Bombay High Court
Mirza Intekhab Akbar Baig vs The State Of Maharashtra And Others on 30 April, 2021
Author: Shrikant D. Kulkarni
Bench: S.V. Gangapurwala, Shrikant D. Kulkarni
8352-20 wp (Jt.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8352 OF 2020
Dr. Mirza Intekhab Akbar Baig
Age : 40 years, Occ: Asst. Professor,
R/o. Wazirabad, Nanded ... Petitioner.
Versus
1. The State of Maharashtra
Through its Secretary
Department of Agriculture and
Animal Husbandry, Dairy
Development and Fisheries,
Maharashtra State.
2. The Vice Chancellor,
Vasantrao Naik Marathwada Krishi
Vidyapeeth, Parbhani.
3. The Registrar
Vasantrao Naik Marathwada Krishi
Vidyapeeth, Parbhani. . ... Respondents.
....
Mr. S.S.Thombre, Advcocate h/f Mr. P.D. Jarare, Advocate for the
Petitioner.
Mr. P.K. Lakhotiya, A.G.P. for Respondent No.1. / State.
Mr. M.N. Navandar, Advocate for Respondent Nos.2 and 3.
....
CORAM : S.V. GANGAPURWALA AND
SHRIKANT D. KULKARNI, JJ.
Closed for Judgment on : 01.04.2021
Judgment Pronounced on : 30.04.2021
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JUDGMENT (PER SHRIKANT D. KULKARNI, J.) :-
1. Rule. Rule made returnable forthwith. With the consent of the parties, heard finally at admission stage.
2. The petitioner an Assistant Professor is seeking directions to participate in the process of promotional post of Associate Professor by invoking the extra ordinary jurisdiction under Article 226 of the Constitution of India.
3. The factual matrix of the case is as under:
3(i) The petitioner was appointed as a Junior Research Assistant on 30.05.2006 on the establishment of Respondent No.2 / Vasantrao Naik Marathwada Krishi Vidyapeeth, Parbhani. (hereinafter referred to as the "University"). After working for certain period on the post of Junior Research Assistant, the petitioner was selected on the post of Senior Research Assistant on 27.09.2007 on the basis of merit. He continued to work on the said post till 02.08.2011. On 03.08.2011, the petitioner came to be promoted for a period of 11 months on the vacant post of Assistant Professor in the Department of Agronomy by considering his seniority, merit, educational qualification and annual confidential reports, as per the Statute 74 of the Maharashtra Agricultural Universities (Krishi Vidyapeeths) Statutes, 1990 (hereinafter referred to as the "Statutes of 1990").
2 of 28 ::: Uploaded on - 30/04/2021 ::: Downloaded on - 09/09/2021 14:29:32 ::: 8352-20 wp (Jt.) 3 3(ii) The petitioner was temporarily promoted as an Assistant Professor in the year 2011 and he continued on the same post from the year 2011. In the year 2018, the University issued permanent appointment order of the petitioner on the post of Assistant Professor as per the recommendations made by the departmental promotional committee, however without considering the services rendered by the petitioner from 03.08.2011 to 21.06.2015. According to the petitioner, he was promoted on the basis of merit, academic qualification and annual confidential reports. Immediately within a period of 11 months, the selection process ought to have been completed by the University as per Statute 75. It is the stand of the petitioner that though the petitioner possesses all the requisite qualification viz. Ph.D. or NET / SET, the experience of the petitioner on the post of Assistant Professor from 2011 onwards ought to have been considered by the University in the zone of promotion of Associate Professor. The petitioner and other similarly situated candidates have made representation to the University to consider them for the post of Associate Professor, but the same was not considered by the University.
3(iii) The Government of Maharashtra through its General Administration Department has issued a circular dated 03.04.2004, wherein it is clarified the modalities in which experience of the 3 of 28 ::: Uploaded on - 30/04/2021 ::: Downloaded on - 09/09/2021 14:29:32 ::: 8352-20 wp (Jt.) 4 candidates would be considered for selection and promotion. The Government of Maharashtra through its Higher and Technical Education Department has also issued a Government Resolution dated 17.10.20115 relating to counting of past service for direct recruitment and promotion under Career Advancement Scheme (CAS). In the above background, the petitioner is before us.
STAND OF THE UNIVERSITY
4. The Deputy Registrar (Administration) working with the University has filed affidavit on its behalf and denied the grounds raised by the petitioner for his eligibility for the post of Associate Professor. It is the stand of the University that the Maharashtra Agricultural University (Krishi Vidyapeeth) Act, 1983 (hereinafter referred to as the "Act of 1983") and its Statutes 1990 hold the field. According to Statute 138, the Maharashtra Civil Services Rules as amended and added from time to time are made applicable mutatis mutandis to the employees of this University. As such, the Civil Services Rules prescribed by the Government of Maharashtra are binding on the University in view of binding force of Statute 138.
5. The State Government has issued revised qualification vide its Government Resolution dated 15.03.2014 and thereby amended the 4 of 28 ::: Uploaded on - 30/04/2021 ::: Downloaded on - 09/09/2021 14:29:32 ::: 8352-20 wp (Jt.) 5 Statutes of 1990. On various dates, the temporary promotional orders were issued by the University in the name of petitioner on the post of Assistant Professor in view of the specific provision of Statue 74 under the powers vested with the Vice Chancellor. As such, the promotional orders issued to the petitioner were in the nature of temporary and purely on the basis of stop gap arrangement for the period of 11 months.
6. According to the Statutes 1990, the qualification prescribed for the post of Associate Professor are Ph.D. in respective discipline and minimum eight years of experience in teaching, research or extension education in the position of Assistant Professor or its equivalent in a university or accredited grant in aid college, recognized research institution excluding the period of Ph.D. and other qualification as per Statute 73.
7. The promotional orders given to the petitioner were purely on temporary basis and by way of stop gap arrangement for 11 months period by giving breakup. It is submitted that the reliance placed by the petitioner on Government Resolutions dated 03.07.2004 and 17.10.2015 are misplaced. The subject is governed by the recent Government Resolution dated 01.08.2019 issued by the General 5 of 28 ::: Uploaded on - 30/04/2021 ::: Downloaded on - 09/09/2021 14:29:32 ::: 8352-20 wp (Jt.) 6 Administration Department, Mantralaya, Mumbai, wherein guidelines are issued regarding the previous experience to be considered for the promotional post.
8. As per the Circular issued by the University dated 11.11.2020, the candidates who have completed eight years of service on the post of Assistant Professor are only held eligible candidates for the promotional post of Associate Professor and they are only entitled to make an application. The petitioner does not fulfill the requisite condition of experience. He is not eligible for the promotional post of Associate Professor. Eight years of experience in teaching as provided under Statute 73 is not fulfilled by the petitioner and as such, not eligible for the said promotional post of the Associate Professor.
9. We have heard Mr. Thombre, learned counsel for the petitioner, Mr. Lakhotiya, learned A.G.P. for respondent No.1 / State and Mr. Navandar, learned counsel for respondent Nos.2 and 3 / University.
10. We have perused the permanent appointment order issued to the petitioner for the post of Assistant Professor dated 22.06.2015, copy of Circular dated 03.07.2004 issued by the Government of Maharashtra through its General Administration Department, copy of 6 of 28 ::: Uploaded on - 30/04/2021 ::: Downloaded on - 09/09/2021 14:29:32 ::: 8352-20 wp (Jt.) 7 Government Resolution dated 17.10.2015, copy of Circular issued by the University dated 11.11.2020, copy of Government Resolution dated 05.10.2015 and copy of Government Resolution dated 01.08.2019. We have also perused the Maharashtra Agricultural University (Krishi Vidyapeeths) Act, 1983 and the Maharashtra Agricultural Universities (Krishi Vidyapeeths) Statutes, 1990. ARGUMENT ADVANCED BY THE LEARNED COUNSEL FOR THE PETITIONER
11. Mr. Thombre, learned counsel for the petitioner strenuously argued that the petitioner was appointed through advertisement on the basis of merit initially on the post of Junior Research Assistant on the establishment of the University and he is working with the University since 31.05.2006. The petitioner was promoted on the post of Assistant Professor in the year 2011 after considering his merit, seniority and educational qualification and annual confidential reports as well. He has received salary, annual increments on the said post from 03.08.2011 to 21.06.2015. The petitioner came to be appointed on the permanent post of Assistant Professor in the year 2015. The petitioner ought to have been appointed on the permanent post of Assistant Professor much earlier as per the Statute 77.
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12. The University is following the practice of considering past experience on the temporary promoted post while giving promotion to the higher post. Mr. Thombre submitted that the petitioner is a suitable candidate to apply for the promotional post of Associate Professor since he has rendered his service as Assistant Professor from 2011. The petitioner possesses requisite qualification viz. Ph.D or NET / SET with requisite qualification as per the Government Circular dated 03.07.2004 and Government Resolution dated 17.10.2015. The petitioner is eligible to participate in the process for promotional post of Associate Professor. He has given representation to the University, but no reply is received. By taking into consideration educational qualification, experience and annual confidential reports, he is eligible for the post of Associate Professor as per the Statute. The University has not considered the services rendered by the petitioner on the temporary post of Assistant Professor and thereby caused injustice. The petitioner may be allowed to participate in the processes of selection for the post of Associate Professor since he possess all the requisite qualifications as contemplated under Statute 73.
13. To buttress the argument, Mr. Thombre has placed his reliance on the following stock of the citations.
(i) P.V.T. Philip Vs. P. Narsimha Reddy and Ors. reported in 8 of 28 ::: Uploaded on - 30/04/2021 ::: Downloaded on - 09/09/2021 14:29:32 ::: 8352-20 wp (Jt.) 9 AIR 1993 SCC 2403.
(ii) Dr. Ashok Ramdasji Mhaske Vs. Dr. Punjabrao Deshmukh Krishi Vidyapeeth, Akola and others (Writ Petition No.146 of 2015 decided on 29.10.2018 ) Bench at Nagpur.
(iii) Union of India and others Vs. Bigyan Mohapatra and others reported in 1993 Supp (2) SCC 239.
ARGUMENT ADVANCED BY THE LEARNED COUNSEL FOR RESPONDENT NOS. 2 AND 3 / UNIVERSITY
14. Per contra, Mr. Navandar, learned counsel for respondent Nos. 2 and 3 / University submitted that the University is governed by the Act of 1983 and Statutes of 1990. He submitted that Statute 138 makes it clear that the provisions of Maharashtra Civil Services Rules as amended from time to time are made applicable mutatis mutandis to the employees of this University, affiliated colleges and recognized institutions. Agricultural Universities in the State of Maharashtra are partly financed by the Indian Council of Agricultural Research (ICAR) and major financial support is from the State Government. The directions of the University is only in the nature of guidelines. The norms prescribed by the UGC are not axiomatically made applicable to the academic staff working in the Agricultural Universities. The provisions of Civil Services Rules prescribed by the State of Maharashtra are binding over the Agricultural Universities in the State of Maharashtra by Statute 138.
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15. He submitted that, even though the petitioner was initially given temporary promotion on the post of Assistant Professor on 03.08.2011, it was for a period of 11 months and as a stop gap arrangement. The petitioner came to be appointed on the permanent post of Assistant Professor on 22.06.2015 on the basis of recommendations of the Departmental Promotional Committee. Whatever services rendered by the petitioner as Assistant Professor on temporary post can not be considered while counting the experience for the post of Associate Professor. Mr. Navandar invited out attention to Statute 73, which relates to qualification of the post of academic staff members more particularly Associate Professor. He submitted that minimum 8 years of experience in teaching or research or extension education in the position of Assistant Professor, is must. The petitioner has not completed 8 years of experience as required by Statute 73.
16. Mr. Navandar submitted that the Government Resolution dated 01.08.2019 holds the field. It is a recent Government Resolution issued by the General Administration Department, wherein the guidelines have been laid down for promotional appointment. This Government Resolution is binding on the University. He pointed out 10 of 28 ::: Uploaded on - 30/04/2021 ::: Downloaded on - 09/09/2021 14:29:32 ::: 8352-20 wp (Jt.) 11 that as per clause 5.1.2 of the said Government Resolution dated 01.08.2019, while counting the experience, the services rendered on the regular post must be considered and the services rendered on adhoc post can not be considered. He submitted that the petitioner has rendered his services on temporary post of Assistant Professor from 03.08.2011 to 21.06.2015 as a stop gap arrangement with breakup and as such, that period can not be considered as an experience for the post of Associate Professor as contemplated under Statute 73. He submitted that there is no merit in the claim put forth by the petitioner.
17. Mr. Navandar has placed his reliance on the following citations.
(i) Union of India and another Vs. G.R.K. Sharma reported in 1999 AIR (SC) 535.
(ii) Union of India and others Vs. K. Savitri and others reported in (1998) 4 SCC 358.
ADMITTED FACTUAL SCENARIO
18. The Petitioner joined on 30.05.2006 as a Junior Research Assistant with the University through advertisement and on the basis of merit. He was appointed as Senior Research Assistant on 27.09.2007. He was appointed as Assistant Professor firstly on 03.08.2011 for a period of 11 months and continued to work on the 11 of 28 ::: Uploaded on - 30/04/2021 ::: Downloaded on - 09/09/2021 14:29:32 ::: 8352-20 wp (Jt.) 12 said post till 21.06.2015. On 22.06.2015, the petitioner came to be appointed on the permanent post of Assistant Professor on the basis of recommendations of Departmental Promotion Committee. The University has issued a Cirvular on 11.11.2020, whereby the applications are invited from Assistant Professors eligible for the post of Associate Professor.
19. According to the petitioner he possesses requisite educational qualification and 8 years experience as well and therefore, eligible candidate for the post of Associate Professor. Whereas, it is the stand of the University that the petitioner has not completed 8 years experience as required under Statute 73. The experience of the petitioner on the post of Assistant Professor on temporary post as a stop gap arrangement from 03.08.2011 to 21.06.2015 can not be considered as experience and needs to be excluded.
20. The centre of dispute between the parties is with regard to consideration of past services / experience rendered by the petitioner on the post of Assistant Professor on adhoc basis from 03.08.2011 to 21.06.2015.
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21. It is not in dispute that the Agricultural Universities are governed by the Maharashtra Agricultural Universities (Krishi Vidyapeeths) Act, 1983 and the Maharashtra Agricultural Universities (Krishi Vidyapeeths) Statutes, 1990. Section 138 of the Statute is relevant and important to determine the whole controversy on hand. Statute 138 reads thus :-
"Statute 138. Pay, Allowances, Pension, Leave General conditions of services of the Employees of the University, affiliated colleges and recognised institutions other than those Recognised for Research and Specialised higher Learning. - (1) In accordance with the provisions of section 28 and clause (c) and (g) of section 37 of the Act and the provisions made else where in the Act and the Statutes in this behalf and provisions of the following Maharashtra Civil Service Rules (as amended and added from time to time) applicable to the State Government employees shall 'be applicable mutaties mutandis to the employees of the University, affiliated colleges and recognised institutions other than those Recognised for Research and specialised higher learned.
(i) The Maharashtra Civil Services (General conditions of Services) Rules, 1981; and
(ii) The Maharashtra Civil Services (pay) Rules, 1981; and
(iii) The Maharashtra Civil Services (Joining Time, Foreign Service and Payments during suspension, Dismissal and Removal) Rules, 1981; and
(iv) The Maharashtra Civil Services (Leave) Rules, 1982; and
(v) The Maharashtra Civil Services (Pension) Rules, 1982; and 13 of 28 ::: Uploaded on - 30/04/2021 ::: Downloaded on - 09/09/2021 14:29:32 ::: 8352-20 wp (Jt.) 14
(vi) The Maharashtra Civil Services (Commutation of Pension) Rules, 1984; and
(vii) The Maharashtra Discipline and Conduce Appeal Rules, 1979; and (viii) The The Maharashtra Civil Services (Discipline and Appeal) Rules, 1979.
(2) The employees of affiliated colleges and recognised institutions who are in service prior to the date of passing of this statute shall be governed by such conditions of service contract, if any, agreed to between the employees and the institution in respect of age of superannuation which will not exceed 60 years in any case.
(3) The Executive Council will determine from time to time the competent authorities for execution of the rules mentioned in clause (1) above.
22. Having regard to Statute 138, the Maharashtra Civil Services Rules are also applicable and certainly binding on the Agricultural Universities in the State of Maharashtra. The subject of promotion is also covered by Statute 138 since the Maharashtra Civil Services (General conditions of Services) Rules, 1981 are applicable. In that premise, the Government Resolutions issued by the General Administration Department, State of Maharashtra regarding general conditions of services including promotions are applicable to the Agricultural Universities.
23. The case of Dagadu Dashrath Pardhe Vs. State of Maharashtra and others reported in 2019(4) AIR Bom. H.C. Reports 137 is relevant and holds the field. In Dagadu Dashrath Pardhe (supra) the 14 of 28 ::: Uploaded on - 30/04/2021 ::: Downloaded on - 09/09/2021 14:29:32 ::: 8352-20 wp (Jt.) 15 Division Bench of this Court (to which one of us was a party, S.V. Gangapurwala, J.) has held that "the Agricultural University would be governed by the Act, Statutes and Regulations framed". It is observed that, " Section 54 of the Act 1983 provides that the State Government shall have over all control over the financial matters of the university. As per Section 138 of the Maharashtra Agricultural Universities (Krishi Vidyapeeths) Statutes, 1990, the provisions of the Maharashtra Civil Services Rules are made applicable to the employees of the university affiliated colleges and recognised institutions. The Maharashtra Agricultural Universities (Krishi Vidyapeeths) Statutes, 1990 are applicable to all the agricultural universities in the State of Maharashtra".
24. It is further held by the Division Bench of this Court that, after the UGC Regulations, 2010 came into force the State Government amended the Statute 73 Appendix III and provided for the minimum qualifications. It would thus be seen that the State Government accepted the UGC Regulations with regard to the minimum qualifications for the post of Assistant Professor of Agricultural Universities in the State of Maharashtra with certain modifications".
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25. Having regard to the legal position clear by the Division Bench of this Court in case of Dagadu Dashrath Pardhe (supra), the University is required to adhere to its Statute 73 Appendix III and Government Resolutions issued by the General Administration Department from time to time as well while recruitment, promotion and appointment of the teaching faculty in the Universities and colleges.
26. Now coming to the Statute 73 Appendix III, which provides qualifications for the post of academic staff members. The petitioner is seeking the promotion for the post of Associate Professor in the department of Agronomy. The qualifications for the post of Associate Professor as per Statute 73 Appendix III are as under:
Sr. No. Designation of the post Qualification (1) (2) (3) 1 Associate Professor (1) A Ph.D. in respective discipline;
(2) A minimum eight years of experience in teaching or research or extension education in the position of Assistant Professor or its equivalent; in a University or Accredited grant-in-aid College, Recognized Research Institution Excluding the period of Ph.D.;
16 of 28 ::: Uploaded on - 30/04/2021 ::: Downloaded on - 09/09/2021 14:29:32 ::: 8352-20 wp (Jt.) 17 (3) Contribution to educational innovation, design of new curricula and courses and technology mediated teaching-learning process with evidence of having guided two post graduate students worked on advisory committee of five post graduate students in the discipline where masters programme is not available;
(4) Evidence of at least five published papaers in recognized journals having ntional Academy of Agricultural Science rating;
(5) A minimum score as stipulated in the Academic Performance Indicator (API) based on Appraisal System (PBAS).
27. As per Statute 73 (supra), a minimum eight years of experience in teaching or research or extension education on the post of Assistant Professor or its equivalent in University or Accredited grant-in-aid College, Recognized Research Institution excluding the period of Ph.D is mandatory. Statute 73 nowhere provides that services rendered on the adhoc post of Assistant Professor or services rendered on the post of Assistant Professor as a stop gap arrangement would be considered while calculating minimum eight years of experience in teaching or research.
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28. Mr. Thombre, learned counsel for the petitioner has placed his reliance on the decision of the Hon'ble Supereme Court in case of P.V.T. Philip Vs. P. Narsimha Reddy and Ors. (supra) in order to support his submission that services rendered temporarily are reqyured to be considered for promotional post. We have gone through the facts of the case in case of P.V.T. Philip Vs. P. Narsimha Reddy and Ors. (supra). It was a case of promotion under Rule 3 of Andhra Pradesh jail Subordinate Services Rules. Here the case on hand governed by Maharashtra Agricultural (Krishi Vidyapeeths) Act, 1983 and Statues 1990 made thereunder. P.V.T. Philip Vs. P. Narsimha Reddy and Ors. (supra) is not any way help to the petitioner.
29. We have also gone through the decision of the Division Bench of this Court, Bench at Nagpur in case of Dr. Ashok Ramdasji Mhaske in Writ petition No.146 of 2015 decided on 29.10.2018. In that case, the petitioner has challenged the order passed by the Grievance Committee, whereby the prayer of the petitioner for grant of regular promotion from the year 2004 in the post of Associate Professor came to be turned down. The petitioner's claim for grant of regular promotion was based upon the Government Resolution dated 25.05.2004. It was before the amendment to Maharashtra 18 of 28 ::: Uploaded on - 30/04/2021 ::: Downloaded on - 09/09/2021 14:29:32 ::: 8352-20 wp (Jt.) 19 Agricultural (Krishi Vidyapeeths) Statues, 1990. There was amendment to the Statutes 1990 on 15.03.2014. By way of amendment to Statute 73 Appendix III, qualifications for the post of Associate Professor are fixed, which provides a minimum eight years of experience in teaching or research. Having regard to the above distinguishing facts of the cited case and the facts of the case on hand, the decision in case of Dr. Ashok Ramdasji Mhaske (supra) does not render any help to the petitioner.
30. Mr. Thombre has also placed his reliance on the decision of the Hon'ble Supreme Court in case of Union of India and others Vs. Bigyan Mohapatra and others (supra) regarding consideration of adhoc services for regular promotion. In case of Union of India and others Vs. Bigyan Mohapatra and others (supra), it is held by the Hon'ble Supreme Court that the services rendered on the adhoc post can not claim a right of regular promotion. The Hon'ble Supreme Court has directed that the case of Junior Clerk shall be considered to the post of officiating Clerk in view of vacancy.
31. We have also gone through the citation in case of Union of India and another Vs. G.R.K. Sharma (supra), wherein the case of Union of India and others Vs. K. Savitri and others was also 19 of 28 ::: Uploaded on - 30/04/2021 ::: Downloaded on - 09/09/2021 14:29:32 ::: 8352-20 wp (Jt.) 20 considered. It is held by the Hon'ble Supreme Court as under:
"The expression "regular service of eight years in the grade" would connote rendering eight years of service in the organisation to which he has been appointed. In a somewhat similar situation, this Court has considered similar expression in the case of Union of India (UOI) and Others Vs. K. Savitri and Others, where it has been held that the past service of redeployed surplus employee cannot be counted for his seniority in the new organisation and equally, the past experience also would not count as the so-called past service rendered will not be service in the grade. The aforesaid decision interpreting the similar expression "service in the grade"
would equally apply in the present case where the statutory rule also uses the expression "regular service of eight years in the grade."
32. Now coming back to the factual aspects of the case. Mr. Thombre has placed heavy reliance on the Government Resolution issued by the General Administration Department issued on 05.10.2015 more particularly clause 1, which provides that while giving promotion, the experience of three years regular service would be sufficient. By taking the help of the above said Government Resolution, Mr. Thombre argued that the petitioner is eligible for the promotional post of Associate Professor. Mr. Thombre also invited our attention to the Circulars issued by the General Administration Department dated 03.07.2004 and 25.02.2005 regarding consideration of experience rendered on temporary post.
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33. Per contra, Mr. Navandar invited our attention to the recent Government Resolution issued by the General Administration Department, Government of Maharashtra dated 01.08.20219, which are the guidelines issued by the State for giving the promotion to the government officers and staff. Mr. Navandar invited our attention to the Clause 5.1.2 of the said Government Resolution, which reads thus:
"5-1-2 fuEu laoxkZrhy fdeku lsosph vV &-
lanHkZ dz-2 ;sFkhy fn-31-5-1989 pk 'kklu fu.kZ; vf/kdzfer d#u o lanHkZ dz-29 ;sFkhy fn- 5-10-2015 P;k 'kklu fu.kZ;kUo;s fnysY;k lwpuk fopkjkr ?ksÅu] fuEu laoXkkZrhy fdeku lsosph vV iq<hyizek.ks fuf'pr dj.;kr ;sr vkgs%& xV&d iklwu xV&v e/khy loZ VII;kaiZarP;k inkUurh djrkuk fudVe fuEu inkoj fdeku rhu o"kkZP;k fu;fer lsosph vV inksUurhlkBh iwoZ vV Eg.kwu jkghy o R;ke/;s dks.krhgh f'kFkhyrk vuqKs; jkg.kkj ukgh- ek=] T;k fBdk.kh foof{kr dkj.kkLro lsok izos'k fu;ekr fuEuLrjhl laoxkZrhy lsospk fdeku dkyko/kh rhu o"kkZis{kk tkLr uewn dsyk vlY;kl] lnj dkyko/kh fopkjkr ?;kok- fuEu inkojhy lsospk fdeku dkyko/kh gk lnj inkoj fu;fer dsY;kiklwupk vlyk ikfgts-
fuEu inkojhy dkekpk vuqHko gk inksUurhuarj ofj"B inkojhy dkekP;k vuq'kaaxkus vko';d vlY;kus] rhu o"kkZP;k fdeku lsosph vV inksUurhlkBh fofgr dj.;kr vkyh vkgs- R;keqGs vdk;Zfnu Eg.kwu ?kksf"kr dsysY;k dkyko/khph fdeku 21 of 28 ::: Uploaded on - 30/04/2021 ::: Downloaded on - 09/09/2021 14:29:32 ::: 8352-20 wp (Jt.) 22 lsosP;k dkyko/khe/;s x.kuk d# u;s- R;kpcjkscj ,[kknk vf/kdkjh@deZpkjh gk ,d o"kZ fdaok vf/kd dkyko/khlkBh fuEu laoxkZrhy inkoj dke u djrk oS;fDrd dkj.kkLro izf'k+{k.k vFkok v/;;u jtk vFkok vlk/kkj.k jtk b- dkj.kkaeqGs xSjgtj vlY;kl] lnj xSjgtsjhpk dkyko/kh fdeku lsosP;k dkyko/khe/;s x.kuk dj.;kckcr lferhus xq.koRrsuqlkj izdj.kijRos fu.kZ; ?;kok-"
34. On careful study of the above said Government Resolution, we have noticed that the Government has also considered all the previous Government Resolutions including Government Resolution dated 05.10.2015 referred by Mr. Thombre and issued the recent Government Resolution dated 01.08.2019, wherein consolidated guidelines have been issued to the departments for consideration of work experience while giving promotional post. Certainly, Government Resolution dated 01.08.2019 superseded over the Government Resolution dated 05.10.2015 as well the Circular issued in the year 2004 and 2005. The guidelines issued by the State Government by way of recent Government Resolution dated 01.08.2019 are now hold the field.
35. On cojoint reading of Government Resolution dated 01.08.2019 and Statute 73 Appendix III of Statutes 1990, it is difficult to accept the submissions advanced by Mr. Thombre, learned counsel for the
22 of 28 ::: Uploaded on - 30/04/2021 ::: Downloaded on - 09/09/2021 14:29:32 ::: 8352-20 wp (Jt.) 23 petitioner. The services rendered by the petitioner on adhoc post of Assistant Professor cannot be considered. The services rendered by the petitioner on the regular post of Assistant Professor would be considered for promotional post of Associate Professor. The petitioner was appointed in the year 2015 on the regular post of Assistant Professor. The services rendered by the petitioner from 03.08.2011 to 21.06.2015 in the cadre of Assistant Professor on adhoc basis as a stop gap arrangement cannot be termed as a regular service in the cadre of Assistant Professor as contemplated under Statute 73 and in view of import of Government Resolution dated 01.08.2019. As per mandate of Statute 73 Appendix III, the petitioner is required to complete minimum eight years of experience in the cadre of Assistant Professor, then only he would be eligible for the post of Associate Professor. Admittedly, the University has issued permanent appointment order of Assistant Professor in favour of the petitioner on 22.06.2015. As such he is brought in the cadre of Assistant professor only on 22.06.2015. If we make necessary calculation from the date of his regular appointment in the cadre of Assistant Professor, he is not completing eight years regular service. In view of clause 5.1.2 of the recent Government Resolution dated 01.08.2019, the petitioner is not entitled to get relaxation of experience.
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36. Mr. Thombre, learned counsel invited our attention to earlier appointment orders issued by the University. Mr. Thombre invited our attention to the appointment orders pertaining to Mrs. Khodke Smita Uday and Shri B.G. Hivale and others, and submitted that previous work experience on the post of adhoc Assistant Professor was considered by the University. We do not find any merit in the submissions of Mr. Thombre. Those appointment orders are prior to the amendment to Maharashtra Agricultural Universities (Krishi Vidyapeeths) Statutes, 1990. The statutes of 1990 have been amended on 15.03.2014, whereby qualifications for the post of academic staff members are prescribed. Statute 73 Appendix III clearly provides a minimum eight years of experience in teaching or research in the position of Assistant Professor or its equivalent in a University or Accredited grant-in-aid College or Recognized Research Institution. Therefore, previous appointment orders referred and relied by Mr. Thombre are not any way helpful to the petitioner.
37. On perusal of Statute 73 Appendix III (supra), it is noticed by us that it prescribes a minimum eight years of experience in teaching or research etc. The said provision is silent whether eight years service experience for the post of Associate Professor rendered on adhoc post would be considered or service rendered by the candidate on the 24 of 28 ::: Uploaded on - 30/04/2021 ::: Downloaded on - 09/09/2021 14:29:32 ::: 8352-20 wp (Jt.) 25 regular post of Assistant Professor would be alone considered. In view of silent nature of Statute 73 Appendix III regarding clause of experience, we need to take assistance of Government Resolution dated 01.08.2019 issued by General Administration Department of Government of Maharashtra regarding consideration of work experience. The Government has issued the guidelines by way of Government Resolution dated 01.08.2019, which provides that previous work experience on regular post shall be considered. Meaning thereby the services rendered on adhoc post would not be taken in to consideration while considering eligibility criteria for promotional post. The services rendered on regular post would be alone considered for promotional post.
38. It is trite that Government cannot amend or supersede statutory Rules by administrative instructions, but if the rules are silent on any particular point, Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. When the Rules or Regulations are silent on a particular point, the executive power could be exercised only to fill in the gaps but the instructions cannot and should not supplant the law, but would only supplement the law. The University has adopted Maharashtra Civil Services Rules. The Government Resolutions issued 25 of 28 ::: Uploaded on - 30/04/2021 ::: Downloaded on - 09/09/2021 14:29:32 ::: 8352-20 wp (Jt.) 26 by the General Administration Department are also applicable to the employees of the University. As such, the above said Government Resolution dated 01.08.2019 is binding on the University and it needs to be implemented by the University. The said Government Resolution dated 01.08.2019 has put the petitioner out of zone.
39. We have also gone through the appointment order issued by the University dated 03.08.2019 to the petitioner for temporary appointment of 11 months on the post of Assistant Professor. The appointment order clearly speaks that the period of adhoc appointment shall be of 11 months and said appointment is given subject to final seniority list and vacant post available. The appointment order also provides a clause to furnish undertaking on Stamp paper / Bond of Rs.100/-. The University has produced the deed of undertaking executed on Stamp paper / Bond of Rs.100/-, which provides that he has accepted the adhoc appointment of Assistant Professor (Agronomy) subject to approval of the relevant selection committee and he may be reverted back to his original position in the event of disapproval of promotion by selection committee. He has further accepted by way of undertaking that said temporary promotion is subject to terms and conditions of UGC guidelines and also subject to approval of State Government. He has 26 of 28 ::: Uploaded on - 30/04/2021 ::: Downloaded on - 09/09/2021 14:29:32 ::: 8352-20 wp (Jt.) 27 accepted the position that his promotion on the post of Assistant Professor is purely temporary one.
40. Having regard to the undertaking given by the petitioner on Stamp paper / Bond of Rs.100/-, it would be very much clear that the petitioner has understanding about the temporary promotional post of Assistant Professor for the 11 months. He can not claim that service as a regular service on the post of Assistant Professor so as to claim promotional post of Associate Professor. No employee has a right of promotion but he has only the right to be considered for promotion according to Rules. Those chances of promotion are not conditions of services and indefeasible right. As there is only right to be considered for promotion reduction in chances of promotion does not affect any right.
41. The experts in the field of academics have prescribed the qualifications for the post of Associate Professor with certain amount of work experience which cannot be compromised. It may affect on the quality education. The recent Government Resolution providing guidelines to consider past experience coupled with other factors for considering promotional post, the past services rendered by the petitioner on the adhoc post as a stop gap arrangement cannot be 27 of 28 ::: Uploaded on - 30/04/2021 ::: Downloaded on - 09/09/2021 14:29:32 ::: 8352-20 wp (Jt.) 28 considered as an experience for promotion. We do not see any reason to disturb the qualification prescribed by the Statute 73 for the post of Associate Professor. We do not find any merit in the petition to exercise our extra ordinary writ jurisdiction under Article 226 of the Constitution of India.
42. For the reasons stated above, we proceed to pass the following order:
ORDER
(i) The writ petition stands dismissed.
(ii) Rule discharged.
(iii) No order as to costs.
( SHRIKANT D. KULKARNI ) ( S.V. GANGAPURWALA )
JUDGE JUDGE
S.P. Rane
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