Mirza Intekhab Akbar Baig vs The State Of Maharashtra And ...
2021 Latest Caselaw 6888 Bom

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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").

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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

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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

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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

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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

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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

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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

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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

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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

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(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

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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.;

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(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

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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

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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

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lsosP;k dkyko/khe/;s x.kuk d# u;s- R;kpcjkscj ,[kknk vf/[email protected] 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

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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

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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

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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

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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

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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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