Gujarat High Court
R.M vs Vice on 9 July, 2008
Author: Anant S. Dave
Bench: Anant S. Dave
SCA/8130/2008 6/ 8 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8130 of 2008 ============================================ R.M. CHAUHAN - Petitioner(s) Versus VICE CHANCELLOR- S.D. AGRICUL-TURAL UNIVERSITY & 3 - Respondent(s) ============================================ Appearance : MS SANGEETA PAHWA FOR M/S THAKKAR ASSOC. for Petitioner(s) : 1, MR MITUL K SHELAT for Respondent(s) : 1 - 2. NOTICE SERVED BY DS for Respondent(s) : 3 - 4. MR GM JOSHI for Respondent(s) : 4, ============================================ CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 09/07/2008 ORAL ORDER
1. The short question for consideration by this Court is that whether the petitioner has any legal right to hold the post of a Principal of Chimanbhai Patel, Krishi Mahavidhyalaya of Sardar Krushinagar Dantiwada Krushi University, Sardar Krushinagar on the basis of office order dated 30.4.2007 passed by the Registrar of the University.
2. While passing the above order, the Registrar had taken into consideration the decision of the Apex Court in the case of Dr. Rashmi Srivastava vs. Vikram University & Ors. reported in 1995(2) Scale 871 and the opinion rendered by the Legal Department of the University. The above decision was pertaining to inter se determination of the seniority of the direct recruit and the promotee and the promotee Professor is not to be equated with the direct recruit Professor, while interpreting Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973 and Section 49 of Chapter 9 of the above Act.
3. However, later on, by the impugned order dated 10.6.2008 passed by the Additional Registrar (Administrative of Agricultural University) Sardar Krushinagar by placing reliance on the communication dated 23.5.2002 by ICAR, New Delhi and communication dated 18.12.2006, while considering the seniority of direct recruitee Professor and Professor promotee, the service rendered by respondent No.4 in Career Advancement Scheme is also to be considered and accordingly respondent No.4 is found senior and, therefore, out of two additional charges held by the petitioner (1) as a Director, of Centre for Basic Science and Humanities and (2) as an Acting Principal of Sardar Krushinagar Dantiwada Krushi University, Sardar Krushinagar, one of the charges of a Principal of Sardar Krushinagar Dantiwada Krushi University, is withdrawn and respondent No.4 is directed to hold the charge to the post of the Principal.
4. The withdrawal of the charge from the petitioner from the post of Principal of respondent No.2-University is challenged on the ground that the impugned order is unjust, unreasonable and arbitrary and violative of principle of natural justice and also violative of Article 14 and 16 of the Constitution of India. It is further submitted that the petitioner was appointed as a Professor by way of direct recruitment vide order dated 14.7.2005 in accordance with rules and is senior to Respondent No.4 who came to be appointed subsequently on 22.8.2006 and, therefore, initial charge was given to the petitioner for the post of Principal, considering the above aspect and also after taking into consideration the decisions of the Apex Court in the case of Dr. Rashmi Srivastava vs. Vikram University (supra) there is no justification to hand over the charge to respondent No.4 who is junior to the petitioner. It is contended that respondent No.4 at relevant point of time was working as Associate Professor and as per the scheme of Career Advancement, he was given only pay scale of Professor vide order dated 25.10.2002 w.e.f. 1998, on completion of 8 years and was given designation of Professor (promotion). However, later on, respondent No.4 came to be appointed as Professor on regular basis by order dated 22.8.2006. So far as, the petitioner is concerned, according to learned advocate for the petitioner, he was appointed as Professor (direct Recruit) vide order dated 14.7.2005 and thus, in the cadre of Professor, the petitioner being a direct recruitee was senior to the petitioner in view of the decision of Dr. Rashmi Srivastava vs. Vikram University & Ors. (supra). Therefore, the petitioner being senior, once given the charge after due deliberation and consideration as per the order dated 30.4.2007, the impugned order dated 10.6.2008 could not have been passed on the ground that respondent NO.4 is senior most and deserves consideration for holding charge for the post of Principal. It is further a case that the respondent-University is an authority within the meaning of Article 12 of the Constitution of India has to satisfy fairness and reasonableness in exercise of power and in absence of any administrative exigency, the respondent-University ought not to have passed the impugned orders. The reliance is placed on various decision by learned advocate for the petitioner i.e. 1995 (2) Scale and in the case of Dr. J.N.Banavalikar v. Municipal Corporation of Delhi & Anr. reported in AIR 1996 SC 326 and submitted that whether the petitioner is entitled to hold the charge or not, may not be a relevant aspect in case if it is established that the administrative action of the respondent authority is unreasonable and unfair and not taken in any administrative or public interest.
5. Shri Mitul Shelat, learned advocate, for the respondent-University opposed the continuance of the interim relief, on the ground that there is no vested legal right to hold the charge of the post of Principal by placing reliance on two decisions of the Apex Court in the case of Ramakant Shripad Sinai Advalpalkar v. Union of India & Ors. reported in AIR 1991 SC 1145 and in the case of State of Haryana v. S.M.Sharma & Ors. reported in AIR 1993 SC 2273 and submitted that there is no right, much less established, warranting any justification to exercise power under Article 226 of the Constitution of India. Learned advocate for the University submitted that assigning charge is only for certain administrative convenience and exigency and does not create right in favour of the employee. Besides, by assigning the additional charge neither the petitioner was promoted or given any additional emoluments and by withdrawing the same on the ground of administrative exigency, the authority has not committed any irregularity much less any illegality. It is further submitted that administrative exigency is justified by the University on the ground that the petitioner was holding two charges as a Director of Centre for Basic Science and Humanities and also as a Principal of the College and, therefore, considering overall aspects in the interest of administration and considering the fact that respondent No.4 was senior most employee having adequate experience not only as a Associate Professor but also as a Professor charge is now given to him which cannot be said to be in any manner unreasonable. According to Shri Shelat, by filing affidavit-in-reply, the respondents have denied action of the respondent being arbitrary or unreasonable. It is further submitted that even on aspect of seniority also, while appointing the petitioner as a Professor Direct Recruit, experience of 5 years rendered as Research Fellow under CABS was taken into consideration and both the above aspects have weighed with the authority while withdrawing the charge from the petitioner. Therefore, according to Shri Shelat, continuous of stay adversely affects the administration of the University which deserves to be vacated forthwith. Learned advocate further submits that before the interim order dated 11.6.2008 granted by this Court, order dated 10.6.2008 was already implemented and charge was taken over by the respondent No.4 and the petitioner proceeded on leave without prior permission and approached this Court. According to learned advocate for the University, by canvassing incorrect facts before this Court, though charge was taken over from the petitioner, persuaded this Court from passing ex-parte order and, therefore, when there is no legal right to hold the charge, the interim relief granted by this Court, deserves to be vacated.
6. Shri Gautam Joshi, learned advocate, appearing for the respondent No.4 submits that averments made by the petitioner in para 2.8 with regard to past service of the petitioner that he was not in employment of the University and appointment as a Professor Direct Recruit has changed the colour of the petition deserves a closer look by this Court.
6.1. Shri Joshi, learned advocate appearing for respondent NO.4 submits that respondent No.4 has vast experience as a Research Scientist since he joined with the respondent-University and later on by office order dated 4.6.1997 he was given benefit of Career Advancement Scheme and was given promotion to the post of Associate Professor and subsequently after undergoing due selection procedure and by virtue of experience came to be appointed as a Professor. Learned advocate Shri Joshi, adopted the arguments canvassed by learned advocate for the University with a request to vacate the stay granted by this Court in view of charge taken over by respondent No.4 on 10.6.2008 before the interim order granted by this Court on 11.6.2008.
7. Having heard learned advocates appearing for the parties, and on perusal of the record, what transpires is that the petitioner was only given the charge for the post of Principal by an order dated 30.4.2007 which was in addition to the duties performed by the petitioner as a Professor and Director of Basic Science and Humanities.
7.1. The submissions made by learned advocate appearing for the petitioner about seniority of the petitioner in the cadre of Professor direct recruit and proposition of law laid down by the Apex Court, while interpreting section 41 of Chapter 9 of the Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973 is that merit promottee Professors and Readers form a distinct class of ex cadre or supernumerary appointees as compared to cadre employee, namely, directly recruited Readers and Professors. So far as, the question to be determined by this Court is pertaining to legal right of the petitioner to hold additional charge of the post of Principal and action of respondent-University whether is taken in the administrative exigency in the interest of University is just, fair, transparent and non-arbitrary. The above impugned action of withdrawing the charge from the petitioner vide impugned order dated 10.6.2008 is examined, in light of the service record of petitioner, as well as, respondent NO.4, the action taken by the University is in administrative interest inasmuch as, the petitioner was holding dual charges as Director of Basic Science and Humanities and also an additional charge on the post of Principal of College. Not only that but holding an additional charge cannot have any relevance on the seniority of the employee but number of factors weigh with the employer or the authority. In the case on hand, the respondent-University has justified its action on the basis that respondent No.4 had over all 32 years of experience as on 1.5.2007, while the petitioner had 22 years and 8 months of experience. Not only that but, as early as, on 27.7.1998, the respondent No.4 was given status of Professor under Career Advancement Scheme and even by direct selection came to be appointed as Professor on 23.8.2006. So far as the petitioner is concerned, he was promoted under CAS as Associate Professor on 18.10.1997 while appointed as a Professor, after considering the experience of Associate Research Scientist under CAS, on 14.7.2005. Therefore, the petitioner may be senior to respondent NO.4 as far as direct recruit Professor is concerned, overall research, teaching and administrative experience of respondent No.4 is more than the petitioner. This Court is not determining inter se seniority or even seniority of Cadre of Professor but the question of right of the petitioner to hold an additional charge of Principal. Thus, the administrative exigency is explained by the respondent-University and necessity of assigning additional charge to respondent No.4 and over all consideration of administrative interest and experience of respondent No.4, it cannot be said that action of respondent-University is in any manner unreasonable, arbitrary, unfair or in any way non-transparent and violative of Article 14 of the Constitution of India or against law laid down in Dr. J.N.Banavalikar v. Municipal Corporation of Delhi & Anr. (supra). On the contrary, the respondent-University has exhibited in detail the requirement of assigning an additional charge of post of Principal to respondent No.4 on the ground stated herein above, I am not persuaded by the submissions of learned advocate for the petitioner that the matter requires to be admitted by conforming the interim order granted on 11.6.2008.
7.2. On the basis of law laid down by the Apex Court in the case of Ramakant Shripad Sinai Advalpalkar v. Union of India and Ors. reported in AIR 1991 SC 1145 that in-charge arrangement in the higher post cannot be said as promotion and no rights, equities or expectations could be build upon it and in the case of State of Haryana v. S.M.Sharma & Ors. reported in AIR 1993 SC 2273 that a reversion of an employee entrusted with current duty charge of higher post in the same pay scale, is neither promotion nor any higher assignment on permanent basis and relieving such employee of the current duty charge, cannot be said to be in any manner reversion or adverse order and the case of the petitioner is similar to the above two decisions of the Apex Court and in absence of any legal right to hold an additional charge for the post of Principal and justification canvassed by the respondent-University to withdraw the said charge in view of administrative exigency, I am of the view that no illegality whatsoever committed by the University, action of the University being un-arbitrary and unreasonable, deserves to be upheld and it will be open for the University to take further action in light of the order dated 10.6.2008 in accordance with law.
8. Petition is disposed of. Notice is discharged. Ad interim relief granted on 11.6.2008 stands vacated.
[ANANT S. DAVE, J.] //smita//