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