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2021 DIGILAW 609 (GUJ)

MUKESH DHANSUKHRAI MANKAD v. STATE OF GUJARAT

2021-07-22

SANGEETA K.VISHEN

body2021
JUDGMENT : 1. By this petition, inter alia, under Article 226 of the Constitution of India, the petitioner has raised an issue as to whether it is or it is not open to the respondent State Government to pass an order of recovery of alleged excess payment made to the petitioner when the Division Bench of this Court, after examining the issue, held that the mistake committed by the University in not extending the proper designation to the petitioner was rectified by the University as well as holding that the petitioner has been granted appropriate scale of pay. The petitioner is challenging the order dated 13.10.2011 passed by the Deputy Secretary, Education Department and consequential order dated 4.1.2012 passed by the respondent no.3 – Gujarat University, as being illegal, arbitrary, unreasonable, unjust and violative of principles of natural justice. 2. The facts of the case, as culled out from the record, are as under: 2.1 The respondent no.3 – Gujarat University (hereinafter referred to as “the University”), issued an advertisement dated 31.3.1993, inviting applications for filling up of different posts in the University including the post of Personal Secretary to the Vice-Chancellor. The advertisement had also prescribed pay scales for the respective posts and for the post of Personal Secretary to the Vice-Chancellor, the pay scale prescribed was Rs.2000–3200. Pursuant to the said advertisement, the petitioner applied for the post of Personal Secretary to the Vice-Chancellor and after completing the whole procedure, the petitioner was selected for the said post. Accordingly, the selection of the petitioner was placed before the Executive Council of the University and the Executive Council in turn, in its meeting held on 8.1.1994 approved the selection of the petitioner to the post of Personal Secretary to the Vice- Chancellor. The petitioner thereafter came to be appointed to the said post vide order dated 11.1.1994 in the pay scale of Rs.2000–3200. 2.2 After joining the duty with the University, the petitioner came to know that the post of Private Secretary to the Vice- Chancellor, carries the pay scale of Rs.2200–4000, and the University, inadvertently, had prescribed the pay scale of Rs.2000–3200 in the advertisement. The petitioner, therefore, made a representation dated 2.3.1995 to the Vice-Chancellor seeking the pay scale of Rs.2200-4000; pointing out that, in past, predecessors in office were drawing the pay scale of Rs.2200–4000. The petitioner, therefore, made a representation dated 2.3.1995 to the Vice-Chancellor seeking the pay scale of Rs.2200-4000; pointing out that, in past, predecessors in office were drawing the pay scale of Rs.2200–4000. It was also pointed out that the Executive Council of the University, vide resolution No.18 passed in the meeting held on 11/12.4.1970, had resolved to create one more post of Assistant Registrar in addition to existing three posts of Assistant Registrar and further resolved to allott it to the office Vice-Chancellor as Personal Secretary to the Vice- Chancellor. The post of Personal Assistant to Vice-Chancellor was decided to be cancelled. A reminder letter was also sent to the University. 2.3 The University having found some substance in the representation of the petitioner, constituted a three members Committee consisting of Professor Y.D.Vyas, Shri Narhari Amin and Shri B.J. Pandya to examine the issue and submit the report. The Committee, in turn, after examining the issue, submitted its report dated 8.12.2000, observing that the demand of the petitioner is reasonable and that he should be paid salary in the pay scale which was being paid to the predecessors of the petitioner. Since the University wanted an expert opinion, the issue was once again referred to a Committee consisting of four members which also examined the issue and submitted its report dated 12.9.2001 and agreed with the report of the earlier Committee, recommending that the petitioner should be paid salary in the pay scale of Rs. 8000-13500 instead of Rs. 6000-10500 with effect from 20.1.1994. 2.4 The University placed the report before the Executive Council of the University and the Executive Council in its meeting held on 12.9.2001, resolved to place the petitioner in the pay scale of Rs.8000–13,500 on certain terms and conditions. Further, the application of the petitioner was placed before the Executive Council on 29.10.2001 and it resolved to re-designate the post of the petitioner as “Assistant Registrar-cum- Private Secretary to the Vice-Chancellor. Based on the resolution passed by the Executive Council on 29.10.2001, the Registrar of the University, passed an order dated 2.11.2001, whereby the post of the petitioner was re-designated as Assistant Registrar-cum-Private Secretary to the Vice- Chancellor and placed the petitioner in the pay scale of Rs.8000-13500 with effect from 20.1.1994. Therefore, according to the petitioner, the University rectified the mistake which had crept-in while publishing the advertisement. Therefore, according to the petitioner, the University rectified the mistake which had crept-in while publishing the advertisement. 2.5 Somewhere in the year 2003, a senate member and President of Gujarat University General Employees Union, filed a Public Interest Litigation before this Court being Special Civil Application No.4429 of 2003 praying for writ of certiorari, quo warranto and direction for setting aside the appointment of the petitioner as Private Secretary to Vice-Chancellor–cum- Assistant Registrar. This court, vide order dated 13.10.2003, dismissed the Public Interest Litigation. 2.6 On implementation of the sixth pay commission, the petitioner was not given the appropriate pay scale, as the pay scale of the petitioner was wrongly fixed in the pay band of Rs.9300–34,800 with grade pay of Rs.4200/– instead of pay band of Rs.15,600–39,100 with grade pay of Rs.5400/–. The petitioner, therefore, made a representation to the University; however, the representation of the petitioner fell on deaf ears. The University, according to the petitioner, instead of rectifying the mistake, passed two orders dated 29.11.2011 and 30.11.2011 whereby, the designation which was conferred to the petitioner, that is, the designation of Private Secretary to the Vice-Chancellor–cum–Assistant Registrar was cancelled and vide order dated 30.11.2011, the petitioner was posted in the Information Centre for which the petitioner was never appointed. 2.7 The petitioner challenged the said order before the Tribunal and during the pendency of the proceedings, the University tendered its reply, when, the order dated 13.10.2011 passed by the State Government, was placed on record. It is the case of the petitioner that on 4.1.2012, the University had served the order wherein there is a reference of the order dated 13.10.2011 passed by the State Government seeking recovery of an amount of Rs.4,88,553/–. Being aggrieved, the petitioner has preferred the captioned writ petition with the aforementioned prayers. 2.8 The State Government through its Under Secretary, Education Department, has filed reply. It has been averred that the appointment of the petitioner as Assistant Registrar is against the law. Because of the complaint received from the Vigilance Commission, as regards illegal appointment of the petitioner, the authority appointed an Enquiry Committee which, in turn, had concluded that the appointment of the petitioner as Private Secretary to Vice-Chancellor is against the rules. It has been averred that the appointment of the petitioner as Assistant Registrar is against the law. Because of the complaint received from the Vigilance Commission, as regards illegal appointment of the petitioner, the authority appointed an Enquiry Committee which, in turn, had concluded that the appointment of the petitioner as Private Secretary to Vice-Chancellor is against the rules. It is also stated that the petitioner does not possess the requisite qualification for being appointed as Assistant Registrar of the University and that the petitioner possessed the qualification merely of a Stenographer and therefore, he was not eligible for being appointed to the post of Assistant Registrar. The affidavit further proceeds by stating that prior to grant of promotion, the University had resolved to take bond from the petitioner to return the amount of salary in connection to the new post, if need arise. Therefore, the petitioner is obligated to refund the excess amount of salary, which has been paid to him. It has also been stated that the appointment of the petitioner as Assistant Registrar was without obtaining any permission from the Education Department; however, the University is favoring the appointment. It is also urged that the reply filed by the University may not be considered as the University is supporting the illegal appointment of the petitioner. While concluding, it is stated that petition being devoid of merits may be dismissed in limine and with cost. 2.9 The University has also filed replies wherein, it has been stated that in compliance of the order dated 13.10.2011, the University, has passed the order dated 29.11.2011, quashing and setting aside the grant of pay scale of Assistant Registrar with effect from 11.9.2001 as the petitioner was not qualified for the said post and was accordingly, transferred to the Information Centre. It further states that the petitioner was appointed as Private Secretary to the Vice-Chancellor in the scale of Rs.2000-3200 and Rs.6500-10,400 and the Executive Council by its resolution dated 12.9.2001 placed him in the scale of Rs.8000–13,500; the post of the Private Secretary to the Vice-Chancellor being equivalent to the post of Assistant Registrar. Accordingly, the petitioner was paid salary in the scale of Assistant Registrar and in the meeting held on 29.10.2001, the post of Private Secretary to the Vice- Chancellor was designated as Assistant Registrar–cum–Private Secretary to Vice-Chancellor. Accordingly, the petitioner was paid salary in the scale of Assistant Registrar and in the meeting held on 29.10.2001, the post of Private Secretary to the Vice- Chancellor was designated as Assistant Registrar–cum–Private Secretary to Vice-Chancellor. 2.10 It has been further stated by the University that on 13.10.2011, the State Government directed recovery of all the amount paid to him in the scale of Assistant Registrar as the petitioner was not possessing qualification for being appointed to the post of Assistant Registrar and was having the qualification for being appointed as a Stenographer. In view of the order dated 13.10.2011, University has taken a stand that it was obliged to issue necessary directions complying with the directions of the State Government and accordingly, the pay scale of the petitioner was reduced to Rs.6500 –10,400 from Rs.8000–13,500, that is, the scale of Assistant Registrar. 2.11 In another affidavit filed by the University, while narrating additional facts, it is stated that pursuant to the advertisement and owing to the recommendation of the Selection Committee, the petitioner was issued a letter of appointment as Personal Secretary to Vice-Chancellor. Representation was made by the petitioner drawing the attention of the Vice-Chancellor to the resolution dated 11.4.1970 which provided that one Personal Secretary should be allocated to the office of the Vice- Chancellor with the designation of Assistant Registrar–cum– Personal Secretary to the Vice-Chancellor, in the pay scale of Rs.2200–4000. It further states that earlier Shri B.M. Vaishya was in-charge Assistant Registrar as he was Personal Secretary to the Vice-Chancellor and was succeeded by other two, however, on their retirements, the petitioner was not given the designation of Assistant Registrar–cum–Personal Secretary to the Vice-Chancellor. 2.11 Therefore, the Executive Council of the University, in its meeting held on 29.10.2001, re-designated the petitioner as Assistant Registrar–cum–Personal Secretary to the Vice- Chancellor, rectifying the mistake in the meeting held on 12.9.2001 giving the grade of Rs.8000–275–13,500 and designating the petitioner as Assistant Registrar–cum–Personal Secretary to the Vice-Chancellor. The affidavit further states that the State Government issued the directions vide letter dated 13.10.2011, informing and directing the University that since the petitioner is not holding the qualification for the post of Assistant Registrar, recovery of unauthorised payment be made. Accordingly, the University has addressed a communication dated 4.1.2012 directing the recovery of the excess amount paid to the petitioner on his re-designation. Accordingly, the University has addressed a communication dated 4.1.2012 directing the recovery of the excess amount paid to the petitioner on his re-designation. 2.12 The petitioner has filed his rejoinder to the replies filed by the University as well as the State Government. In the rejoinder filed against the reply of the State Government, it has been stated that the stand of the State Government is erroneous for, the post of Personal Assistant to Vice-Chancellor has been abolished in the year 1970 and the University has created the post of Assistant Registrar–cum–Personal Secretary to the Vice-Chancellor vide resolution dated 11/12.4.1970. It further states that earlier the post of Assistant Registrar–cum- Personal Secretary to the Vice-Chancellor had been held by Shri B.M Vaishya, Shri K.G. Shah and Mr. B.T. Pathan in the corresponding scale of the cadre, that is, Rs.8000–275–13,500 and therefore, the petitioner is entitled for the post of Assistant Registrar–cum–Private Secretary to Vice-Chancellor. It is further stated that the said pay scale is already in existence since the year 1970. The rejoinder further states that since the petitioner was inadvertently put in the pay scale of Rs.2000– 3200, the petitioner made a representation which was considered by the Committee and it, after examining every aspect, submitted a report to the University. The University, in its Executive Council meeting, rectified the mistake and accordingly, corresponding scale has been granted to the petitioner. 2.13 While referring to the proceedings being Special Civil Application No.4429 of 2003, it is stated that the University while defending the appointment of the petitioner, has relied upon the reports of the Committees appointed by it. It is only after considering the reply of the University, this Court held that the appointment was proper, and the University had only rectified the mistake by giving proper designation of the post in question by passing necessary resolution. It further states that this Hon’ble Court has categorically held that it is not a case of upgradation or promotion of the post in question, but rectification of mistake committed by the University by giving proper scale and nomenclature of the post. It is therefore, urged by the petitioner that the petition deserves to be allowed and the order dated 13.10.2011 passed by the State Government be quashed and set aside as well as the consequential order passed by the University also be quashed and set aside. 3. Mr. It is therefore, urged by the petitioner that the petition deserves to be allowed and the order dated 13.10.2011 passed by the State Government be quashed and set aside as well as the consequential order passed by the University also be quashed and set aside. 3. Mr. B.T. Rao, learned advocate for the petitioner submitted that the State Government has passed the order dated 13.10.2011 whereby, it has been observed that the appointment of the petitioner as Assistant Registrar is not as per the rules as the petitioner did not possess the requisite qualification of Assistant Registrar, but possessed the qualification of Stenographer and salary has been paid of the Assistant Registrar. It is submitted that the State Government accordingly directed the University to cancel the designation and the pay scale which has been sanctioned to the petitioner with a further direction to the University to recover the salary paid in excess. It is submitted that the order dated 13.10.2011 is passed on an erroneous premise because, the case of the petitioner has never been a case of promotion, but was of giving the petitioner, appropriate designation. Therefore, the very basis of the order under challenge is erroneous and illegal. The State Government believed that no approval has been taken of the State Government while passing the order of promotion in favour of the petitioner, which action would be against the provisions of the University Act. Mr. Rao, learned advocate further submitted that the issue was already raised in the Public Interest Litigation filed before this Hon’ble Court and the said contention has been held to be devoid of merits. It is therefore, submitted that the order dated 13.10.2011 passed by the State Government, is liable to be quashed and set aside, being violative of articles 14 and 16 of the Constitution of India. 3.1 While inviting the attention of this Court to Chapter 26 titled “Gujarat University Employees”, it is submitted that so far as the office of the Vice-Chancellor is concerned, there are two posts namely, Personal Secretary–cum–Assistant Registrar of Vice-Chancellor and Assistant (Type). While referring to page 161 of the compilation, it is submitted that the said two posts carry the pay scales of Rs. 2200–75–2800 EB 100-4000 and Rs.950–20–1150 EB 25–1500 respectively. It is therefore, submitted that undisputedly there is a post of Private Secretary–cum–Assistant Registrar to the Vice-Chancellor with the pay scale of Rs. 2200–4000. While referring to page 161 of the compilation, it is submitted that the said two posts carry the pay scales of Rs. 2200–75–2800 EB 100-4000 and Rs.950–20–1150 EB 25–1500 respectively. It is therefore, submitted that undisputedly there is a post of Private Secretary–cum–Assistant Registrar to the Vice-Chancellor with the pay scale of Rs. 2200–4000. 3.2 It is further submitted that the University had published an advertisement inviting applications for various posts including the post of Personal Secretary to Vice-Chancellor and inadvertently, the pay scale prescribed was Rs.2000–3200. It is further submitted that after completing the whole procedure, the University vide Memorandum dated 11.1.1994, appointed the petitioner in the grade of Rs.2000–3200. In fact, the petitioner ought to have been given the pay scale of Rs.2200– 4000 and therefore, he submitted a representation dated 2.3.1995, inter alia, pointing out that the predecessors of the petitioner, who have served on the post of Private Secretary to the Vice-Chancellor, were given the pay scale of Rs.2200– 4000. It is submitted that to substantiate his claim for the pay scale of Rs.2200–4000, the petitioner forwarded the copy of the resolution No. 18 dated 11/12.7.1970 passed by the Executive Council whereby, the existing three posts of Assistant Registrar were increased to four and the post of Personal Assistant came to be abolished. Thereby, the post of Private Secretary–cum–Assistant Registrar was decided to be spared for the office of the Vice-Chancellor. 3.3 It is submitted that the Vice-Chancellor having found some substance in the request of the petitioner, constituted a Committee consisting of three members to examine the issue and submit its report. The said Committee examined the issue and vide report dated 8.12.2000, opined that the demand of the petitioner is reasonable and should be paid salary in the pay scale, which was paid to the predecessors of the petitioner. It is further submitted that with a view to getting a foolproof opinion, the Vice-Chancellor got the issue determined by another Committee consisting of four members. The said Committee also examined the issue and vide report dated 12.9.2000, agreed with the opinion of the earlier Committee and it also recommended that the petitioner should be paid salary in the pay scale of 2200–3200. The said Committee also examined the issue and vide report dated 12.9.2000, agreed with the opinion of the earlier Committee and it also recommended that the petitioner should be paid salary in the pay scale of 2200–3200. It is next submitted that the report dated 12.9.2000 was placed before the Executive Council, which, in its meeting held on 12.9.2001, resolve to place the petitioner in the pay scale of Rs.8000–13,500, corresponding scale of Rs.2200–3200. It is further submitted that the Executive Council, thereafter, on 29.10.2001, resolved to re-designate the post of the petitioner as Private Secretary– cum–Assistant Registrar to the Vice-Chancellor. It is submitted that it is thereafter, that order dated 2.11.2001 came to be passed by the University re-designating the post of the petitioner as Private Secretary–cum–Assistant Registrar to the Vice-Chancellor. Mr. Rao, learned advocate further submitted that the University only rectified the mistake which had creptin while publishing the advertisement for appointment to the said post and therefore no error was committed by the University in passing the order dated 2.11.2001. 3.4 It is next submitted that in the year 2003, a Public Interest Litigation was filed before this Court challenging the appointment of the petitioner, however, this Hon’ble Court dismissed it. It is further submitted that the very issue of redesignation of the post held by the petitioner was subject matter of the petition and therefore, the issue having already been determined, it was impermissible for the State Government to have passed the order dated 13.10.2011 and more particularly, when it was party to the said proceedings. It is further submitted that it was expected of the State Government to have approved the designation of the petitioner; however, it passed the order dated 13.10.2011 and the University instead of taking up the issue with the State Government, passed two orders dated 29.11.2011 and 30.11.2011, cancelling the designation conferred upon the petitioner as well as posting the petitioner with the Information Centre, for which the petitioner was never appointed. 3.5 It is further submitted that the petitioner being aggrieved by the order dated 29.11.2011 as well as 30.11.2011, preferred an application before the Tribunal and during the pendency of the application, the University produced on record the order dated 13.10.2011 passed by the State Government, it is at this stage, that the petitioner was made aware about the decision. 3.5 It is further submitted that the petitioner being aggrieved by the order dated 29.11.2011 as well as 30.11.2011, preferred an application before the Tribunal and during the pendency of the application, the University produced on record the order dated 13.10.2011 passed by the State Government, it is at this stage, that the petitioner was made aware about the decision. The said order was passed behind the back of the petitioner, without giving any opportunity of hearing and therefore, the order dated 13.10.2011 being in breach of principles of natural justice, is illegal and bad. The order dated 13.10.2011 having been passed in breach of the principles of natural justice, the petition filed by the petitioner, be entertained and the petitioner may not be relegated to avail of the alternative remedy before the Tribunal because, the Apex Court has in catena of judgments carved out contingencies for exercise of discretion under Article 226 of the Constitution of India, despite availability of statutory remedy and action taken in violation of principles of natural justice is one of them. 3.6 It is next submitted that even otherwise, the issues as regards re-designation as well as appointment of the petitioner to the post of Assistant Registrar-cum-Private Secretary to the Vice-Chancellor, have been settled by this Hon’ble Court and when this Court did not find any illegality, there was no occasion or any cause available to the State Government to have directed the University to cancel the re-designation of the petitioner as well as consequential recovery. So far as the aspect of recovery is concerned, it is well within the competence of the authorities to resort to such action, but such action is permissible only if there is a misrepresentation by an employee concerned. However, the record reveals that owing to a mistake on the part of the University, the petitioner came to be appointed in the lower grade of Rs.2000-3200 instead of Rs.2200–4000 and since the University believed that the petitioner has been subjected to injustice, it rectified the mistake by passing corrective orders. It was well within the discretion of the University to have passed the orders correcting the mistake for which no approval was required of the State Government. 3.7 It is therefore, urged that the order dated 13.10.2011 passed by the State Government, is not only against the principles of natural justice, but is tainted with the non-application of mind. It was well within the discretion of the University to have passed the orders correcting the mistake for which no approval was required of the State Government. 3.7 It is therefore, urged that the order dated 13.10.2011 passed by the State Government, is not only against the principles of natural justice, but is tainted with the non-application of mind. It is submitted that it has been observed in the order dated 13.10.2011, that the proposal for upgrading the post of Private Secretary has already been rejected by the Education Department vide order dated 7.9.1998 and therefore, the University could not have passed the order redesignating the post of Private Secretary–cum–Assistant Registrar to the Vice-Chancellor. In fact, the order dated 7.9.1998 passed by the Education Department, had no connection with the decision of the Executive Council redesignating the post because, there the issue was of upgradation of the post whereas, the present issue involved is about the decision of the Executive Council re-designating the post. It is submitted that no error has been committed by the Executive Council in taking such decisions for, vide syndicate resolution dated 11/12.4.1970, one post of Assistant Registrar was increased in addition to already existing three posts of Assistant Registrar, abolishing the post of Personal Secretary. The Assistant Registrar already working with the University was given the work of Private Secretary to the Vice-Chancellor and therefore, the decisions taken by the Committee and the Executive Council, were in the right earnest. It is submitted that the petition deserves to be allowed and the order dated 13.10.2011 be quashed and set aside so also the consequential orders passed by the University. 4. Per contra, Mr. Rohan Shah, learned Assistant Government Pleader submitted that in view of the alternative remedy available to the petitioner, this Court may not entertain the present writ petition. It is submitted that in past, the petitioner had approached the Tribunal, challenging the orders of the University. Similarly, the petitioner could have approached the Tribunal challenging the order dated 13.10.2011 passed by the State Government. Therefore, the present petition may not be entertained on this count alone. It is next submitted that various disputed issues are involved, namely, the qualification of the petitioner, requisite marks, etc. Similarly, the petitioner could have approached the Tribunal challenging the order dated 13.10.2011 passed by the State Government. Therefore, the present petition may not be entertained on this count alone. It is next submitted that various disputed issues are involved, namely, the qualification of the petitioner, requisite marks, etc. and once disputed questions of facts are involved, it would be in the interest of all concerned that the matter is determined by the Tribunal and this Hon’ble Court may not entertain the present writ petition, more particularly, when an alternative efficacious statutory remedy is available to the petitioner. 4.1 It is next submitted that the State Government vide order dated 7.9.1998, rejected the proposal of the University and once there was a rejection by the State Government, the University could not have proceeded to pass the orders of redesignating and re-adjusting the pay scale of the petitioner. It is next submitted that if it was within the realm of the University, the State Government could not have been approached in the year 1998. The University approached the State Government only because final approval of the State Government is must, as provided in the Act and when the State Government had rejected the proposal, the action of the University in extending the benefits of re-designation as well as pay scale has no basis and was against the provisions of the Act. While inviting the attention of this Court to the minutes of meeting dated 12.9.2001 of the Executive Council, it is submitted that vide resolution No.7, the Executive Council redesignated the post of the petitioner as Assistant Registrar with effect from 20.1.1994 and revised the pay scale from Rs.6500–10,500 to 8000–13,500. The said resolution contained a condition, requiring the petitioner to furnish the bond agreeing to refund the amount in case any issue arises and when the State Government has cancelled the redesignation, the petitioner in wake of such bond is obligated to refund the amount. 4.2 It is next submitted that since complaint was received as regards unauthorised appointment of the petitioner, the State Government appointed an Enquiry Committee, which after examining the issue, in depth, concluded that the appointment of the petitioner as Assistant Registrar-cum-Personal Secretary to Vice-Chancellor is against the provisions of the Act. It also opined that the petitioner did not possess the requisite qualification for being appointed as Assistant Registrar-cum- Personal Secretary to Vice-Chancellor. It also opined that the petitioner did not possess the requisite qualification for being appointed as Assistant Registrar-cum- Personal Secretary to Vice-Chancellor. Therefore, creation of the post, the decision of re-designating the post and upgrading the pay scale, was without obtaining the prior approval from the Education Department. Even otherwise, the petitioner was possessing the qualification of Stenographer and therefore, not qualified for being appointed as Assistant Registrar. Since the petitioner did not possess the requisite qualification, the action on the part of the Executive Council or University, was erroneous and therefore, the order dated 13.10.2011, is legal and does not deserve to be interfered with by this Hon’ble Court and the petition may not be entertained for, the same is meritless. 4.3 No other and further submissions are made on behalf of the State Government. 5. Ms. Dhara Shah, learned advocate appearing for the University, at the outset, submitted that the University is an implementing agency. It implemented the order dated 13.10.2011 passed by the State Government. It is further submitted that the State Government had appointed the Committee which gave its report, and the decision was communicated to the University and it, in turn, implemented the same. So far as the communication/order dated 7.9.1998 of the Education Department is concerned, it does not pertain to re-designation, but the same is with respect to upgradation of the post from Assistant Registrar to Deputy Registrar. The University, vide letter 28.5.1998 requested the State Government to upgrade the post as there were no promotional avenues available to the post of Personal Secretary to Vice- Chancellor–cum–Assistant Registrar; however, the State Government rejected the proposal of the University. 5.1 It is next submitted that so far as the appointment is concerned, the same is upheld by this Hon’ble Court in the Public Interest Litigation filed in the year 2003. Similarly, the aspect of pay scale has also been given a quietus by this Hon’ble Court. It is submitted that the issue before this Hon’ble Court was that the post on which the petitioner was appointed, could not have been designated as Assistant Registrar-cum- Personal Secretary to Vice-Chancellor because he was appointed as Personal Assistant. This Court, in para 5 observed that the petitioner was never appointed as Personal Assistant as claimed by the petitioner therein because the memorandum dated 11.1.1994 indicates that he was appointed as Personal Secretary to Vice-Chancellor. This Court, in para 5 observed that the petitioner was never appointed as Personal Assistant as claimed by the petitioner therein because the memorandum dated 11.1.1994 indicates that he was appointed as Personal Secretary to Vice-Chancellor. Therefore, this Court, while referring to the resolution of syndicate dated 11/12.4.1970, observed that in the case of the petitioner, a mistake was committed which was rectified by resolution dated 12.9.2001 and 29.10.2001. Therefore, both the issues, namely appointment and pay scale, have been determined by this Hon’ble Court in the proceedings of public interest litigation. 5.2 While referring to the communication dated 19.11.2005, addressed by the Vice-Chancellor of the University, as well as communication dated 17.7.2006 of the office of the Commissioner of Higher Education, it is submitted that everything was within the knowledge of the State Government; however, State Government did not give any reply. It is urged that this Hon’ble Court may pass an appropriate order. 6. Heard Mr B.T. Rao, learned advocate for the petitioner, Mr. Rohan Shah learned Assistant Government Pleader for the respondent – State and Ms. Dhara Shah, learned advocate for the University and considered the documents and material available on record. 7. The core issue which arises for the consideration of this Court is whether the State Government was right in passing the order dated 13.10.2011 more particularly when the issue of appointment of the petitioner was already given a quietus by this Court in the proceedings being Special Civil Application No. 4429 of 2003. Issue is also as regards the redesignation of the post of Private Secretary to Vice-Chancellor-cum-Assistant Registrar. 8. So far as the issue regarding re-designation is concerned, certain factual aspects are required to be gone into. The Syndicate of the University passed a Resolution dated 11/12.4.1970, creating one more post of Assistant Registrar in addition to already existing three posts of Assistant Registrar. By creation of one more post, the post of the Personal Secretary to the Vice-Chancellor came to be abolished. 9. Indisputably, after the passing of the resolution in the year 1971, Mr. B.M. Vaishya, Assistant Registrar was given the work and designation of Personal Secretary to Vice-Chancellor. Thereafter, Shri K.G. Shah was appointed as Assistant Registrar –cum–Personal Secretary to Vice-Chancellor and Mr. Shah was succeeded by Mr. B.T. Pathan with same designation. It is also not disputed that Mr. 9. Indisputably, after the passing of the resolution in the year 1971, Mr. B.M. Vaishya, Assistant Registrar was given the work and designation of Personal Secretary to Vice-Chancellor. Thereafter, Shri K.G. Shah was appointed as Assistant Registrar –cum–Personal Secretary to Vice-Chancellor and Mr. Shah was succeeded by Mr. B.T. Pathan with same designation. It is also not disputed that Mr. Vaishya was given the pay scale of Rs.700–1300 so also Mr. K.G. Shah. Mr. B.T. Pathan who succeeded on 26.5.1984, was given the corresponding scale of Rs.2200–4000. It is also not disputed that the corresponding scale of Rs.2200–4000, is Rs.8000–13,500. Further, in Chapter 26 (Page 159 of the compilation), provides for the details of employees of the University. Serial no.14, are the details with respect to the office of the Vice-Chancellor containing two posts namely; Personal Secretary-cum-Assistant Registrar to Vice-Chancellor and Assistant (type). The pay scale provided for the post Personal Secretary-cum-Assistant Registrar to the Vice-Chancellor, is Rs.2200–4000. Therefore, there is no dispute that the post of Personal Secretary–cum–Assistant Registrar to the Vice-Chancellor, was carrying the scale of Rs.2200–4000. 10. The University issued an advertisement dated 23.3.1993 inviting applications for various posts mentioned therein including the post of Personal Secretary to Vice-Chancellor with the pay scale of Rs 2000-3200. The petitioner applied pursuant to the advertisement and got duly selected by the University. The University issued a memorandum dated 11.1.1994 appointing the petitioner to the post of Private Secretary to Vice-Chancellor. The petitioner made a representation dated 2.3.1995 to the Vice-Chancellor, inter alia, pointing out that a mistake has crept-in in the advertisement in prescribing the pay scale and the pay for the post of Assistant Registrar-cum- Private Secretary to Vice- Chancellor, is Rs 2200-4000 and not Rs 2000-3200. According to the petitioner, the predecessor of the petitioner was put in the pay scale of Rs.2200–4000, however, owing to the mistake committed by the University, while advertising the post of Private Secretary–cum–Assistant Registrar, the pay scale provided was Rs.2000–3200. The petitioner also requested for rectification of the mistake. 11. The University constituted a Committee and the Committee opined that there has been a mistake crept-in in the advertisement and since the predecessors of the petitioners were paid the pay scale of Rs. 700-1300 and Rs.2200–4000 respectively, the scale of the petitioner may also be rectified. The petitioner also requested for rectification of the mistake. 11. The University constituted a Committee and the Committee opined that there has been a mistake crept-in in the advertisement and since the predecessors of the petitioners were paid the pay scale of Rs. 700-1300 and Rs.2200–4000 respectively, the scale of the petitioner may also be rectified. The University rectified the mistake through its Executive Council in the meetings dated 12.9.2001 and 29.10.2001. Thereafter in the year 2003, a writ petition being Special Civil Application No. 4429 of 2003 came to be filed before this court raising following substantial questions of law:- (i) Whether the appointment of “P.A” as “ P.S. to vice-chancellor- cum- Assistant Registrar’ is in violation of Gujarat University Act 1949 and without any authority of law? (ii) Whether the appointment of “P.A.” as “P.A. to vice-chancellor- cum-Assistant Registrar” without approval of the Government is without authority of law and in violation of provisions of the Gujarat University Act 1949 ? (iii) Whether the appointment “P.A.” as “P.S. to Vice- Chancellor- cum-Assistant Registrar” is against the direction issued by the Education Department of the State of Gujarat?. 12. Shri Arvindbhai S. Shah, that is, the petitioner therein had prayed for writ of Certiorari, Mandamus, Quo Warranto or any other appropriate writ, order or direction for quashing the appointment of P.A. as P.S. to Vice-Chancellor-cum-Assistant Registrar made by the University. The said petition was resisted by the University by filing affidavit-in-reply of the Registrar. The stand of the University was to the following effect. Paragraphs 4.3, 4.4 and 4.5 of the affidavit-in-reply read thus:- “4.3 After the said Resolution was passed by the Syndicate on 11/12-4-1970 Shri B.M. Vaishya, Assistant Registrar was immediately given the work and designation of Personal Secretary to Vice Chancellor also. Thereafter, Shri K.G.Shah was appointed on the place of Shri B.M.Vaishya as Assistant Registrar-cum-Personal Secretary to Vice Chancellor. Shri B.T.Pathan was thereafter appointed with the same designation in place of Shri K.G.Shah and lastly Shri Mukesh D. Mankad was appointed after Shri B.T. Pathan retired from the services. Thereafter, Shri K.G.Shah was appointed on the place of Shri B.M.Vaishya as Assistant Registrar-cum-Personal Secretary to Vice Chancellor. Shri B.T.Pathan was thereafter appointed with the same designation in place of Shri K.G.Shah and lastly Shri Mukesh D. Mankad was appointed after Shri B.T. Pathan retired from the services. Since Shri Mukesh D.Mankad was not given the designation of Assistant Registrar-cum-Personal Secretary to Vice Chancellor on the basis of the resolution passed by the Syndicate on 11/12-4-1970, the said mistake was rectified by the Executive Council at its meetings held on 12/9/2001 and 29/10/2001 whereby Shri Mukesh D. Mankad was given the grade of Rs.8000-275-13500 and he was given the designation of Assistant Registrar-cum-Personal Secretary to Vice Chancellor. .. 4.4 Shri Mukesh D. Mankad is at present working as Assistant Registrar-cum-Personal Secretary to Vice Chancellor in the grade of Rs.8000-275-13500 in view of the Resolutions passed by the Executive Council at its meetings held on 12/9/2001 and 29/10/2001. 4.5 Shri Mukesh D. Mankad had made representation to the then Vice Chancellor to get the grade of Rs.10000-15200. The then Vice Chancellor had written letter to the Additional Chief Secretary, Education Department, Government of Gujarat on 28/5/1988 to grant the said grade to Shri Mukesh D. Mankad for the reasons mentioned therein. The Section Officer, Education Department vide letter dated 7/9/1998 informed the Registrar that the proposal to upgrade Shri Mukesh D. Mankad cannot be considered as per the prevailing rules. The said letter dated 7/9/1998 is annexed to the petition at Annexure “B” and thereby the Petitioner has tried to mislead this Hon’ble Court. The Section Officer, Education Department vide letter dated 7/9/1998 informed the Registrar that the proposal to upgrade Shri Mukesh D. Mankad cannot be considered as per the prevailing rules. The said letter dated 7/9/1998 is annexed to the petition at Annexure “B” and thereby the Petitioner has tried to mislead this Hon’ble Court. The Education Department, Government of Gujarat was not at all considering as to whether Shri Mukesh D. Mankad should be given the grade of Rs.8000-275- 13500 as well as the designation of Assistant Registrar-cum- Private Secretary to Vice Chancellor because it was not the subject matter before the Education Department and the said designation and grade was already given to the earlier employees....” From the affidavit, it is clear that it was the specific stand of the University in the aforesaid proceedings that the petitioner was not given the designation of Assistant Registrar– cum–Personal Secretary to the Vice-Chancellor on the basis of the resolution dated 11/12.4.1970 passed by the syndicate and the said mistake was rectified by the Executive Council in its meeting held on 12.9.2001 and 29.10.2001, giving the grade of Rs.8,000 – 275 – 13,500 and was also given the designation of Assistant Registrar – cum – Personal Secretary to the Vice- Chancellor. 13. This Court, by an order dated 13.10.2003 did not entertain the writ petition and held that Mr. Mankad (the Petitioner) was never appointed as a Personal Assistant and was appointed as Private Secretary to Vice-Chancellor as the Memorandum dated 11.1.1994, would indicate that he was appointed as Personal Secretary to Vice-Chancellor. It has been held that the resolution passed by the syndicate on 11/12.4.1970 provides that the designation of Personal Secretary to Vice-Chancellor should be Assistant Registrar-cum-Personal Secretary to Vice- Chancellor. However, in the case of Mr. Mankad (the petitioner) a mistake was committed; which was rectified by the resolutions dated 12.9.2001 and 29.10.2001 and therefore, the plea that the post of Mr Mankad could not have been upgraded without prior approval of the State Government is devoid of merits. This Court further observed that the proposal dated 28.5.1998 addressed by the Vice-Chancellor to the State Government, was with respect to sanctioning the scale of Rs.10,000-15,200 and it was never claimed by the Vice- Chancellor that the post of Mr Mankad should be upgraded. This Court further observed that the proposal dated 28.5.1998 addressed by the Vice-Chancellor to the State Government, was with respect to sanctioning the scale of Rs.10,000-15,200 and it was never claimed by the Vice- Chancellor that the post of Mr Mankad should be upgraded. The Court further observed that the proposal for increasing pay scale was not approved by the State Government and the said scale was never paid to Mr Mankad. It has also been observed that the record would show that after correct designation, Mr. Mankad has been granted appropriate scale of pay which was Rs. 8000-13,500 and that is not the subject matter of challenge in the Public Interest Litigation. Relevant para 5 reads thus: “5. From the record of the case, it is event that Mr. Mankad was never appointed as Personal Assistant as is claimed by the petitioner in the petition. Memorandum dated January 11, 1994 would indicate that he was appointed as Personal Secretary to Vice-Chancellor. The resolution passed by the Syndicate on April 11/12, 1970 provides that the designation of Personal Secretary to Vice-Chancellor should be Assistant Registrar -cum-Personal Secretary to Vice-Chancellor. However, in the case of Mr. Mankad, a mistake was committed which was rectified by resolutions dated September 12, 2001 and October 29, 2001. The plea that the post of Mr. Mankad could not have been upgraded without prior approval of the State Government as indicated in communication dated September 7, 1998 produced at Annexure B to the petition and, therefore, the relief claimed in the petition should be granted, is devoid of merits. A bare reading of Annexure B makes it clear that it is with reference to letter May 28, 1998 addressed by the Vice-Chancellor to the Government which is produced at Annexure III to the reply affidavit of the respondent. By the said letter what was claimed was that Mr. Mankad should be sanctioned a scale of Rs.10,000-15,200 and it was never claimed by the Vice- Chancellor that the post of Mr. Mankad should be upgraded. The proposal for increase in pay scale was not approved by the State Government and the said scale was never paid to Mr. Mankad. The records would show that after correct designation Mr. Mankad should be sanctioned a scale of Rs.10,000-15,200 and it was never claimed by the Vice- Chancellor that the post of Mr. Mankad should be upgraded. The proposal for increase in pay scale was not approved by the State Government and the said scale was never paid to Mr. Mankad. The records would show that after correct designation Mr. Mankad has been granted appropriate scale of pay which was Rs.8000-275-13500 and that is not the subject matter of challenge in instant petition nor it is the case of the petitioner that the said scale was sanctioned without prior approval of the State Government. Further what is relevant to notice is that Mr. Mankad against whom relief is claimed is not impleaded as one of the respondents and without hearing him no relief as claimed in the petition can be granted. The net result of the above discussion is that there is no merit in the petition and the same is liable to be dismissed.” Therefore, so far as the aspects of appointment of the petitioner and the re-designation are concerned, both the issues have been given a quietus by this Court. It is not that the State Government was not aware about the appointment so also the re-designation inasmuch as, the State was very much party to the proceedings before this Court in the Public Interest Litigation. Therefore, this court is of the opinion that despite the issues having been decided by this Court, the State Government committed an error in passing the order dated 13.10.2011, observing that the promotion granted to the petitioner is not as per the Rules as the petitioner is not possessing the requisite qualification of Assistant Registrar. Hence, the order dated 13.10.2011, is illegal and against the observations made by this court in Special Civil Application No. 4429 of 2003. 14. After the disposal of the Public Interest Litigation by this Court, the University had addressed the communication dated 9.11.2005 to the Office of the Commissioner, Higher Education, inter alia, requesting to approve the decision taken by the Executive Council in its meeting dated 12.9.2001 as well as 29.10.2001. The office of the Commissioner of Higher Education, in turn, addressed a communication dated 17.7.2006 to the Deputy Secretary, Education Department, recommending, to approve, the decision of the Executive Council, favorably. Along with the communication, the order passed by this Court was also forwarded. The office of the Commissioner of Higher Education, in turn, addressed a communication dated 17.7.2006 to the Deputy Secretary, Education Department, recommending, to approve, the decision of the Executive Council, favorably. Along with the communication, the order passed by this Court was also forwarded. However, it appears that no decision has been taken so far. It is nobody’s case that the State Government was not aware of such appointment; however, the State Government chose not to take any action. In fact, the State Government ought to have taken some decision either way, but it did not. Once everything was within the knowledge of the State Government and despite that if it did not take any action, the question which now arises is as to whether it could have initiated proceedings unilaterally and pass the order in such a fashion. The answer to this issue must be in negative. 15. Moreover, while passing the order date 13.10.2011, reference has been made to the order date 7.9.1998. In this behalf what is required to be found out is what was the proposal and the order was passed in what context. After the petitioner was appointed, Vice-Chancellor of the University addressed a communication dated 28.5.1998, which was pursuant to the application/representation by the petitioner seeking pay scale of Rs.10,000–15,200. The said request was in the wake of increase in quantum of work and responsibilities of the post of Assistant Registrar–cum–Private Secretary to Vice-Chancellor. Representation dated 28.5.1998 was decided by the State Government vide communication dated 7.9.1998 and it did not accept the request of upgrading the pay of Private Secretary to Vice-Chancellor-cum-Assistant Registrar to Rs. 10,000–15,200 instead of Rs.8000-13500. Therefore, what was not accepted by the State Government was upgradation of the pay scale of Assistant Registrar–cum–Private Secretary to Vice-Chancellor to Rs.10,000–15,100 (Old pay scale Rs.3000– 4500). 16. Further, as discussed herein above, the said issue was also raised in the writ petition being Special Civil Application No.4429 of 2003 and this Hon’ble Court observed that the contents of the communication dated 7.9.1998, clearly suggest that it was with reference to letter dated 28.5.1998. The Division Bench observed and held that the proposal for increasing the scale was not approved by the State Government and the said scale was never paid to Mr. Mankad, that is, the petitioner. The Division Bench observed and held that the proposal for increasing the scale was not approved by the State Government and the said scale was never paid to Mr. Mankad, that is, the petitioner. Therefore, so far as the refusal by the State Government vide communication dated 7.9.1998 is concerned, the same had no connection with the grant of pay scale of Rs.8000–13,500 to the petitioner. 17. Perceptibly, because of some vigilance complaint, the State Government appointed a committee consisting of two members, which called for certain details from the University and submitted its undated ex parte report running into two pages and most of which contains factual aspects barring two paragraphs, that is, paragraphs five and six. Paragraph five speaks about the decision of the Executive Council dated 12.9.2001 and decision dated 29.10.2001 as illegal, because the Office of the local fund did not sanction the pay scale of the petitioner while paragraph six is about the proposal by the University and consequential rejection by the Education Department vide decision dated 7.9.1998. On the basis whereof the Committee opined that the promotion offered to the petitioner of Private Secretary to Vice-Chancellor-cum- Assistant Registrar as well as the pay scale of Rs. 8000-13500 is illegal and against the Rules. Clearly, the opinion of the Committee is against the observations made by this Court. The State Government, which, was party to the Public Interest Litigation and was aware about the outcome, ought to have applied its mind to the opinion expressed; however, the State blindly and without application of mind proceeded to pass the order dated 13.10.2011. 18. Pertinently, the State Government had vide letter dated 7.9.1998 rejected the proposal for grant of upgraded scale which issue was distinct and independent of the issue of appointment and redesignation of the petitioner; however, the said decision is made basis for taking a decision for cancelling the appointment, re-designation and pay scale of the petitioner. 18. Pertinently, the State Government had vide letter dated 7.9.1998 rejected the proposal for grant of upgraded scale which issue was distinct and independent of the issue of appointment and redesignation of the petitioner; however, the said decision is made basis for taking a decision for cancelling the appointment, re-designation and pay scale of the petitioner. Even otherwise the said stand on the part of the State Government is also against the observation made by the Division Bench of this Court in the order dated 13.10.2003, wherein it is clearly observed that reading of the contents of the communication dated 7.9.1998 make it clear that the same was with reference to the letter dated 28.5.1998 addressed by the Vice-Chancellor to the Government requesting for sanctioning the scale of Rs.10,000–15,200 and was never claimed by the Vice-Chancellor that the post of Mr. Mankad should be upgraded. Therefore, the appointment of the petitioner as Personal Secretary to Vice-Chancellor–cum– Assistant Registrar has been upheld by this Court by not entertaining the Public Interest Litigation. 19. The State Government directed the University, not only to cancel the appointment of the petitioner, but also to recover the amount paid to him towards the revised pay scale. Moreover, the said order dated 13.10.2011, has been passed by the State Government without considering the say of the University and without offering any opportunity of hearing to the petitioner. Normally, this Court would have sent the matter back to the State Government for fresh consideration, it being in violation of principles of natural justice but in the present case, the order dated 13.10.2011 as discussed above, suffers from the vice of non-application of mind as well and therefore, it deserves to be quashed and set aside. 20. In view of the aforesaid discussion, the order dated 13.10.2011 passed by the Deputy Secretary, Education Department and the order dated 4.1.2012 passed by the respondent no.3 – Gujarat University, are hereby quashed and set aside. 21. It is relevant to take note of the fact that after the order dated 13.10.2011 of the State Government, the University had passed the order dated 30.11.2011, posting the petitioner at the Information Centre after which, he retired and till his retirement, the petitioner did not work as Personal Secretary-cum- Assistant Registrar. 21. It is relevant to take note of the fact that after the order dated 13.10.2011 of the State Government, the University had passed the order dated 30.11.2011, posting the petitioner at the Information Centre after which, he retired and till his retirement, the petitioner did not work as Personal Secretary-cum- Assistant Registrar. In view thereof, the petitioner would be entitled to all the consequential benefits, but on notional basis and the pension of the petitioner be fixed accordingly. 22. The petition succeeds and is hereby allowed. Rule is made absolute to the aforesaid extent. No order as to costs.