Beena Ambalal Mahida vs The President/Secretary & 2 on 3 August, 2016

[Cites 21, Cited by 1]

Gujarat High Court

Beena Ambalal Mahida vs The President/Secretary & 2 on 3 August, 2016

HC-NIC Page 1 of 24 Created On Sat Aug 06 03:12:34 IST 2016 C/SCA/19128/2015 CAV JUDGMENT By this application under Article 227 of the Constitution of India, the applicant, a former Lecturer in a college, has prayed for the following reliefs :

"(A) that the Honourable Court be pleased to issue a writ of certiorari and/or a writ in the nature of certiorari or any other appropriate writ, order or direction to quash and set aside the order dated 19.10.2015 passed by the learned Gujarat Educational Institutions Services Tribunal, Ahmedabad in Appeal No.308 of 2014 (Old Application No.12/2014).

(B) that the Honourable Court be pleased to declare the termination letter dated 23.1.2014, issued by respondent no.1 herein as illegal and be further pleased to quash and set aside the same and reinstate the petitioner to the post of Principal with all consequential benefits.

(C) that pending the hearing and final disposal of this petition, the Honourable Court be pleased to stay the operation, implementation and execution of the termination letter dated 23.1.2014, issued by respondent no.1 and order dated 19.10.2015 passed by the learned Gujarat Educational Institutions Services Tribunal, Ahmedabad in Appeal No.308/2014 (Old Application No.12/2014).

(D) for costs;

(E) for such other and further reliefs as the circumstances of case may require."

The case of the applicant may be summarised as under :

The applicant was appointed as a Lecturer in the Anand Arts College, run and managed by the respondent no.1 -

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HC-NIC Page 2 of 24 Created On Sat Aug 06 03:12:34 IST 2016 C/SCA/19128/2015 CAV JUDGMENT Mandal. She was appointed on 7th December 1995. The college wanted to appoint a new Principal as one Shri M.R.Patel resigned from the post of the Principal. In this regard, permission was sought for from the Commissioner of Higher Education. By letter dated 27th December 2011, the college was granted the permission to appoint the new Principal. The respondent no.3 published an advertisement dated 15th May 2012 for the appointment of Principals in various colleges. The applicant applied for the post of Principal and was appointed as the Principal of the Anand Arts College, run and managed by the respondent no.1 Trust. The Anand Arts College is a grant- in-aid college. The applicant was issued the appointment letter dated 15th May 2012. She resumed her service with effect from 16th May 2012.

It is the case of the applicant that in the year 2013 many letters were addressed by the Secretary of the Trust seeking explanation from the applicant on various issues like discrepancies in accounts, etc. According to the applicant, she had responded to all those letters by offering appropriate explanation.

It is the case of the applicant that she had to complain before the Principal Secretary, Department of Social Justice and Empowerment, State of Gujarat as regards the harassment which was being caused to her as she belonged to the 'Dalit' community. Appropriate action in that regard was taken and an FIR bearing II-CR No.3019 of 2014 was lodged at the Anand Town Police Station. The applicant, thereafter, was served with an order dated 23rd January 2014, terminating her service. The Page 3 of 24 HC-NIC Page 3 of 24 Created On Sat Aug 06 03:12:34 IST 2016 C/SCA/19128/2015 CAV JUDGMENT applicant challenged her termination before the Gujarat Affiliated Colleges Tribunal, Ahmedabad, by filing Appeal No.308 of 2014. Before the Tribunal, interim relief was also prayed for. However, the interim relief was declined.

Being dissatisfied with the order passed by the Tribunal declining the interim relief, the applicant preferred the Special Civil Application No.12603 of 2015 before this Court. The said writ-application came to be disposed of by this Court vide order dated 10th August 2015 in the following terms :

"Without going into the merit of the impugned order, I am of the view that the Tribunal should take up the main application for hearing and dispose of the same in accordance with law. In such circumstances referred to above, the impugned order is quashed. The Tribunal shall decide the main application as expeditiously as possible, without being influenced in any manner by any of the observations made in the impugned order. I am of the view that the interest of the petitioner is well protected and at the same time, no prejudice would be caused to the respondent No.1. It is expected of the Tribunal to dispose of the main application within a period of three months from the date of the receipt of the writ of this order. The parties to the proceedings shall extend full cooperation to the Tribunal for effective disposal of the matter. Direct service permitted."

The Tribunal, thereafter, took up the main matter for hearing, and by the impugned order dated 19th October 2015, dismissed the appeal filed by the applicant. Being dissatisfied, the applicant has come up with this application invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.

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HC-NIC Page 4 of 24 Created On Sat Aug 06 03:12:34 IST 2016 C/SCA/19128/2015 CAV JUDGMENT Mr.Syed, the learned counsel appearing for the applicant, vehemently submitted that the impugned order passed by the Tribunal is erroneous and contrary to the settled position of law. Mr.Syed submitted that the Tribunal committed a serious error in taking the view that the UGC Regulations have not been accepted by the State of Gujarat and, therefore, were not applicable so far as the termination of the applicant from service is concerned. Mr.Syed submitted that in the letter of approval of the appointment issued by the State dated 27th December 2011, there is a reference of the UGC Regulations dated 30th June 2010 and also of the Government Resolution dated 29th September 2011. In the said approval, it has been stated that the UGC Regulations are applicable in the State of Gujarat. Mr.Syed further pointed out that in the Government Resolution dated 29th September 2011, it has been stated that the Ordinance of the University Statute shall be amended according to the UGC Regulations with a view to obviate the conflict between the two, if any. According to Mr.Syed, the UGC Regulations provided that the minimum period of probation shall be one year extendable by a maximum period of one year in case of unsatisfactory performance. The confirmation at the end of one year shall be automatic unless extended for another year by a specific year before the expiry of the first year. According to Mr.Syed, it was obligatory on the part of the University/Institution to have issued the confirmation order within 45 days of the completion of the probationary period.

The argument of Mr.Syed is that since the applicant served for one year and eight months, she could be deemed to Page 5 of 24 HC-NIC Page 5 of 24 Created On Sat Aug 06 03:12:34 IST 2016 C/SCA/19128/2015 CAV JUDGMENT have been confirmed in service and her service could not have been terminated treating her as on probation.

It has been argued that the State as well as the University was obliged to amend their statutes in consonance with the UGC Regulations. Having failed to do so, the UGC Regulations would prevail over the State and University Statute.

Mr.Syed, in support of his submissions, has placed strong reliance on the decision of the Supreme Court in the case of Kalyani Mathivanan v. K.V.Jeyaraj, (2015)6 SCC 363.

In such circumstances referred to above, Mr.Syed prays that there being merit in this application, the same may be allowed and the impugned order be quashed.

On the other hand, this application has been vehemently opposed by Mr.S.N.Shelat, the learned senior advocate appearing for the respondent no.1, and the learned AGP appearing for the respondent no.3. Mr.Shelat submitted that no error, not to speak of any error of law, could be said to have been committed in passing the impugned order. Mr.Shelat submitted that the applicant had accepted the appointment with eyes wide open. She knew the terms and conditions which were made applicable so far as her appointment was concerned. Mr.Shelat submitted that while issuing the 'No Objection Certificate', the State Government, in condition no.15, made it very clear that the initial two years would be Page 6 of 24 HC-NIC Page 6 of 24 Created On Sat Aug 06 03:12:34 IST 2016 C/SCA/19128/2015 CAV JUDGMENT the probation period and only after assessment of the performance, the final order shall be passed to continue the appointee on the long term basis. According to Mr.Shelat, the probation period was to come to an end on 15th April 2014. Before 15th April 2014, the performance of the applicant was assessed and was found to be not satisfactory. In such circumstances, the period of probation was put to an end. Mr.Shelat submitted that the applicant is governed by the statute of the Sardar Patel University, which provides for the conditions of service. According to Mr.Shelat, having taken the benefit of the beneficial condition of the service, it would not be proper on the part of the applicant to turn around and say that she was being governed by the UGC Regulations and, therefore, on expiry of the first year of service she could be said to have been confirmed on long term basis. According to Mr.Shelat, the decision of the Supreme Court in the case of Kalyani Mathivanan (supra) would not apply as in the said decision it has been made clear by the Supreme Court that the UGC Regulations are directory for the universities, colleges and other higher educational institutions under the purview of the State Legislation as the matter has been left to the State Government to adopt and implement the scheme. According to Mr.Shelat, the UGC Regulations are partly mandatory and partly directory.

In support of his submissions, Mr.Shelat has placed reliance on the following decisions :

(i) High Court of Madhya Pradesh thru. Registrar and others v. Satya Narayan Jhavar, AIR 2001 SC 3234;

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(ii) Gyanendra Sahay v. Tata Iron and Steel Co. Ltd., AIR 2006 SC 2795;

(iii) Ramesh Chandra Shah and others v. Anil Joshi and others, AIR 2013 SC 1613;

(iv) State of Punjab and others v. Dhanjit Singh Sandhu, AIR 2014 SC 3004 In such circumstances referred to above, Mr.Shelat prays that there being no merit in this application, the same be rejected.

Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the Tribunal committed any error in passing the impugned order.

Let me first look into the letter dated 27 th December 2011 of the respondent no.3 - Commissioner of Higher Education according permission to the respondent no.1 to appoint the Principal in the college. There are two conditions imposed in the said letter which are relevant for our purposes :

Condition no.10 reads as under :

"10. As per the resolutions of the Education Department issued time to time and as per the recommendations of the UGC Regulations 2010 the functions and duties assigned to the Principal have to be implemented."

Condition no.15 reads as under :

"15.Orders to continue further an appointee or not will be issued by this office only after considering the opinion and assessment of the management Page 8 of 24 HC-NIC Page 8 of 24 Created On Sat Aug 06 03:12:34 IST 2016 C/SCA/19128/2015 CAV JUDGMENT and after satisfying itself that the appointee has satisfactorily served for two years."

Let me now look into the conditions of service for teachers of the affiliated college as provided under the Sardar Patel University Statutes 201.I. The statute 201.I reads as under :

"201.I Rules regarding appointment, confirmation and termination of service:

Appointments of teachers other than temporary appointment shall be governed by the following terms and conditions :

(i) All appointments of teachers in the colleges shall be made on probation which shall not be more than 24 months. The Governing body of the college may, for reasons to be recorded, waive the condition of probation.

The Governing shall have the right to assess the suitability of a teacher for confirmation even before the expiry of 24 months from the date of appointment of a teacher, but not earlier than nine months from that date.

(ii) The college management shall give a written appointment letter to every employee wherein the designation, pay scale, starting salary along with allowance and nature of appointment, i.e. probationary, temporary or permanent, shall invariably be stated. The employee shall submit a duly signed acceptance to the appointing authority within the stipulated period specified in the letter of appointment.

(iii) All cases for confirmation will ordinarily be placed before the appropriate authority of the college three months before the expiry of the probationary period. One month's notice or salary in lieu thereof shall be given to the teacher if his service is terminated during the period of probation.

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(iv) An employee on probation, whose work and conduct are found satisfactory shall be confirmed before the completion of the period of probation. He shall be deemed to have been confirmed on completion of the probationary period even if the college! institution has failed to send him a letter of confirmation unless he has been served with a notice before the completion of his probationary period terminating his service.

(v) Service during the probationary period shall be counted as approved service for the purpose of granting increment to an employee in the grade in which he is appointed.

(vi) An employee appointed to temporary post or in the leave vacancy in respect of a permanent post shall not be considered for confirmation in service unless the post to which he has been appointed, subsequently becomes a permanent post or the leave vacancy becomes a permanent vacancy.

(vii) If the employee who is not confirmed in service, wishes to resign from service. he shall give one month's notice in writing to the college or institution. The college or institution shall be entitled to recover one month's salary in lieu of notice if the employee fails to give such notice; provided, however, no notice of resignation shall be necessary in respect of purely temporary appointments of a duration of less than six months."

Let me now look into the UGC Regulation no.11.0, which provides for the period of probation and confirmation.

"11.0 PERIOD OF PROBATION AND CONFIRMATION 11.1 The minimum period of probation shall be one year extendable by a maximum period of one more year in case of unsatisfactory performance.

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HC-NIC Page 10 of 24 Created On Sat Aug 06 03:12:34 IST 2016 C/SCA/19128/2015 CAV JUDGMENT 11.2 The confirmation at the end of one year shall be automatic, unless extended for another year by a specific order, before expiry of the first year.

11.3 Subject to this Clause 11, it is obligatory on the part of the university/the concerned institution to issue an order of confirmation to the incumbents within 45 days of completion of probationary period after due process of verification of satisfactory performance."

Let me now look into the additional affidavit filed on behalf of the respondent no.1 :

"6. With respect to para 4(B) of the petition, I say and submit that the finding of the Hon'ble Tribunal on UGC Regulation is not fully accepted by the State of Gujarat is just and proper and it appears that contention taken in this paragraph is based on improper appreciation of the G.R. dated 29.9.2011. On the contrary, the Government Resolution dated 29.9.2011 is very clear that educational qualification is required to be fixed as per UGC Regulation 2010 and more particularly which is stated in para 4.2.0. The Resolution does not state that after even appointment, all the terms and conditions which are provided in the UGC Regulation are to be mandatorily followed. In fact, UGC Regulation itself states that some part is mandatory and some part is directory.

7. With respect to para 4(C) of the petition, I say and submit that the Hon'ble Tribunal committed no error in recording the finding that the State of Gujarat has not accepted the UGC Regulation fully.

8. With respect to para 4(D) of the petition, I say and submit that the State of Gujarat has not accepted the UGC Regulation in toto and therefore, the conditions which were incorporated in the NOC granted by respondent no.3 was with condition that the employee appointed would be on probation period for two years.

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HC-NIC Page 11 of 24 Created On Sat Aug 06 03:12:34 IST 2016 C/SCA/19128/2015 CAV JUDGMENT Hence, the Hon'ble Tribunal has rightly interpreted the provisions of UGC in the facts of this case.

9. With respect to para 4(E) of the petition, I say and submit that once the State Government has not accepted the UGC Regulation fully, there is no question of applicability of the judgment of Hon'ble Supreme Court reported in (2015)6 SCC 363."

Thus, the picture that emerges from the above is that the applicant was treated to be on probation for a period of two years from the date of her appointment. The appointment letter is dated 15th May 2012. The period of two years would have expired on 15th May 2014. Before that, the services of the applicant were put to an end on the ground that the performance of the applicant as the Principal was not satisfactory.

I am not impressed by the argument of the learned counsel appearing for the applicant that as the UGC Regulations provide for a minimum period of probation of one year extendable by a maximum period of one more year in case of unsatisfactory performance, and since the applicant had put in service of one year and eight months, she could be said to have been confirmed at the end of one year as there was no specific order extending the period before the completion of the first year. In a way, the statute 201 is more beneficial compared to the UGC Regulation no.11. According to the statute 201, the minimum period of probation is 24 months. In my view, the decision of the Supreme Court in the case of Kalyani Mathivanan (supra) is not helpful to the applicant. In the said case, the High Court had set-aside the Page 12 of 24 HC-NIC Page 12 of 24 Created On Sat Aug 06 03:12:34 IST 2016 C/SCA/19128/2015 CAV JUDGMENT appointment of the appellant Kalyani Mathivanan as the Vice Chancellor of the University on account of non-fulfillment of the eligibility criteria contained in clause 7.3.0 of the UGC Regulations and rejected the plea that they were not mandatory. The Supreme Court found that the UGC Regulations had not been adopted or implemented by the State Government nor the University Act had been amended in terms of the UGC Regulations nor any action was taken by the University Grants Commission under Section 14 of the UGC Act as a consequent of the failure of the University to comply with the recommendations of the University Grants Commission. In such circumstances, the Supreme Court upheld the appointment of the Vice Chancellor and set-aside the order of the High Court. While allowing the appeal, the Supreme Court made the following observations :

"56. We have noticed and held that UGC Regulations, 2010 is not applicable to the Universities, Colleges and other higher educational institutions coming under the purview of the State Legislature unless State Government wish to adopt and implement the Scheme subject to the terms and conditions therein. In this connection, one may refer paragraph 8(p)(v) of Appendix-I dated 31st December, 2008 and Regulation 7.4.0 of UGC Regulations, 2010.

57. It is also not the case of the respondents that the Scheme as contained in Appendix-I to the Annexure of UGC Regulations, 2010 has been adopted and implemented by the State Government. It is also apparent from the facts that University Act has not been amended in terms of UGC Regulations, 2010 nor was any action taken by the UGC under Section 14 of UGC Act, 1956 as a consequence of failure of University to comply with the recommendations of the Commission under Section 14 of the UGC Act, 1956.

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58. Almost similar Public Interest Litigation was filed before the High Court of Judicature at Bombay being Public Interest Litigation (Lodging) No. 80 of 2011 Suresh Patilkhede v. The Chancellor, Universities of Maharashtra (2013 Lab IC 455) (supra). In the said case the writ petitioner challenged the appointment of Search Committee for recommending the panel of suitable person for selection of Vice-Chancellor of Pune University on the ground that the appointment of the Search Committee by the Chancellor in accordance with the provisions of Section 12 of the Maharashtra University Act is not in conformity with the provisions of Regulation 7.3.0 of the UGC Regulations, 2010 made under the UGC Act.

59. In the said case also, State of Maharashtra and the Chancellor of Pune University while opposing the writ petition had taken a plea that UGC Regulations, 2010 being in the nature of subordinate Legislation cannot override the provisions of Section 12 of the Maharashtra University Act, 1994, which is a preliminary Legislation made by the State Legislature. In the said case the Bombay High Court held:

"16.......Applying the aforesaid test of "direct impact on the standard of Education" and the principles laid down in the aforesaid decisions, we are of the view that the qualifications and the method of appointment for the post of Pro-Chancellor and Vice-Chancellor of a University cannot be considered as having "direct impact on the standards of education.

17. We are, accordingly, of the considered view that Regulations 7.2.0 and 7.3.0 of UGC Regulations for appointment of Pro-Chancellor and Vice-Chancellor of the University governed by UGC Act cannot be treated as falling under Clauses (e) and (g) of Section 26(1) of the UGC Act, 1956."

60. The Bombay High Court further held:

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HC-NIC Page 14 of 24 Created On Sat Aug 06 03:12:34 IST 2016 C/SCA/19128/2015 CAV JUDGMENT "46. As already held by us, Regulations 7.2.0 and 7.3.0 of UGC Regulations, 2010 are traceable to Section 12(d) of UGC Act, 1956. The same are not without any authority of law but at the same time, they are merely recommendatory in nature and, therefore, neither the State Legislature nor the State Government is bound to accept the same.

Accordingly, when the State Government issued order dated 15th February, 2011 at Exhibit 'F' enumerated those regulations which are adopted by the State Government out of UGC Regulations, 2010, the State Government decided not to adopt Regulations 7.2.0 and 7.3.0. We, therefore, find considerable substance in the argument of learned Advocate General that non-adoption of directory Regulation 7.3.0 would not render the State legislation or the Government order dated 15th February, 2011 invalid or unconstitutional.

47. To sum up-

(i) Regulation 7.3.0 of UGC Regulations, 2010 is not traceable to clause (e) or clause (g) of Section 26(1) of the University Grants Commission Act, 1956.

(ii) The source of making Regulation 7.3.0 of UGC Regulations, 2010 is Section 12(d) and (j) of UGC Act, 1956. However, since Section 12(d) and (j) of UGC Act merely enables UGC to make recommendations to Universities, Regulation 7.3.0 has to be treated as recommendatory in nature.

(iii) Regulation 7.3.0 of UGC Regulations, 2010 being a subordinate legislation under an Act of Parliament cannot override plenary legislation enacted by the State Legislature and, therefore, also Regulation 7.3.0 does not override, Section 12 of the Maharashtra Universities Act, 1994."

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61. We do not agree with the finding of the Bombay High Court that Regulation 7.3.0 of the UGC Regulations, 2010 is not traceable to clause (e) or (g) of Section 26(1) of UGC Act, 1956. We also refuse to agree that Regulation 7.3.0 of the UGC Regulations, 2010 being a sub-ordinate legislation under the Act of Parliament cannot override the preliminary legislation enacted by the State Legislature. However, the finding of the Bombay High Court that Regulation 7.3.0 has to be treated as recommendatory in nature is upheld insofar as it relates to Universities and Colleges under the State Legislation.

62. In view of the discussion as made above, we hold:

(i) To the extent the State Legislation is in conflict with Central Legislation including sub-

ordinate legislation made by the Central Legislation under Entry 25 of the Concurrent List shall be repugnant to the Central Legislation and would be inoperative.

(ii) The UGC Regulations being passed by both the Houses of Parliament, though a sub-ordinate legislation has binding effect on the Universities to which it applies.

(iii) UGC Regulations, 2010 are mandatory to teachers and other academic staff in all the Central Universities and Colleges thereunder and the Institutions deemed to be Universities whose maintenance expenditure is met by the UGC.

(iv) UGC Regulations, 2010 is directory for the Universities, Colleges and other higher educational institutions under the purview of the State Legislation as the matter has been left to the State Government to adopt and implement the Scheme.

Thus, UGC Regulations, 2010 is partly mandatory Page 16 of 24 HC-NIC Page 16 of 24 Created On Sat Aug 06 03:12:34 IST 2016 C/SCA/19128/2015 CAV JUDGMENT and is partly directory.

(v) UGC Regulations, 2010 having not adopted by the State Tamil Nadu, the question of conflict between State Legislation and Statutes framed under Central Legislation does not arise. Once it is adopted by the State Government, the State Legislation to be amended appropriately. In such case also there shall be no conflict between the State Legislation and the Central Legislation."

Relying on the observations made by the Supreme Court in paragraphs 61.1 to 62.5, the Tribunal took the view that the UGC Regulations 2010 are directory for the universities, colleges and other higher educational institutions under the purview of the State Legislation. The Tribunal also noted that there was nothing to indicate that the UGC Regulations 2010 had been fully adopted by the State Government and appropriate amendment had been carried out in the University statute. In my view, while recording such a finding, the Tribunal committed no error, not to speak of any error of law, warranting any interference at my end in exercise of my supervisory jurisdiction under Article 227 of the Constitution of India.

The case in hand is not one where the minimum qualifications prescribed by the UGC for the appointment of teachers and other academic staff has been compromised or deviated. The issue is only with regard to the period of probation. According to the University statute, the minimum period of probation is two years whereas the UGC Regulations provide for a minimum period of one year extendable by a Page 17 of 24 HC-NIC Page 17 of 24 Created On Sat Aug 06 03:12:34 IST 2016 C/SCA/19128/2015 CAV JUDGMENT maximum period of one more year in case of unsatisfactory performance. The UGC Regulations provide that the confirmation at the end of one year would be automatic unless extended for another year by a specific order before the expiry of the first year. The applicant wants to take the advantage of the fact that she had completed one year of service and there was no order passed extending the period of probation for one more year before the expiry of the first year.

As observed above, the UGC Regulations, in my view, will not apply in view of what has been observed above.

Let me assume for the moment that the UGC Regulations are applicable and should have been made applicable in the case of the applicant. The question of deemed confirmation in service jurisprudence, which is dependent upon the language of the relevant service rules, has been a subject matter of consideration before the Supreme Court and there are three lines of cases on this point. One line of cases is, where in the service rules or the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation, and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases, there is no bar against the termination at any point of time after the expiry of the period of probation. The other line of cases is that where while there was a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend the probation. The inference in such Page 18 of 24 HC-NIC Page 18 of 24 Created On Sat Aug 06 03:12:34 IST 2016 C/SCA/19128/2015 CAV JUDGMENT cases is that the officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry the order of termination has not been passed. The last line of cases is where although under the rules the maximum period of probation is prescribed, yet the same require a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor the person concerned has passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired. (see High Court of Madhya Pradesh v. Satya Narayan Jhavar, AIR 2001 SC 3234).

In the 'No Objection Certificate', or rather, in the letter according the permission to the college to appoint the Principal, a specific condition was provided that the appointee will be on probation for a period of two years and only after the assessment of his work and performance, such appointee shall be continued on the long term basis. The condition no.10 in the communication dated 27th December 2011, on which strong reliance has been placed by the applicant, only talks about the functions and duties of the Principal as prescribed by the different Government Resolutions and the UGC Regulations 2010.

Let me now look into the decisions on which reliance has been placed by Mr.Shelat, the learned senior advocate appearing for the respondent no.1. All the decisions are on the Page 19 of 24 HC-NIC Page 19 of 24 Created On Sat Aug 06 03:12:34 IST 2016 C/SCA/19128/2015 CAV JUDGMENT principle that the doctrine of election is based on the rule of estoppel. The principle that one cannot approbate or reprobate.

In State of Punjab (supra), the Supreme Court observed in paragraphs 22 to 25 as under :

"22. The doctrine of " approbate and reprobate" is only a species of estoppel, it implies only to the conduct of parties. As in the case of estoppel it cannot operate against the provisions of a statute. (vide C.I.T. v. Mr. P. Firm Maur, AIR 1965 SC 1216).

It is settled proposition of law that once an order has been passed, it is complied with, accepted by the other party and derived the benefit out of it, he cannot challenge it on any ground. (Vide Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service, Amravati and Ors., AIR 1969 SC 329). In R.N. Gosain v. Yashpal Dhir, AIR 1993 SC 352, this Court has observed as under:-

"Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that " a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage."

23. This Court in Sri Babu Ram alias Durga Prasad v. Sri Indra Pal Singh (dead) by LRs., AIR 1998 SC 3021, and P. R. Deshpande v. Maruti Balram Haibatti, AIR 1998 SC 2979, the Supreme Court has observed that the doctrine of election is based on the rule of estoppel - the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species Page 20 of 24 HC-NIC Page 20 of 24 Created On Sat Aug 06 03:12:34 IST 2016 C/SCA/19128/2015 CAV JUDGMENT of estoppel in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had.

24. The Supreme Court in The Rajasthan State Industrial Development and Investment Corporation and Anr. v. Diamond and Gem Development Corporation Ltd. and Anr., AIR 2013 SC 1241, made an observation that a party cannot be permitted to " blow hot and cold" , " fast and loose" or " approbate and reprobate" . Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience.

25. It is evident that the doctrine of election is based on the rule of estoppel the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when it is his duty to speak, from asserting a right which he would have otherwise had."

Thus, even applying the principle explained by the Supreme Court in the decision of the State of Punjab (supra), the applicant herein is precluded by way of her actions and conduct in asserting that the UGC Regulations were applicable and not the University statute.

Having accepted the appointment without any objection of any nature, the applicant cannot turn around and say that the University statute is not applicable and that the UGC Page 21 of 24 HC-NIC Page 21 of 24 Created On Sat Aug 06 03:12:34 IST 2016 C/SCA/19128/2015 CAV JUDGMENT Regulations are applicable. I have already discussed why the UGC Regulations are not applicable.

Besides the above, I should be conscious of the fact that I am looking into the legality and validity of an order passed by a tribunal. The legality and validity is being examined by me in exercise of my supervisory jurisdiction under Article 227 of the Constitution of India.

I take notice of the observations made by the Supreme Court in the case of Ishwarlal Mohanlal Thakkar vs. Paschim Gujarat Vij Company Limited & Anr., (2014) 6 SCC 434.

"15. The High Court has erred in its exercise of power under Article 227 of the Constitution of India to annul the findings of the labour court in its Award as it is well settled law that the High Court cannot exercise its power under Article 227 of the Constitution as an appellate court or re-appreciate evidence and record its findings on the contentious points. Only if there is a serious error of law or the findings recorded suffer from error apparent on record, can the High Court quash the order of a lower court. The Labour Court in the present case has satisfactorily exercised its original jurisdiction and properly appreciated the facts and legal evidence on record and given a well reasoned order and answered the points of dispute in favour of the appellant. The High Court had no reason to interfere with the same as the Award of the labour court was based on sound and cogent reasoning, which has served the ends of justice.

16. It is relevant to mention that in the case of Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil1, with regard to the limitations of the High Court to exercise its jurisdiction under Article 227, it was held in para 49 that-

"The power of interference under Art.227 is to be kept to a minimum to ensure that the wheel of Page 22 of 24 HC-NIC Page 22 of 24 Created On Sat Aug 06 03:12:34 IST 2016 C/SCA/19128/2015 CAV JUDGMENT justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court."

It was also held that-

"High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Art.227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it."

Thus it is clear, that the High Court has to exercise its power under Article 227 of the Constitution judiciously and to further the ends of justice.

17. In the case of Harjinder Singh v. Punjab State Warehousing Corporation2, this Court held that, "20....In view of the above discussion, we hold that the learned Single Judge of the High Court committed serious jurisdictional error and unjustifiably interfered with the award of reinstatement passed by the Labour Court with compensation of Rs.87,582 by entertaining a wholly unfounded plea that the appellant was appointed in violation of Articles 14 and 16 of the Constitution and the Regulation.

18. The power of judicial review of the High Court has to be alluded to here to decide whether or not the High Court has erred in setting aside the judgment and order of the labour court. In the case of Heinz India Pvt. Ltd. & Anr. v. State of UP this Court referred to the position held on the power of judicial review in the case of Reid v. Secretary of State for Scotland4, wherein it is stated that :-

"Judicial review involves a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view to forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it Page 23 of 24 HC-NIC Page 23 of 24 Created On Sat Aug 06 03:12:34 IST 2016 C/SCA/19128/2015 CAV JUDGMENT had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from the procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decisions itself it may be found to be perverse or irrational or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or of sufficient evidence, to support it, or through account being taken of irrelevant matter, or through a failure for any reason to take account of a relevant matter, or through some misconstruction of the terms of the statutory provision which the decision maker is required to apply. But while the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies it is perfectly clear that in case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view of evidence.""

In the overall view of the matter, I have reached to the conclusion that the order of the Tribunal should not be disturbed. As a result, this application fails and is hereby rejected. Rule discharged.

(J.B.PARDIWALA, J.) MOIN Page 24 of 24 HC-NIC Page 24 of 24 Created On Sat Aug 06 03:12:34 IST 2016

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Gujarat High Court