Gujarat High Court
Dr.Natverlal Maganlal Patel & vs Anand Agricultural University Anand & on 20 August, 2014
Author: Ravi R.Tripathi
Bench: Ravi R.Tripathi, R.D.Kothari
C/CA/8599/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 8599 of 2014
In MISC.CIVIL APPLICATION (STAMP NUMBER) NO. 1716 of 2014
In LETTERS PATENT APPEAL NO. 391 of 2014
In SPECIAL CIVIL APPLICATION NO. 24267 of 2005
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DR.NATVERLAL MAGANLAL PATEL & 11....Applicant(s)
Versus
ANAND AGRICULTURAL UNIVERSITY ANAND & 1....Respondent(s)
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Appearance:
MR GUNVANT B SHAH, ADVOCATE for the Applicant(s) No. 1 - 3.4 , 4 - 12
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CORAM: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI
and
HONOURABLE MR.JUSTICE R.D.KOTHARI
Date : 20/08/2014
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI) Present Civil Application is filed by the applicants - original petitioners in Special Civil Application No.24267 of 2005 who are appellants in Letters Patent Appeal No.391 of 2014 seeking condonation of delay of 21 days in preferring Misc. Civil Application for review.
It was inquired from learned advocate Mr. Gunvant B. Shah for the applicants as to what is the prayer in Misc. Civil Application.
Learned advocate Mr. Shah invited attention of the Page 1 of 8 C/CA/8599/2014 ORDER Court to para-4(a) of the Misc. Civil Application for review. The same reads as under:
"4(a) to allow this application and review/recall the judgment in delivered on 28-04-2014 by the Division Bench [Coram : Hon'ble Mr. Justice R. R. Tripathi & Hon'ble Mr. Justice R. D. Kothari] of this Hon'ble Court in Letters Patent Appeal No.391 of 2014 in Special Civil Application No.24267 of 2005, after condoning delay of a few days in filing the present application."
Learned advocate strenuously invited attention of the Court to the ground on which the review is sought which is set in the Misc. Civil Application. The same reads as under:
"(A) That it is submitted that it is inter alia laid down in Order XLVII, Rule 1 of the Code of Civil Procedure, 1908, that an application for review is maintainable, if there is an error apparent on the face of the record. It is so in the instant case in the respectful submission of the applicants, who crave leave to point out that it is held in paragraph 20.1 of the judgment of the learned single Judge by way an excerpt from a decision of the Hon'ble Supreme Court of India in State of Orissa & anr. v.
Mamata Mohanty, reported in [2011] 3 SCC 436 that so far as the grant of UGC pay scale is concerned, it cannot be granted prior to the date of acquisition of higher qualification. In the instant case, the applicants nos.3 and 6 did possession the requisite qualifications from the inception, while other applicants other than the applicant no.12 did acquire them on different dates, Page 2 of 8 C/CA/8599/2014 ORDER which are given by way of an affidavit [pages 352 to 356 of the compilation of SCA]. Therefore, the said applicants nos.3 and 6 should have been given higher pay scale from the beginning and the rest other than the applicant no.12 from the respective dates of acquiring the requisite qualification. Thus, the present matter is eminently fit for review. The learned single Judge did observe in paragraph 21 that the petitioners were not entitled to such benefits, unless they satisfy the criteria to make them entitled to the UGC pay scale for the post of professors. When it is so, the above goes to show that as and wen the applicants did possess/acquire the requisite qualification. They deserve to be paid the higher pay scale. Thus, for present matter is eminently fit for review, application for which may kindly be entertained and allowed."
Learned advocate was requested to substantiate the aforesaid ground.
Learned advocate invited attention of the Court to para 20.1 and 21 of the judgment of the learned Single Judge in Special Civil Application No.24267 of 2005 and allied matters which reads as under:
"20.1. In the case of State of Orissa and Another Vs. Mamata Mohanty reported in (2011)3 SCC 436, the Honble Supreme Court has held and observed in paragraph Nos.68(xii), 69 and 70, as under:-
"68. (xii) This Court in Damodar Nayak (supra) Page 3 of 8 C/CA/8599/2014 ORDER has categorically held that a person cannot get the benefit of grant-in-aid unless he completes the deficiency of educational qualification. Further, this Court in Dr. Bhanu Prasad Panda (AIR 2001 SC 3324 : (2001 AIR SCW 3554) (supra) upheld the termination of services of the appellant therein for not possessing 55% marks in Master Course.
69. In view of the above, it stands crystal clear that a teacher who had been appointed without possessing the requisite qualification at initial stage cannot get the benefit of grant-
in-aid scheme unless he acquires the additional qualification and, therefore, question of grant of UGC pay scale would not arise in any circumstance unless such teacher acquires the additional qualification making him eligible for the benefit of grant-in-aid scheme. The cumulative effect therefore comes to that such teacher will not be entitled to claim the UGC pay scale unless he acquires the higher qualification i.e. M.Phil/Ph.D.
70. In the facts and circumstances of the case, we feel that terminating the services of those who had been appointed illegally and/or withdrawing the benefits of grant-in-aid scheme of those who had not completed the deficiency in eligibility/educational qualification or withdrawing the benefit thereof from those who had been granted from the date prior to completing the deficiency, may not be desirable as a long period has elapsed. So far as the grant of UGC pay scale is concerned, it cannot be granted prior to the date of acquisition of higher qualification. In view of the above, the impugned judgment/order cannot be sustained in the eyes of law.
21. In light of the above principles of law and since the Page 4 of 8 C/CA/8599/2014 ORDER University after adopting UGC pay scale decided to give benefit thereof subject to compliance of the criteria laid down by it for the teachers, the petitioners were not entitled to such benefit unless they satisfied the criteria to make them entitled to the UGC pay scale for the post of Professors."
Learned advocate Mr. Shah then invited attention of the Court to the reply filed by respondent no.1 - Shri Victor S/o Peter Macwan, Registrar of the Anand Agricultural University in Special Civil Application along with annexures which runs up to page 157 to 198.
Learned advocate Mr. Shah invited attention of the Court to para-15 of the said affidavit and emphasis the following portion of para-15.
"15. ..... Admittedly, the petitioners were not fulfilling the requisite qualification of Ph. D. Degree nor they were possessing the status of Professor as on 1-6-1972. Therefore, the claim of the petitioners is absolutely fas,e frivolous and vexatious and liable to be rejected in toto."
Learned advocate Mr. Shah submitted that respondents have admitted in the reply that petitioners had possessed the requisite qualification and therefore they are entitled for the revised pay-scale of UGC if not from the date of their promotion to the post of Professor, at least they are entitled to receive the benefit of revised pay-scale of UGC from the date of their acquiring the Ph.D. qualification.
Page 5 of 8 C/CA/8599/2014 ORDERThe Court is not able to agree with the aforesaid submission because it does not convey that meaning.
Learned advocate Mr. Shah also invited attention of the Court to para-21 at page -171 of the affidavit and emphasis the following portion of para-21.
"21. ..... It is respectfully submitted that the Teachers who had acquired qualification of Ph. D. within the prescribed period of 5 years, they had been granted the benefit of Professor from the date on which they had acquired the qualification of Ph. D. I respectfully submit that the petitioners are not entitled for the pay scale of Professor from the date of their appointment as Professor as they were not possessing the requisite qualification of Ph. D. and experience on that date and the Notification has no application in the facts of this case." (Emphasis Supplied).
Learned advocate Mr. Shah submitted that the teachers who had acquired qualification of Ph. D. within 5 years had been granted benefit of Professor but the petitioners are not granted that benefit.
The Court is unable to understand the submission made by learned advocate Mr.Shah. The statement made in the affidavit-in-reply is very simple and clear. It says that the teachers who had acquired Ph. D. degree qualification within the prescribed period of five years had been granted the Page 6 of 8 C/CA/8599/2014 ORDER benefit of Professor from the date of acquiring Ph. D. degree qualification.
Now, the contention that thought the petitioners have acquired Ph. D. qualification, they are not given the said benefit is a pure question of fact and in the affidavit dated 19/03/2006, it was confirmed. (Emphasis Supplied).
Now, in 2014, to pray for review, on the ground that the aforesaid fact is not correct, cannot be accepted by this Court.
Learned advocate Mr. Shah submitted that may be that the reply is too long and and learned advocate might have missed.
Assuming for the sake of argument that learned advocate Mr. Shah is correct, the Civil Procedure Code (CPC) does not provide for review of the judgment of this Court on this ground.
In the result, this Court is of the opinion that there is no ground for review of the judgment of this Court. There being no sufficient cause for condonation of delay, the application fails.
Present Civil Application is dismissed. Consequently the Misc. Civil Application for review which is already examined by this Court fails.
(RAVI R.TRIPATHI, J.) Page 7 of 8 C/CA/8599/2014 ORDER (R.D.KOTHARI, J.) ila Page 8 of 8