. V.D. Nanavati for the petitioner and Ms. Nayana V. Panchal, learned advocate for the respondent. 3. The facts necessary for disposal of this petition are as under:- "3.1. The respondent was employed with the petitioner University as a Sweeper w.e.f. 08.11.1976. The respondent had represented the University that as the employees of Class-IV are being promoted to the post of Clerk, the respondent may also be treated accordingly and may also be given promotion to the post of Clerk. 3.2 As the representations made by the respondent from time to time was responded by the petitioner-University vide their communication dated 29.09.1989 declining the request made in such representations, yet the respondent persisted with the making of similar representations and ultimately by communication dated 29.09.1989 and 25.03.1992 informed that the claim of the respondent cannot be entertained as he lacks eligibility for promotion. The eligibility was fixed under the Resolution No. 108 dated 23.06.1984. 3.3. As against this, the respondent filed an Application being No. 49/2002 before the learned Tribunal praying, inter-alia, for his application being considered and the petitioner university be directed to promote the petitioner to the post of Clerk. 3.4. The learned Tribunal vide its oral judgment dated 24.06.2004 allowed the application, whereby, the Resolution No. 108 dated 23.06.1984 of the University was quashed declaring the same to be arbitrary, unjustified and contrary to the Constitution of India and further directing the petitioner university to consider and give promotion to the respondent w.e.f. 17.03.1989, which being the first date of the representation." 4. Shri Shelat, learned Senior Advocate submits that, the Executive Council under Section 20 (1) (XXXVIII) of the Gujarat Universities Act which prescribe the service conditions and Section 3 (a) of Section 20 (1) (XXXVIII) of the Act mandate the approval of the State Government in relation to the conditions of service of the employees of the staff of the University. 4.1. According to Shri Shelat, the Resolution No. 108 dated 23.06.1984 with a view to give the benefit to the persons who have worked earlier in the lower cadre for promotion to the higher cadre, however, eligibility was fixed, that the employee in Class-IV having passed S.S.C. examination before 1973 was considered to be eligible. In the instant case, indisputably, the respondent has not passed S.S.C. examination prior to 1973, and hence, the respondent having not met with the eligibility criteria, the representation has rightly turn-down. 4.2. Shri Shelat also raised contention with regard to the jurisdiction of the learned Tribunal, in so far as the decision of the Tribunal to quash the Resolution No. 108. He drew the attention of Section 7 of the Gujarat Universities Services Tribunal Act, 1983 pertaining to jurisdiction of the Tribunal and Section 8 which pertains to the disputes to be decided by the Tribunal. Considering these, he would submit that, the Tribunal had exceeded its jurisdiction in quashing the Resolution and consequently granting the benefit of promotion to the respondent. 4.3. He also submits that, the decision of the Tribunal to quash the Resolution was not even the prayer made by the respondent before the Tribunal and in absence of such prayer and the grounds to substantiate such prayer, the Tribunal ought not to have quashed the Resolution. He also submits that, as a matter of fact, the Resolution which the Tribunal has proceeded to quash, is a Resolution which in fact is for the benefit of employees serving in Class-IV who were seeking promotion to Class-III and quashing of such resolution would amount to closing of door of promotion to all the employees from all times to come, and therefore, the decision of the Tribunal deserves to be interfered with. 4.4. Shri Shelat further contends that the Resolution No. 108 which is passed by the Executive Council will have the strength of a statute, and therefore, once having passed and implemented, the same ought not to have quashed. 4.4. Shri Shelat further contends that the Resolution No. 108 which is passed by the Executive Council will have the strength of a statute, and therefore, once having passed and implemented, the same ought not to have quashed. In the case of Ahmedabad Kelavani Trust v. State reported in (1978) 19 GLR 671, wherein this Court has held that, the Executive Council is empowered to lay down and regulate the salary scales, allowances and conditions of service of the members of the teaching staff and it was not disputed for a moment that guidelines to some extent to provide for some conditions of service because protection or security against termination is covered by the generic expression conditions of service and undoubtedly, the Executive Council can issue Ordinances but there is nothing in the scheme of the whole Act which says that it cannot act except by Ordinances. Thereafter, referring to Section 20, the Court concluded that, democratically set up body unless, compelled by the statute to act in a certain manner, can act by its resolution. The principle is that such resolution must be a resolution by majority and once such resolution is passed, it would bind the people upon whom it has power to impose binding rule of conduct, meaning thereby, the resolution that is passed would carry the strength of a statute. 4.5. He further submits that the University is an authority to prescribe any norms for the purpose of the promotion which it did under resolution. 4.6. Relying upon the judgment of the Hon'ble Apex Court reported in AIR 1994 (SC) 2750 , Shri Shelat contends that it was open for the University to specify any cut-off date and such action on the part of the University could not be termed to be unreasonable or whimsical. 5. As against this, the learned advocate for the respondent submits that the Tribunal was justified in taking the decision in setting aside the Resolution No. 108 which had caused injustice to the respondent, as though he had completed long term of service, he was not given any promotion. 5.1. She submits that injustice is caused to the respondent as other persons who are junior to him have been granted promotion. 5.1. She submits that injustice is caused to the respondent as other persons who are junior to him have been granted promotion. She submits that, on account of inability of the University to produce the Government Resolution, on the basis of which, the Resolution No. 108 was passed by the Executive Council, the very basis of the Resolution No. 108 was not on the record of the Tribunal, the Tribunal was justified in setting aside the Resolution No. 108. 6. Heard, the learned advocate for the respective parties and having gone through the records of the case. The jurisdiction of the Tribunal which is prescribed under Section-7 of the Gujarat Universities Services Tribunal Act, 1983 and other relevant Section being Section 8 of the Act deals with Disputes to be decided by the Tribunal, which reads as under:- "7. Jurisdiction of Tribunal: (1) The Tribunal shall have jurisdiction to entertain and decide disputes referred to in Section 8, all suits and proceedings transferred to it under sub-section (2) of Section 13 an appeals made under sub-section (3) of Section 14. (2) Where any order of dismissal, removal or reduction in rank or otherwise termination of service of a University employee is decided by the Tribunal to be wrong, unlawful or otherwise unjustified, the Tribunal may pass an order directing that the University employee shall be reinstated in service or, as the case may be restored to the rank, which he held immediately before his dismissal, removal reduction in rank or otherwise termination of service by the University and the University shall forthwith comply with such direction. (3) Notwithstanding anything contained in any other law for the time being in force, where the Tribunal has jurisdiction to entertain and decide dispute as aforesaid, no other person, officer or authority shall have jurisdiction to entertain and decide such dispute and any such dispute pending before any person, officer or authority on the appointed day, shall, as soon as may be, be transferred to the Tribunal for its decision." "8. Disputes to be decided by the Tribunal:- Where there is any dispute between the University and any University employee, which is connected with the conditions of service of such University employee, the University or, as the case may be the University employee may make an application to the Tribunal for the decision of the dispute." Section 8 therefore provides for the nature of dispute over which the Tribunal has the jurisdiction to decide. This dispute necessarily must be such which are connected with the conditions of service of the employee of the University. Section -7 confers jurisdiction to the Tribunal to decide the dispute covered under Section-8. Therefore, Section 8 and Section 7 both do not confer any jurisdiction to the Tribunal to take upon itself the task of examining the constitutional validity of a Resolution passed by the executive council of the University. Considering the aforesaid, this Court is of the view that, it was not open for the Tribunal to take upon itself the responsibility of considering whether the Resolution No. 108 was in consonance with the Constitution of India? More particularly, when the constitutional validity of Resolution No. 108 was not the subject matter of the application nor was it raised by the respondent, during the course of proceeding. Therefore, clearly the jurisdiction exercised by the Tribunal in setting aside the Resolution was unwarranted and deserves to be interfered with. 7. The contentions of Shri Shelat, that Resolution No. 108 having been passed by the Executive Council would hold the strength of the statute deserves to be accepted, in view of the judgment of this Court in case of Ahmedabad Kelavani Trust (Supra), wherein, in Para-20, this Court has held as under:- "20……..But even if we do not take up such a technical view of the matter, under Clause (xxxix), the Executive Council is empowered to lay down and regulate the salary scales, allowances and conditions of service of the members of the teaching staff and it was not disputed for a moment that guidelines to some extent do provide for some conditions of service because protection or security against termination is covered by the generic expression conditions of service. Now undoubtedly, the Executive Council can issue Ordinances but there is nothing in the scheme of the whole Act which says that it cannot act except by Ordinances. Now undoubtedly, the Executive Council can issue Ordinances but there is nothing in the scheme of the whole Act which says that it cannot act except by Ordinances. In fact reading each plenum of Section 20 at various stages it had to be conceded that Ordinances need not be enacted. A democratically set up body unless, compelled by the-statute to act in a certain manner, can act by its resolution. The principle is that it must be a majority resolution because that is the will of the democratically elected body. Once it passes a resolution, it is of that body and it would bind the people upon it has power to impose binding ride of conduct prescribed unless it is shown by some other statutory provision that it shall act in prescribed manner and none else. It is true as was sought to be pointed out that when power is given under the statute to do a certain thing in a certain way the thing must be done in that way or not at all (vide Toylor v. Tayhr, (1875) 1. Ch. D. 426). But this postulates that the statute requires a thing to be done in that manner. There is nothing in the scheme of the Gujarat University Act which requires that for very thing to be done by the E.C. there shall be an Ordinance. In fact as pointed out earlier, there were various clauses of Section 20 which consistently point to the fact that in respect of them, no Ordinance need be enacted an yet power conferred by those caused can be exercised by E.C" Therefore, once the Resolution have the strength of the statute, the Tribunal, as discussed in the preceding paras, has exceeded its jurisdiction in quashing such Resolution which requires interference. 8. The impugned decision of petitioner University in not granting promotion to the respondent is on the strength of Resolution No. 108. The Tribunal has not assigned any independent reasoning to set aside such decision, independent of the Resolution No. 108. The only reason appearing in Para-24 is that there is no justification or nexus in non-granting promotion to person who cleared S.S.C. after 1973, as no objective will be achieved. This Court is of the view that it was not open for the Tribunal to go beyond the policy by fixing a parameter for promotion. 9. The only reason appearing in Para-24 is that there is no justification or nexus in non-granting promotion to person who cleared S.S.C. after 1973, as no objective will be achieved. This Court is of the view that it was not open for the Tribunal to go beyond the policy by fixing a parameter for promotion. 9. The University, its employees, its staff necessarily needs to have rules and regulations for regulating the service conditions of its employees and therefore, as is held in the judgment of the Hon'ble Apex Court in case of Union of India v. Sudhir Kumar Jaiswal, reported in AIR (1994) SC 2750, it was open for the University to fix any cut-off date which in the instant case, is fixed at passing of S.S.C. examination prior to 1973, para-4 and 5 of the judgment reads as under:- "4. As to when choice of a cut-off date can be interfered was stated by Holmes, J. in Louisville Gas & E. Co. v. Coleman, (1927) 277 US 32 by stating that if the fixation be "very wide of any reasonable mark" the same can be regarded arbitrary. What was observed by Holmes, J. was cited with approval by a Bench of this Court in Union of India v. Parameswaran Match Works, AIR 1974 SC 2349 in paragraph 10 by also stating that choice of a date cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. It was further pointed out where a point or line has to be, there is no mathematical or logical way of fixing it precisely, and so, the decision of the legislature or its delegate must be accepted unless it can be said that it is very wide of any reasonable mark. 5. The aforesaid decision was cited with approval in D.G. Gouse and Co. v. State of Kerala, AIR 1980 SC 271 ; so also in State of Bihar v. Ramjee Prasad, (1990) 3 SCC 368 : AIR 1990 SC 1300 , to which decision we shall have occasion to refer later also." 10. 5. The aforesaid decision was cited with approval in D.G. Gouse and Co. v. State of Kerala, AIR 1980 SC 271 ; so also in State of Bihar v. Ramjee Prasad, (1990) 3 SCC 368 : AIR 1990 SC 1300 , to which decision we shall have occasion to refer later also." 10. The contentions of the respondent with regard to other co-employees junior to him getting promoted does not deserve any consideration, as it is pointed out on the pleadings that, such co-employees had passed the S.S.C. examination prior to 1973, and hence were eligible as per Resolution No. 108. 11. In view of the aforesaid, the decision of the Tribunal is required to be interfered with. Oral judgment dated 24.06.2004 passed by the Tribunal is quashed and set aside. Rule is made absolute with no order as to costs.