Gujarat High Court
M S University Of Baroda Through ... vs K V R Murthy on 4 March, 2024
NEUTRAL CITATION
C/SCA/15733/2010 JUDGMENT DATED: 04/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15733 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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M S UNIVERSITY OF BARODA THROUGH REGISTRAR & ANR.
Versus
K V R MURTHY & ORS.
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Appearance:
MR MITUL K SHELAT(2419) for the Petitioner(s) No. 1,2
DELETED for the Respondent(s) No. 4
MR RAMNANDAN SINGH(1126) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 04/03/2024
ORAL JUDGMENT
1. Present petition is filed by the petitioners under Articles 226 and 227 of the Constitution of India for the following reliefs:- Page 1 of 18 Downloaded on : Mon Mar 04 20:47:53 IST 2024
NEUTRAL CITATION C/SCA/15733/2010 JUDGMENT DATED: 04/03/2024 undefined "A. The Honourable Court may be pleased to quash and set aside the common order dated 01/03.09.2010 passed by the Honourable Gujarat University Services Tribunal in Application No.4 of 2010.
B. Pending admission and final hearing of the matter, the Honourable Court be pleased to stay the order dated 01/03.09.2010 passed by the Honourable Gujarat University Services Tribunal in Application No,.4 of 2010.
2. Short facts of the present petition, in nutshell, are that petitioner No.1 is a University constituted under the Maharaja Sayajirao University Act (for short "the M.S. University Act") and respondent No.1 is holding the post of Reader in the faculty of technology and engineering. That All India Council for Technical Education (AICTE) issued Notification dated 03.05.2000 for revision of pay scales and associate terms and conditions of service of Teachers, Librarians and Physical Education Personal of Degree Level Private Self Finance Technical Institutions and the provision for career advancement was made thereunder. The said notification provided that in consultation with the Government of India, the guidelines would be laid down for selection process to be evolved for grant of benefit of career advancement and in continuation of the said notification, the Page 2 of 18 Downloaded on : Mon Mar 04 20:47:53 IST 2024 NEUTRAL CITATION C/SCA/15733/2010 JUDGMENT DATED: 04/03/2024 undefined AICTE issued Notification dated 31.07.2001 laying down the guidelines for the process of selection, which provides for constitution of the Selection Committee which would consider the applications under the career advancement scheme. That Syndicate of the petitioner - University considered the guidelines by resolution No.18 dated 31.08.2001 - Appendix 19 issued by the AICTE. It is contended that the Government of Gujarat issued Government Resolution dated 03.07.2006 in view of the Notification issued by AICTE provided for constitution of the Selection Committee for the purpose of career advancement and the petitioner - University in compliance with the Government Resolution dated 03.07.2006 constituted a Selection Committee.
Thereafter, respondent No.1 had applied for promotion as professor of Applied Physics in the faculty of Technology and Engineering and he was considered by the Selection Committee, but not recommended for promotion. The respondent No.4 was recommended by Selection Committee constituted by the University and the recommendation was placed before the syndicate in its meeting and vide resolution No.14 - 13, the recommendations of the Selection Committee were accepted. Page 3 of 18 Downloaded on : Mon Mar 04 20:47:53 IST 2024
NEUTRAL CITATION C/SCA/15733/2010 JUDGMENT DATED: 04/03/2024 undefined That respondent No.1 approached the Gujarat University Services Tribunal by filing Application No.5 of 2008 for quashing and setting aside the decision of the Selection Committee and the syndicate pertaining to the promotion to professor, which came to be dismissed by the Tribunal. The respondent No.1 filed Application No.4 of 2010 for quashing and setting aside the selection process on the ground that the Selection Committee was constituted in violation of Section 8 and Section 48 of the M S University Act and for re-constitution of the Selection Committee. The Tribunal after hearing the parties had allowed the application on the ground that the Selection Committee was not constituted in accordance with Section 8A and Section 48 of the M S University Act and hence, the said order is under challenge in this petition.
3. Heard Mr.Mitul Shelat, learned counsel appearing for the petitioners and Mr.Ramnandan Singh, learned counsel appearing for respondent No.1 at length. Perused the materials placed on record.
4. Mr.Mitul Shelat, learned counsel appearing for the Page 4 of 18 Downloaded on : Mon Mar 04 20:47:53 IST 2024 NEUTRAL CITATION C/SCA/15733/2010 JUDGMENT DATED: 04/03/2024 undefined petitioners has submitted the same facts which are narrated in the memo of petition and has submitted that the impugned orders passed by the Tribunal are barred by the principles of res judicata and in the first application, the respondent has not raised the plea that the constitution of the Selection Committee was illegal in view of Section 8A of the M S University Act and such plea was within the knowledge of the respondent, which could have been taken in the first application. He has submitted that the Tribunal has not considered the fact that since the respondent made an attempt to inquire about the age of its members at a subsequent date, he could first file the application on that basis and the principles of res judicata is not based on date of knowledge but the requirement in the law to raise all pleas. He has submitted that the Tribunal ought to have dismissed the application filed under Order 2 Rule 2 of the Civil Procedure Code and also committed an error while applying the provisions of Section 8A and Section 48 of the M S University Act. He has submitted that Section 8A of the M S University Act is not applicable in respect of the committee to be constituted for appointment to the post of professor under the Career Page 5 of 18 Downloaded on : Mon Mar 04 20:47:53 IST 2024 NEUTRAL CITATION C/SCA/15733/2010 JUDGMENT DATED: 04/03/2024 undefined Advancement Scheme. He has submitted that the notification issued by the AICTE in consultation with the Government of India, which has been accepted by the Government of Gujarat as well as the University and consequently the committee for grant of promotion under the career advance scheme was to be done in accordance with the said provision and not as per Section 48A. It is submitted by learned counsel for the petitioners that the respondent himself participated in the interview held by the selection committee and not objected the same on any ground whatsoever has acquiesced in the constitution of the committee and cannot be permitted to assail the legality of the same at this stage. According to Mr.Shelat, learned counsel, the impugned order passed by the Tribunal is without jurisdiction and the same deserves to be quashed and set aside and the present petition be allowed.
4.1 Mr.Shelat, learned counsel appearing for the petitioners has relied upon the decisions in the case of Madras Institute of Development Studies and another Vs. K. Sivasubramaniyan and others reported in (2016) 1 SCC 454 and Tajvir Singh Sodhi and others Vs. State of Jammu and Page 6 of 18 Downloaded on : Mon Mar 04 20:47:53 IST 2024 NEUTRAL CITATION C/SCA/15733/2010 JUDGMENT DATED: 04/03/2024 undefined Kashmir and others reported in 2023 SCC OnLine SC 344.
5. Per contra, Mr.Ramnandan Singh, learned counsel appearing for respondent No.1 has submitted that the Tribunal has not committed any error of facts and law in passing the impugned order. He has referred to and relied upon the affidavit- in-reply filed by respondent No.1 and has submitted that though the circular issued by AICTE, Section 48(2) of the M S University Act has not been amended and, therefore, the said circular though adopted by the University has remained contrary to the provisions of Section 48(2) and the Selection Committee constituted is contrary to Section 48(2) and hence, the same was an illegal committee. He has submitted that once the Committee itself is illegal then the recommendation of the Committee as a consequence, cannot be legal. So far as the contention raised by the petitioner that the application was barred by res judicata as no plea under Section 8A of the M S University Act is concerned, learned counsel for respondent No.1 has submitted that it could be pleaded by respondent and the respondent had no knowledge with regard to wrongly constitution of the Committee and as soon as the respondent came to the notice, he filed Application Page 7 of 18 Downloaded on : Mon Mar 04 20:47:53 IST 2024 NEUTRAL CITATION C/SCA/15733/2010 JUDGMENT DATED: 04/03/2024 undefined No.4 of 2010 on the ground of improper constituted committee. He has submitted that the University cannot take advantage of its own wrong by raising plea that why such objection was not taken in earlier round of litigation. He has submitted that the plea of res judicata cannot be raised by the University because the University itself had constituted a committee contrary to the provisions of Section 8A of the M. S. University Act. He has submitted that the respondent had no knowledge regarding the member of the committee who disqualified because of his age at the time of filing Application No.5 of 2008 and there was no evidence or formal information for the age of the said member. He has submitted that though the University did not respond to the complaint made by the respondent, the respondent had no option but to file O.A. No.4 of 2010, which came to be allowed by the Tribunal and hence, Order II Rule 2 of the Code of the Civil Procedure Code cannot be applied in the present case. According to learned counsel for respondent No.1, the Tribunal has rightly interpreted Section 8A and Section 48 of the M. S. University Act holding that the committee constituted to give promotion to the post of professor under the Career Advancement Scheme, must Page 8 of 18 Downloaded on : Mon Mar 04 20:47:53 IST 2024 NEUTRAL CITATION C/SCA/15733/2010 JUDGMENT DATED: 04/03/2024 undefined have to be constituted in terms of the provisions contained under the M. S. University Act. He has submitted that AICTE is not conclusive so far as individual University is concerned and the M. S. University runs as per the M. S. University Act which is a special Act. So far as the contention of the petitioner that the provisions of AICTE should have been followed instead of relying upon the provisions of M. S. University Act is concerned, this contention is misconceived more particularly the petitioner cannot use hide and seek method for this purpose. He has submitted that the University itself is not clear about the interpretation and applicability of the provisions of the M. S. University Act and the Tribunal has rightly interpreted and relied upon the provisions of the Act because the legislative mandate is superior to executive instructions / orders. He has submitted that the Tribunal has passed the order within its jurisdiction and with settled principles of law and the present petition is based on suppression of material facts and there is no case for invoking extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India and, therefore, no interference is required to be called for by this Court. He has submitted that the petition Page 9 of 18 Downloaded on : Mon Mar 04 20:47:53 IST 2024 NEUTRAL CITATION C/SCA/15733/2010 JUDGMENT DATED: 04/03/2024 undefined being meritless deserves to be dismissed.
5.1 Mr.Ramnandan Singh, learned counsel for respondent No.1 has referred to and relied upon the decisions in the case of Alka Gupta Vs. Narendra Kumar Gupta reported in (2010) 10 SCC 141 and Vipinchandra Vadilal Bavishi and another Vs. State of Gujarat and others reported in (2016) 4 SCC 531.
6. In the case of Tajvir Singh Sodhi (supra), relied upon by learned counsel appearing for the petitioners, the Hon'ble Supreme Court has held and observed in para 68 as under:-
"13. The next aspect of the matter which requires consideration is the contention of the writ petitioners to the effect that the entire selection process was vitiated as the eligibility criteria enshrined in the Advertisement Notice dated 5 th May, 2008 was recast vide a corrigendum dated 12th June, 2009, without any justifiable reason. In order to consider this contention, regard may be had to the following case law:
I) In Manish Kumar Shahi vs. State of Bihar, (2010) 12 SCC 576, this Court authoritatively declared that having participated in a selection process without any protest, it would not be open to an unsuccessful candidate to challenge the selection criteria subsequently.
ii) In Ramesh Chandra Shah vs. Anil Joshi, (2013) 11 SCC 309, an advertisement was issued inviting applications for appointment for the post of physiotherapist. Candidates who failed to clear the written test presented a writ petition and prayed for quashing the advertisement and the process of selection. They pleaded that the advertisement and the test were ultra vires the provisions of the Uttar Pradesh Medical Health and Family Welfare Department Page 10 of 18 Downloaded on : Mon Mar 04 20:47:53 IST 2024 NEUTRAL CITATION C/SCA/15733/2010 JUDGMENT DATED: 04/03/2024 undefined Physiotherapist and Occupational Therapist Service Rules, 1998. After referring to a catena of judgments on the principle of waiver and estoppel, this Court did not entertain the challenge for the reason that the same would not be maintainable after participation in the selection process. The pertinent observations of this Court are as under:
"24. In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents."
iii) Similarly, in Ashok Kumar vs. State of Bihar, (2017) 4 SCC 357, a process was initiated for promotion to Class-III posts from amongst Class-IV employees of a civil court. In the said case, the selection was to be made on the basis of a written test and interview, for which 85% and 15% marks were earmarked respectively as per norms. Out of 27 (twenty-seven) candidates who appeared in the written examination, 14 (fourteen) qualified. They were interviewed. The committee selected candidates on the basis of merit and prepared a list. The High Court declined to approve the Select List on the ground that the ratio of full marks for the written examination and the interview ought to have been 90:10 and 45 ought to be the qualifying marks in the written examination. A fresh process followed comprising of a written examination (full marks - 90 and qualifying marks - 45) and an interview (carrying 10 marks). On the basis of the performance of the candidates, results were declared and 6 (six) persons were appointed on Class-III posts. It was thereafter that the appellants along with 4 (four) other unsuccessful candidates filed a writ petition before the High Court challenging the order of the High Court on the administrative side declining to approve the initial Select List. The primary ground was that the appointment process was vitiated, since under the relevant rules, the written test was required to carry 85 marks and the interview 15 marks. This Court dismissed the appeals on the grounds that the appellants were clearly put on notice when the fresh selection process took place that the written examination would carry 90 marks and the interview 10 marks. The Court was of the view that the appellants having participated in the Page 11 of 18 Downloaded on : Mon Mar 04 20:47:53 IST 2024 NEUTRAL CITATION C/SCA/15733/2010 JUDGMENT DATED: 04/03/2024 undefined selection process without objection and subsequently found to be not successful, a challenge to the process at their instance was precluded. The relevant observations are as under:
"13. The law on the subject has been crystalized in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla, this Court laid down the principle that when a candidate appears at an examination without objection and is subsequently found to be not successful, a challenge to the process is precluded. The question of entertaining a petition challenging an examination would not arise where a candidate has appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was a lacuna therein, merely because the result is not palatable. In Union of India v. S. Vinodh Kumar (2007) 8 SCC 100, this Court held that: "18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same (See also Munindra Kumar v. Rajiv Govil (1991) 3 SCC 368 and Rashmi Mishra v. M.P. Public Service Commission (2006) 12 SCC 724)".
7. In the case of Vipinchandra Vadilal Bavishi (dead) by Legal Representatives and another (supra), relied upon by the learned counsel appearing for the respondent, the Hon'ble Supreme Court has held and observed in para 27 as under:-
"27. The submission of the learned counsel appearing for the respondent- State that the writ petition is barred by res judicata is also not sustainable in law. In our considered view, question as to whether the appellants landholders were dispossessed from the land in question and the effect of the Repeal Act on this was not the issue in the earlier writ petition and, therefore, it cannot be held that the instant writ petition is barred by res judicata or constructive res judicata.
8. Having considered the facts and circumstances of the case and considered the submissions canvassed by the learned Page 12 of 18 Downloaded on : Mon Mar 04 20:47:53 IST 2024 NEUTRAL CITATION C/SCA/15733/2010 JUDGMENT DATED: 04/03/2024 undefined counsel appearing for the respective parties and perused the materials on record, it appears that petitioner No.1 is a University constituted under the M.S. University Act and respondent No.1 is holding the post of Reader in the faculty of technology and engineering and All India Council for Technical Education (AICTE) issued Notification dated 03.05.2000 for revision of pay scales whereby the guidelines would be laid down for selection process to be evolved for grant of benefit of career advancement. Thereafter, the AICTE circulated Notification dated 31.07.2001 laying down the guidelines for the process of selection, which provides for constitution of the Selection Committee which would consider the applications under the career advancement scheme. That Syndicate of the petitioner - University considered the guidelines by resolution No.18 dated 31.08.2001 - Appendix 19 issued by the AICTE. The Government of Gujarat issued Government Resolution dated 03.07.2006 in view of the Notification issued by AICTE provided for constitution of the Selection Committee for the purpose of career advancement and the University constituted a Selection Committee. It reveals from the record that thereafter, Page 13 of 18 Downloaded on : Mon Mar 04 20:47:53 IST 2024 NEUTRAL CITATION C/SCA/15733/2010 JUDGMENT DATED: 04/03/2024 undefined respondent No.1 had applied for promotion as professor of Applied Physics in the faculty of Technology and Engineering and he was considered by the Selection Committee, but not recommended for promotion and therefore he was recommended by Selection Committee and the recommendation was placed before the syndicate in its meeting and vide resolution No.14 - 13, the recommendations of the Selection Committee were accepted. It appears that respondent No.1 approached the Gujarat University Services Tribunal by filing Application No.5 of 2008 for quashing and setting aside the decision of the Selection Committee and the syndicate pertaining to the promotion to professor, which came to be dismissed by the Tribunal and respondent No.1 filed Application No.4 of 2010 for quashing and setting aside the selection process on the ground that the Selection Committee was constituted in violation of Section 8 and Section 48 of the M S University Act and for re- constitution of the Selection Committee. The Tribunal after hearing the parties allowed the application.
9. In view of the aforesaid aspects, it emerges from the record that though the circular issued by AICTE, Section 48(2) of the M S Page 14 of 18 Downloaded on : Mon Mar 04 20:47:53 IST 2024 NEUTRAL CITATION C/SCA/15733/2010 JUDGMENT DATED: 04/03/2024 undefined University Act has not been amended and, hence, the circular though adopted by the University is contrary to the provisions of Section 48(2). Once the Committee itself is illegal then the recommendation of the Committee as a consequence, cannot be legal. So far as the contention raised by the petitioners that the application was barred by res judicata as no plea under Section 8A of the M S University Act which could be pleaded by respondent and the respondent had no knowledge with regard to wrong constitution of the Committee and as and when the respondent came to know such fact, he filed Application No.4 of 2010. The University cannot take advantage of its own wrong by raising plea that why such objection was not taken in earlier round of litigation. That the plea of res judicata cannot be raised by the University because the University itself had constituted a committee contrary to the provisions of the University Act and the respondent is no knowledge regarding the member of the committee who disqualified because of his age at the time of filing Application No.5 of 2008 and there was no evidence or formal information for the age of the said member. It also appears that though the University has not responded to the Page 15 of 18 Downloaded on : Mon Mar 04 20:47:53 IST 2024 NEUTRAL CITATION C/SCA/15733/2010 JUDGMENT DATED: 04/03/2024 undefined complaint made by the respondent, he had filed O.A. No.4 of 2010, which came to be allowed by the Tribunal and hence, Order II Rule 2 of the Code of the Civil Procedure Code cannot be applied in the present case. It appears that the Tribunal has rightly interpreted Section 8A and Section 48 of the M. S. University Act holding that the committee constituted to give promotion to the post of professor under the Career Advancement Scheme, must have to be constituted in terms of the provisions contained under the M. S. University Act. That AICTE is not conclusive so far as individual University is concerned and the M. S. University runs as per the M. S. University Act. The University itself is not clear about the interpretation and applicability of the provisions of the M. S. University Act and the Tribunal has rightly interpreted and relied upon the provisions of the Act because the legislative mandate is superior to executive instructions / orders. It appears that the Tribunal has passed the order within its jurisdiction and with settled principles of law and the present petition is based on suppression of material facts and there is no case for invoking extraordinary jurisdiction under Articles 226 and 227 of the Page 16 of 18 Downloaded on : Mon Mar 04 20:47:53 IST 2024 NEUTRAL CITATION C/SCA/15733/2010 JUDGMENT DATED: 04/03/2024 undefined Constitution of India and, therefore, no interference is required to be called for by this Court. The decisions relied upon by the learned counsel appearing for the petitioners are not applicable to the facts of the present case.
10. This Court has gone through the impugned order which is under challenge in this petition. From the impugned order, it appears that the Tribunal has not committed any error of facts and law in passing the order. The relevant observation of the impugned order passed by the Tribunal reads as under:-
"In view of what is stated hereinabove, the action of Opponent No.1 and 2 in constituting Selection Committee qua subject matter and selecting Opponent No.5 for promotion on the post of 'Professor' under Career Advancement Scheme and forwarding the recommendation to the Executive Council of Opponent University and acceptance of th same by Executive Council and any process undertaken in furtherance of the same ahead is hereby quashed and set aside and the petition is hereby allowed to that extent.
In view of this, the interim relief granted in terms of "status-quo" to merge in this final order.
Opponent No.1 and 2 are hereby directed to constitute a fresh Selection Committee in tune of section 48A of M. S. University of Baroda Act, 1949 and to consider the petitioner for promotion on the post of 'Professor' under Career Advancement Scheme, within period of two months from the date of receipt of free copy of this judgment from the office of this Tribunal at the end of them or on receipt of copy of the same by them from petitioner whichever is earlier.Page 17 of 18 Downloaded on : Mon Mar 04 20:47:53 IST 2024
NEUTRAL CITATION C/SCA/15733/2010 JUDGMENT DATED: 04/03/2024 undefined Needless to say that Opponent No.5 also applies and is eligible to be considered and if there is any other candidate eligible to be considered then all are required to be considered along with petitioner.
Rest of the prayers made are not acceptable for the reason that the same are of a nature of the prayers in Petition No.5/08 which came to be dismissed by this Tribunal on merits."
11. In view of the observation of the Tribunal, I am of the opinion that the Tribunal has not committed any error of law and facts in passing the impugned order and hence, the present petition is devoid of merits.
12. For the foregoing reasons, the petition stands dismissed. Rule is discharged. Interim relief, if any, shall stand vacated forthwith. There shall be no order as to costs.
(HEMANT M. PRACHCHHAK,J) FURTHER ORDER After judgment is pronounced, learned counsel appearing for the petitioner would request this Court to continue the interim relief granted earlier by the Coordinate Bench of this Court for some time to challenge the said order. Considering the facts of the case, the request made by learned counsel for the petitioner is not considered and the same hereby is refused.
(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 18 of 18 Downloaded on : Mon Mar 04 20:47:53 IST 2024