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Gujarat High Court · body

2019 DIGILAW 429 (GUJ)

Sarvoday Kelavani Samaj v. State Of Gujarat

2019-04-16

S.R.BRAHMBHATT

body2019
JUDGMENT : 1. The petitioners, by way of this petition, have approached his Court under Articles 226 and 227 of the Constitution of India, with following prayers : “(a) quashing and setting aside the judgment and order dt 7.12.2004 passed by Gujarat Affiliated Colleges Services Tribunal in Application No. 28 of 2003; (aa) Quashing and setting aside the proceedings of Darkhast Application No. 3 of 2005 pending before the Gujarat Affiliated Colleges Services Tribunal; (b) Directing the respondent no. 1 & 4 to pay salary to the respondent no. 2 for the period from 9.8.1995 to 30.4.1997. (bb) Quashing and setting aside the communication dtd 14.5.1998 at Annexure - H to the petition. (c) Granting such other and further relief and passing such and further orders as may be necessary in the facts of the case. (d.) Awarding cost of this petition” Thus, what is essentially challenge is the order dated 7.12.2004 passed by the Gujarat Affiliated Colleges Tribunal in the proceeding of Application No 28 of 2003, whereby, the Tribunal directed the original respondent nos. 1 and 2 in the proceedings of Application No. 28 of 2003 to pay the salary to the applicant therein for the period for which she has rendered the service in the respondent college from 9.8.1995 to 30.4.1997 within four weeks. The Tribunal has not passed any order against respondent nos. 3 and 4 holding that respondent no.3 and 4 were not in any way liable for the said dues as approval is not given by them. This order dated 7.12.2004 is subject matter of challenge in this petition. 2. The facts in brief, as could be gathered from the memo deserve to be set out as under: 2.1 It is the case of petitioner that respondent no.2 applied for the post of Lecturer in Biochemistry in Shree M & N Virani Science College run by the petitioner Trust pursuant to the advertisement, which was published in the local daily news paper dated 23.9.1994. The respondent no.2 along with 17 other candidates was called for interview on 5.2.1995. Out of 18 candidates, only 8 candidates remained present before the selection committee. 2.2 On 6.2.1995, the petitioners wrote to Saurashtra University seeking approval of selection and appointment of respondent no.2 as lecturer. Accordingly, the university vide letter dated 25.4.1995 gave necessary approval for appointment of respondent no. 2. Out of 18 candidates, only 8 candidates remained present before the selection committee. 2.2 On 6.2.1995, the petitioners wrote to Saurashtra University seeking approval of selection and appointment of respondent no.2 as lecturer. Accordingly, the university vide letter dated 25.4.1995 gave necessary approval for appointment of respondent no. 2. Thereafter, respondent no.2 was given the appointment letter dated 15.7.1995 for the post of lecturer. The petitioners have applied to the State of Gujarat for approval to the selection and appointment of respondent no. 2 but vide letter dated 14.5.1998, the State has refused to grant approval to the respondent no.2. 2.3 Accordingly, the respondent no. 2 filed Application No 28 of 2003 before the Gujarat Affiliated Colleges Services Tribunal, Ahmedabad praying inter-alia for a declaration that she was entitled for the salary of full time lecturer for the period from 9.8.1995 to 30.4.1997 with the revised pay scale with effect from 1.1.1996 and for a direction for payment of the salary. 2.4 The petitioner had filed written statement before the Tribunal. The Tribunal vide order dated 8.8.2003, granted interim order. The petitioners have filed Review Application for staying the operation of the interim order dated 8.8.2003. The respondent Nos. 3 and 5 have filed their written statement on 15.10.2004. The Tribunal vide order dated 7.12.2004 held that the petitioners are liable to pay salary to the respondent no. 2. This order dated 7.12.2004 is assailed by the petitioners in this petition on the grounds mentioned in the memo of petition. 3. At this stage, this Court is of the view that advocate Shri Monal S. Chaglani has requested for adjournment of the matter on behalf of Shri Udit Mehta, learned advocate for the petitioners and he submitted that he is not instructed to conduct the matter. This Court is of the view that in absence of any leave note or sick note, matter of 2005 cannot be permitted to be adjourned in such a way and therefore, having declined to adjourn the matter, the Court has proceeded to decide the matter on merits. 4. The petitioners have assailed the order impugned on the following grounds, which this Court is deeming it proper to reproduce in verbatim, as the Court has decided the matter in absence of counsel. “12. 4. The petitioners have assailed the order impugned on the following grounds, which this Court is deeming it proper to reproduce in verbatim, as the Court has decided the matter in absence of counsel. “12. The petitioners submit that the representative of the State of Gujarat was very much present as a member of the Selection Committee, which duly selected the respondent no. 2 for the post of Lecturer Biochemistry. At the relevant time, the representative of the Government had not raised any objection regarding selection of the respondent no. 2 and therefore the State of Gujarat was estopped from raising the objections at a later date. 13. The petitioners further submit that the Saurashtra University has granted its approval to the selection and appointment of the respondent no.2 for the post of Lecturer Biochemistry vide the letter dated 25.4.1995. The University has also certified that the qualifications possessed by the respondent no. 2 are equivalent to the degree of M.Sc. in Biochemistry vide the remark for appointment dt. 6.2.1995. A true copy of the said remark for appointment is annexed herewith and marked Annexure - G. The petitioners had issued the appointment letter dt 15.7.1995 to the respondent no. 2 only after getting the approval from Saurashtra University. It is submitted that Saurashtra University which is the academic body having approved the selection and appointment of respondent no. 2, it is not open for the State Government to refuse to grant approval to the selection and appointment of respondent no. 2 for the post of lecturer in Biochemistry. 14. The petitioners further submit that in the proceedings of the Selection Committee, the representative of the State of Gujarat had also selected respondent no. 2 and had given her top ranking. The Saurashtra University also granted its approval to the appointment of respondent no. 2. Since the State of Gujarat in many cases grants approval with retrospective effect from the date of appointment, the petitioners were entitled to presume that the State of Gujarat will grant the approval subsequently in view of the approval granted by the Saurashtra University. The petitioners therefore cannot be burdened with the liability of payment of salary to the respondent no.2 for the period from 9.8.1995 to 30.4.1997. 15. The petitioners submit that the dispute about the qualification of the respondent no. The petitioners therefore cannot be burdened with the liability of payment of salary to the respondent no.2 for the period from 9.8.1995 to 30.4.1997. 15. The petitioners submit that the dispute about the qualification of the respondent no. 2 being raised by the State of Gujarat is not at all tenable and is frivolous in view of the remark for appointment dt. 6.2.1995 issued by Saurashtra University. Therefore, the denial of approval to the appointment of respondent no. 2 by the State of Gujarat is thoroughly misconceived and baseless and is not at all justified and therefore, the State of Gujarat cannot escape from the liability of payment of salary to the respondent no. 2 for the period in question. 16. The Tribunal erred in ignoring that the disputes are being belatedly raised by the State of Gujarat. 17. The Tribunal erred in holding that the respondent no. 2 does not fulfill the norms and rules prescribed by the State of Gujarat as well as Saurashtra University. 18. The Tribunal erred in ignoring that Saurashtra University had already granted approval to the appointment of respondent no. 2. 19. The Tribunal erred in ignoring that frivolous disputes are raised by the State of Gujarat for denying approval to the appointment of respondent no. 2. 20. That the judgment and order passed by the Tribunal are even otherwise erroneous and contrary to law.” 5. Ms. Jhaveri, learned AGP has invited this Court’s attention to the affidavit in reply filed by Dr. Rajiv Kumar Gupta, I.A.S, Commissioner of Higher Education, Gujarat State. Following paras are reproduce in verbatim in order to appreciate the controversy in the matter : “para 4: I respectfully say that the respondent no. 2 was appointed as full time Lecturer of Biochemistry in the college of the petitioners vide letter dated 15.7.1995. It is also true that the Selection committee which had selected the respondent no. 2 pursuant to the interview held on 5.2.1995 for the aforesaid post had, the representative of the State Government as its Member. However, the said Member was only supposed to verify the process of selection which was to be carried out as per Rules of the Department as well as the norms of the University. 2 pursuant to the interview held on 5.2.1995 for the aforesaid post had, the representative of the State Government as its Member. However, the said Member was only supposed to verify the process of selection which was to be carried out as per Rules of the Department as well as the norms of the University. In view of this, at the time of selection, the representative of the State Government was not to delve into the merits of the respondent no.2 and even otherwise, the representative of the State Government had nothing to do with the subject of Biochemistry. In that view of the matter, the selection of the respondent no. 2 as mentioned hereinabove does not automatically become legal proprio vigore, if the same is otherwise inherently illegal. It is also true that the Saurashtra University gave approval for the appointment of respondent no.2 as Lecturer of Biochemistry vide letter dated 25.4.1995, which appears to be based upon a letter containing ‘remark for appointment’ dated 6.2.1995, signed by Dr. A.R. Parikh for the Saurashtra University certifying that the respondent no.2 had completed the Postgraduate course in Medical Biochemistry of 3½ years duration with theory, dissertation and that the syllabus thereof is equivalent to the M.Sc. Syllabus of Saurashtra University. On a bare perusal of the said remark as contained in the communication dated 6.2.1995, it becomes clear that the certificate is not borne out from the said certificate. As per the information available with the State Government said Shri A.R. Parikh, is the Head of the Chemistry Department in the Saurashtra University, who had issued the said communication dated 6.2.1995 containing ‘Remark for Appointment’ immediately after the holding of the interview on 5.2.1995 for the post of Lecturer of Biochemistry in the college of the petitioners. 5. Apart from what is mentioned hereinabove, it is wroth nothing that the subjects selected by the Page 8 respondent no. 2 in graduation were other than Biochemistry and that the said subjects were Chemistry, Botany and Zoology, which have nothing to do with the subject of Biochemistry. Thus, it is very clear that the respondent no.2 is not a graduate in the subject of Biochemistry. Under these circumstances, I respectfully say that the State Government was right in writing the letter dated 14.5.1998 refusing to grant approval for the selection and appointment of respondent no. Thus, it is very clear that the respondent no.2 is not a graduate in the subject of Biochemistry. Under these circumstances, I respectfully say that the State Government was right in writing the letter dated 14.5.1998 refusing to grant approval for the selection and appointment of respondent no. 2 because the said selection is irregular wherein the salary of the respondent no.2 is not eligible for the purpose of grant. 6. I further respectfully say that as averred in the reply filed on behalf of the respondents No. 1 and 4 before the Gujarat Affiliated Colleges Services Tribunal, it was categorically stated that as required by the Saurashtra University Ordinance 145-B, only the candidate who has cleared B.Sc. as well as M.Sc. in one particular subject is eligible to be appointment as Lecturer in that particular faculty. So far as the respondent no. 2 is concerned, as aforesaid, she has obtained B.Sc Degree in the subjects Chemistry, Botany and Zoology and not in Biochemistry. It is respectfully stated that the said subjects themselves make the respondent no. 2 ineligible for appointment as Lecturer of Biochemistry. Annexed hereto and marked as Annexure - I is the relevant extract of the said Ordinance 145-B. It is also worth mentioning that the respondent no. 2 has passed M.Sc Part-I in the year 1987, whereas, the true copy of the mark-sheet shows the date 22.2.1992. Annexed hereto and marked as Annexure - II is a copy of said mark-sheet. It is also pertinent to mention that the respondent no. 2 has not produced the mark-sheet of M.Sc Part-II and has merely produced the Certificate issued by the University of Rajasthan. It is respectfully stated that the aforesaid certificate raised certain doubts inasmuch as the certificate produced is dated 15.7.1992, whereas the same has been indicated to have been issued on 7.10.1996 while the examination was given in the year 1989. Apart from this, it is further worth noting that at the tip of the mark-sheet ‘M.Sc (Medicine) Part-I’ is printed while ‘Biochemistry’ is in hand-writing. Over and above, it is curious to note that while the respondent no. 2 was appointed as Lecturer in the year 1995, the certificate was issued on 7.10.1996, which, as aforesaid, gives credence to the needle of suspicion as to the educational qualification of the respondent no.2 at the time of interview and appointment. Over and above, it is curious to note that while the respondent no. 2 was appointed as Lecturer in the year 1995, the certificate was issued on 7.10.1996, which, as aforesaid, gives credence to the needle of suspicion as to the educational qualification of the respondent no.2 at the time of interview and appointment. Annexed hereto and marked as Annexure - III is a copy of the said Certificate issued by the University of Rajasthan. I further respectfully say that vide letter dated 6.2.1996, the petitioner no.2 was desired to have certain information in the above connection by my office including the information relating to original mark-sheet issued to the respondent no. 2 in respect of M.Sc examination, etc. A copy of the said letter which is self-explanatory is annexed hereto marked as Annexure - IV. 7. I further state that under the above referred circumstances merely because the representative of the Government did not raise any objection regarding selection of the respondent no. 2, the State Government is not estopped from raising the said objection at a later date by refusing to grant approval more particularly when the selection of the respondent no. 2 has been inherently illegal. In that view of the matter, the judgment and order dated 7.12.2004 passed by the Gujarat Affiliated Colleges Services Tribunal, Ahmedabad in Application No. 27 of 2003 holding inter-alia that the petitioners are liable to pay the salary of the respondent no. 2 and that respondent nos No. 1 and 4 are not responsible for the payment of the salary.’ 6. Thus, from the aforesaid, it becomes clear that there was no lacuna in the selection procedure and therefore, mere mentioning that State is also liable for the same, is lacking any credence to selection procedure. 7. The Tribunal has also elaborately discussed in the decision impugned as under : “.......The certificate of the applicant, the approval was not given to the appointment of the applicant by the respondent no. 5 as she has not covered the norms prescribed under the resolution of the Government dated 14.9.1988 and the appointment of the applicant was approved as a special case, but the applicant was not qualified person, so the appointment of the applicant was not approved by the respondent no. 5 and written a letter to the respondent college dated 14.5.1998. 5 as she has not covered the norms prescribed under the resolution of the Government dated 14.9.1988 and the appointment of the applicant was approved as a special case, but the applicant was not qualified person, so the appointment of the applicant was not approved by the respondent no. 5 and written a letter to the respondent college dated 14.5.1998. It is also submitted in these remarks by the respondent no.5 that for the above mentioned period, the applicant has served in the respondent College, but her appointment was not approved by the respondent no. 5, so in view of above, it is the responsibility of the respondent nos. 1 and 2 regarding payment of salary to the applicant and not of the respondent no. 5 as her appointment is not approved by the respondent no. 5...... …...It is also observed by the Tribunal that after hearing to parties, direction was given by Tribunal to the respondent no. 5 to verify the record and to come with all the documents, so direction can be given to the authorities for the salary of the applicant. This order was passed by the Tribunal dated 28.6.2000. Pursuant to this, on 15.10.2004, the respondent nos. 3 and 5 have submitted an additional reply to the remarks, whereby, it is precisely mentioned by the respondent no.3 and 5 that in this case the applicant is not possessing the requisite qualifications to be appointed as full time Lecturer in the subject of Biochemistry in the respondent college as she has passed B.Sc. Part I, Agra University 1983, B.Sc. Part-II Agra University, 1984 and passed the M.Sc. Examination (Medicines) in subject of Biochemistry. So, she has not fulfilled the norms and rules prescribed by the Government as well as the Saurashtra University. So in view of above, the appointment of the applicant is not considered for the purpose of grant and the applicant is not entitled to be appointed as full time Lecturer in the subject of Biochemistry considering her qualifications. So, in view of above, I hereby give direction to the Respondent no. 1 and 2 to pay the salary to the applicant for the period for which she has rendered the service in the respondent college from 9.81995 to 30.4.1997 within four weeks after the receipt of this order and I hereby do not feel it proper to give any direction to the respondent no. 1 and 2 to pay the salary to the applicant for the period for which she has rendered the service in the respondent college from 9.81995 to 30.4.1997 within four weeks after the receipt of this order and I hereby do not feel it proper to give any direction to the respondent no. 3 and 5 as they are not liable for the said dues as approval is not given by them. The respondents No. 1 and 2 have appointed the applicant and she has served I the respondent college, so it is the responsibility of the respondent no. 1 and 2 to pay the salary to the applicant and not of the respondent no. 3 and 5. In view of above direction, the matter stands disposed of.” 8. In view of aforesaid, this Court is of the view that the Tribunal has elaborately dealt with the matter on merits, as could be seen from the order, which in my view, do not call for any interference. 9. Hence, in the result, the petition fails and is hereby rejected. Rule discharged. Interim relief, if any, stands vacated. No costs.