w w w . L a w y e r S e r v i c e s . i n



Parth Bipinchandra Patel & Others v/s Sardar Patel University & Others

    Special Civil Application Nos. 145, 1100 & Civil Application No. 881 of 2017

    Decided On, 20 April 2017

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE CHIEF JUSTICE MR. R. SUBHASH REDDY & THE HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

    For the Appearing Parties: Kamal Trivedi, Senior Advocate with AD Oza, D. M. Devnani, AGP, D. C. Dave, Senior Advocate with Bhargav Hasurkar, H. Syed, Prithu Parimal, Advocates.



Judgment Text

Cav Common Judgment:

R. Subhash Reddy, C.J.

1. In view of the common questions of law arise for consideration on similar set of facts, both these Special Civil Applications are heard together and disposed of by this common judgment.

2. For the purpose of disposal, we draw the facts from Special Civil Application No.145 of 2017.

2.1. The aforesaid Special Civil Application is filed by Assistant Professors working in affiliated colleges of the 1st respondent University seeking prayers which read as under:

'(A) This Hon'ble Court be pleased to quash and set aside Resolution No.16 passed by the Syndicate of the Respondent No.1 university on 28.12.2016 and Notification dated 28.12.2016 issued by the Respondent No.1 university and declare the same to be contrary to Statute 196 of the Sardar Patel University Statutes.

(B) This Hon'ble Court be pleased to quash and set aside Notification No.K.2/(F.T.& C.T.)/6334 dated 31.12.2016 issued by the Respondent No.1 university to the extent that teachers with conditional appointment will not be entitled to be included in the list and Principals of every college should not send such teacher's name.

(C) This Hon'ble Court be pleased to issue an appropriate writ, direction or order directing Respondent No.1 university to allow the Petitioners to remain members of the Senate and Syndicate as applicable, and allow the Petitioners to file their nomination from their respective constituencies in the upcoming Senate elections;

(D) During the admission, pendency and final disposal of this petition, this Hon'ble Court be pleased to stay the further operation and implementation of Resolution No.16 passed by the Syndicate on 28.12.2016 and restrain the Respondent No.1 university from excluding the names of the Teachers with conditional appointment from the Electoral Roll for the senate elections which is to be prepared latest by 21.01.2017.

(E) Be pleased to pass such other and further order as may deem just and proper in the facts and circumstances of the case.

(F) Be pleased to award cost of this petition.'

2.2. The 1st respondent University is a statutory body constituted under the provisions of Sardar Patel University Act, 1955 ('the Act' for short). The Senate and the Syndicate are the bodies constituted under the Act for the purpose of running the affairs of the University. Both the bodies shall have combination of ex-officio members and elected members. Election of the members is to be held in accordance with the provisions of the Act and the Statues made thereunder.

2.3. The Senate is a body constituted under section 15 of the Act and it consists of two categories of members being ex-officio members and ordinary members, who are elected as per the procedure prescribed. Ordinary members once elected will serve a term of five years. Senate meets once a year, and different constituencies, from which members of the Senate are elected, are specified under section 15(II) of the Act. The Syndicate is a body constituted under section 22 of the Act and is an executive authority of the University consisting of exofficio members and elected members. The election of the members, other than the ex-officio members on the Senate, is to be held amongst members of the Senate. Unlike the Senate, the meetings of the Syndicate are held very frequently, ordinarily at least once in a month, as required under section 62 of the Act.

2.4. All the petitioners herein were appointed as Lecturers(re-designated as Assistant Professors) on different dates during the years from 2008 to 2014. They were working in self-financed colleges affiliated to 1st respondent University. After their selection as lecturers, their selection was required to be approved by the 1st respondent University, having regard to the provisions of the Act and the Statutes made thereunder. As the petitioners were not qualified in National Eligibility Test (NET) or State Level Eligibility Test (SLET) and were also not holding Ph.D., as such, conditional approvals were given by the University for their appointments on the condition that they were required to acquire necessary qualifications within a stipulated period, in accordance with Statute 196. Such power is conferred on the University as per provisions under Statute 196. The Statute 196, which existed at the relevant point of time, stipulated that in the event of not acquiring required qualifications, they were not entitled to earn future increments, until they acquire necessary qualifications as stipulated in the orders. From the date of appointments, the petitioners were entitled to all the benefits of regular employee including future increments. According to the petitioners, there are about 1100 such Lecturers (Assistant Professors) serving on conditional appointments in various colleges affiliated to the University.

2.5. Gujarat Technological University Act, 2007 has come into force on 16th May 2007. Faculties of engineering and technology, which were earlier affiliated to the 1st respondent University, have come under the purview of the Gujarat Technological University, which was constituted under the provisions of Gujarat Technological University Act, 2007.

2.6. All the petitioners herein were shown in the voters' list prepared by the University. After engineering and technology courses, came under affiliation to Gujarat Technological University, teachers in the said faculties are being shown in the list of voters prepared by the 1st respondent University. At that point of time, the petitioners approached this Court and filed Special Civil Application No.21367 of 2016 and by order dated 22.12.2016, this Court has granted interim relief, which reads as under:

'Issue NOTICE returnable on 31.01.2017. As much as challenge is to the provisions of section 121(3) of Sardar Patel University Act, 1955, let NOTICE also be issued to the learned Advocate General. There shall be ad interim relief in terms of para 7(D) till further order. Direct service is permitted.'

2.7. It is the case of the petitioners that after such interim relief was granted by this Court, only as a counterblast, to such steps taken by the petitioners, now the respondents have passed the impugned resolution by declaring that appointments of the petitioners are void ab initio and they are not entitled to be shown in the voters' list prepared for the ensuing Senate elections. It is alleged that for the meeting of the Syndicate, which was to be held on 28th December 2016, the 1st respondent University has issued agenda on 20th December 2016. It is pleaded that additional agenda was introduced on 26th December 2016 and impugned resolution was passed.

2.8. It is the case of the petitioners that, impugned resolution was passed illegally and arbitrarily only as a counterblast to the steps taken by the petitioners in approaching this Court and obtaining the interim orders and is a mala fide action. It is pleaded that by impugned resolution, the 1st respondent University has declared the appointments of the petitioners and similarly placed about 1100 persons, who are working as Assistant Professors, per se, illegal, as they have not obtained required qualification within stipulated time. It is also the case of the petitioners that such resolution was passed by the respondent University only to disqualify them as members of the Senate and to deprive them their voting rights. It is also pleaded that despite interim relief granted by this Court on 22nd December 2016, one Mr. Pragneshkumar Arvindbhai Patel, who is a representative from a college now affiliated to Gujarat Technological University, was also permitted and voted in the Syndicate meeting held on 28th December 2016, in clear violation of the earlier orders passed by this Court and was a signatory to Resolution No.16. It is pleaded that consequent to resolution passed by the Syndicate, impugned notifications dated 28th December 2016 and 31st December 2016 were issued by the respondents. It is stated that as per abovesaid impugned notifications, by relying on Resolution No.16 dated 28th December 2016, the respondents have permitted teachers with NET/SLET or Ph.D. only to be eligible to be enrolled in the list of voters for the purpose of election to the Senate. It is specifically stated that teachers with conditional appointments are not entitled to be included in the list and the Principals of every College should not send such teachers' name to the University.

2.9. The resolution dated 28th December 2016 and consequential notifications issued by respondent authorities have given rise to prefer these Special Civil Applications. Mainly it is the case of the petitioners that impugned resolution and consequential notifications are passed illegally, arbitrarily, in violation of principles of natural justice and such proceedings are contrary to Statute 196 of the University framed under the Act.

3. On behalf of the 1st respondent University, an affidavit-in-reply is filed by the Registrar opposing the prayers. While denying the various allegations made by the petitioners in the petition, the case of the 1st respondent is as under:

3.1. It is stated in the reply that except the petitioners, all other teachers have accepted that they are not possessing minimum qualification and are not getting their salary in the scale as per the provisions of the Statute 158(b) and therefore, they have neither raised any objection nor have made any representation within stipulated period. Before adverting to other allegations made by the petitioners in the petition, Statute 158(b) is reproduced, which reads as under:

'(b) every 'teacher' on the staff of a constituent or affiliated college or recognized institution holding qualifications and receiving pay in the scale prescribed by the university for a particular category of university teachers such as professors, readers or lecturer, shall be deemed to belong to that class of 'teachers' irrespective of the actual designation of the post held by him at the college or institution.'

3.2. It is stated that regulations of the University Grants Commission Regulations, 2010 were adopted by the 1st respondent University and the petitioners have deliberately not mentioned the amended provisions of Statute 196. The petitioners are employees appointed by Anand People's Medicare Society, which is running the colleges. Father of petitioner no.1 is the President of the said society, petitioner no.1 is the lecturer and Chief Executive Officer of the said Society and petitioner no.2 is his wife. None of the petitioners is possessingthe minimum qualifications for appointment as the teachers in the constituent and affiliated colleges and institutions. It is further stated that out of 148 colleges affiliated to the 1st respondent University, 46 are grant-in-aid colleges wherein all the Assistants, Associates and Professors are having requisite qualifications as per the UGC norms and remaining 102 are self-financed colleges affiliated to the 1st respondent University wherein some of the teachers do not possess requisite minimum qualification as per UGC Regulations, 2010 and do not receive salary in the requisite pay scale. It is stated that as the proceedings of the Senate, Board of Studies, Syndicate and Academic Council are being adversely affected due to inclusion of the representatives of such teachers and their management, qualified and meritorious professors are victimized. It is further stated that as the members, who do not possess minimum qualifications, were included in the selection committeefor selection of qualified teaching staff of 26 Departments run by the University till August, 2016, persons selected for the posts of Assistants, Associates and Professors are not possessing minimum qualifications. In view of the same, the present Vice Chancellor took steps to scrap such selection committee, which was frozen by the Chancellor namely, the Hon'ble Governor of State of Gujarat, vide order dated 7.9.2016. It is submitted that petitioners are employees of the colleges run by the same management, which has sent 11 teachers, who are not possessing the minimum qualifications, to the Senate. It is also stated that petitioner no.1 and one Mr. Rajendrakumar Barot, who are members of the Syndicate and Academic Council, do not possess minimum requisite qualifications.

3.3. It is further stated that a member of the teaching staff willing to become a voter has to fill in the prescribed form giving details of qualifications as per Statute 158(b) and his scale of pay. According to the deponent, teachers, who do not possess the required qualifications or receive scale of pay, are giving false details to become a voter. It is stated that apart from the affiliated colleges, all the 141 members of teaching staff of 26 departments run by the university are possessing requisite qualifications as per UGC norms. It is submitted that the petitioners have tried to mislead this Court by deliberately not giving details of their qualifications in the petitions and in the Annexure-A(page 22).

3.4. It is further stated in the reply that Vice Chancellor of the respondent University had given reasonable opportunity to the teaching staff, who do not possess requisite minimum qualifications and many such professors including the petitioners have made written submissions. In pursuance of calling for the details of such staff, Vice Chancellor has received information of 65 members of teaching staff of affiliated colleges and University continued the recognition permanently.

3.5. While denying the allegation made in paragraph 1, it is stated that a person can be included in the voters' list if required criteria as per section 2(20) of the Sardar Patel university Act and Statute 158 and 159 are fulfilled.

3.6. As regards paragraph 2, it is stated that petitioners are Assistant Professors in the Colleges run by the Anand People's Medicare Society, Anand, where father and mother of petitioner No.1 are the President and the Finance Secretary respectively.

3.7. As regards paragraphs 3.4, 3.5 and 3.6, it is stated that petitioners have deliberately not mentioned their qualifications in the chart produced at Annexure-A. It is stated that petitioner nos.1 to 4 were appointed after 2011 and therefore, UGC notifications at Annexures-B and C of the years 1998 and 2009 respectively are not applicable to them. As regards UGC Regulations, 2010 produced at Annexure-D, it is stated that no provisions for granting exemptions and relaxations or even conditional appointment were mentioned, as stated by the petitioners. It is stated that as petitioner no.5 was appointed in 2008, vide communication dated 24.12.1998 of UGC annexed by the petitioners at page 50, prior approval of UGC is required to be taken for giving any relaxation by the University.

3.8. It is stated as regards paragraphs 3.7, 3.9 and 3.10 that an exemption of minimum eligibility condition of NET/SLET for recruitment has been granted only to a person, who has acquired Ph.D. qualification. Such exemption is not available to the petitioners, as petitioners are pursuing their Ph.D. while petitioner No.5 has failed to acquire Ph.D. within 8 years of her appointment.

3.9. Regarding paragraph 3.8, it is stated that Statute 196, which was applicable prior to March 2011, was amended in the meeting of the Senate on 24.3.2011 and therefore, the petitioners cannot be permitted to rely upon the same.

3.10. While denying the allegations made against the respondent University in paragraphs 3.11, 3.12, 3.13 and 3.14, it is stated that the issue of possessing minimum qualification is the subject matter of the present petition, which is not the issue in Special Civil Application No.21367 of 2016. The issue in the said petition was whether the electoral roll in the constituency of registered graduate can be prepared as per section 121(3) or not. It is stated that in the constituency of registered graduate, courses like B.E. and M.E. are only transferred to Gujarat Technological University while other courses are still with the University.

3.11. The contentions, submissions and allegations made in paragraph 3.15 against the respondent University are also denied. It is stated that the period of Senate is going to be over by 21.2.2017 and in order to start the process in advance, University has taken steps in view of clauses (a) and (b) of Statute 158 taking into consideration Statute 196 and UGC Regulations, 2010.

3.12. Mainly, the impugned resolution and consequential notifications are challenged on the ground that same were passed/issued without conducting any inquiry and giving opportunity in gross violation of the principles of natural justice and such proceedings are contrary to their appointments issued under Statute 196 of the Statutes. It is their case that, having regard to Statute 196, which existed at the relevant time of appointment of the petitioners, in the event of not acquiring the required qualifications within the time frame fixed by the authorities, they will not be entitled to earn future increments till they acquire required qualifications. In view of such Statute, which existed then, and appointments issued to the petitioners by following the regular procedure, it is not open for the respondents to declare that their appointments are illegal and void ab initio, only on the ground that they have not qualified in NET/SLET or acquired Ph.D. Degree. It is also their case that in view of their selection and appointment as lecturers, they acquired right to continue in terms of their appointment and such right cannot be divested or taken away in absence of any power conferred on the respondents, that too in violation of principles of natural justice and contrary to Statutes of the University and the provisions of the Act.

4. Further affidavit is filed by Shri Mayank Vinodbhai Bhatt, Assistant Registrar of the 1st respondent University, for placing on record the communication from the office of Chancellor of Sardar Patel University dated 22.2.2017 conveying the grant of assent to the amendments proposed by the Senate at the annual meeting held on 29.3.2011. It is stated that 326 teaching staff, out of 1564 teaching staff of 122 affiliated self-financed Colleges and University P.G.Department, excluding 21 colleges run by the petitioners' Anand People's Medical Society, are not possessing requisite qualifications as per UGC Regulations, 2010. The contention of the petitioners that there are 1100 teaching staff not possessing the qualifications as per UGC Regulations is denied. It is stated that out of 414 teaching staff in 21 Colleges run by Anand Peoples' Medical Society, 326 teaching staff do not possess requisite qualifications as per UGC Regulations, 2010. Thus, out of 1978(1564+414) teaching staff, 652(326+326) teaching staff are not qualified as per UGC Regulations, 2010.

5. Separate affidavit-in-reply is filed by the impleaded respondent nos.3 and 4. In their affidavit-inreply, they have adopted the reply filed on behalf of the 1st respondent University. They have also referred to the allegations made by them in support of their Civil Application for joining as party respondents.

6. Heard Shri I.H.Syed with Shri Prithu Parimal, learned counsels appearing for the petitioners, Shri Kamal Trivedi, learned Advocate General, assisted by Shri A.D.Oza, learned counsel for the 1st respondent University, learned Assistant Government Pleader, Mr. D.M.Devnani, for respondent No.2-State and Shri Dhaval C.Dave, learned Senior Advocate assisted by learned counsel, Shri Bhargav Hasurkar for the impledaded respondents.

7. It is contended by Shri Syed, learned counsel appearing for the petitioners, that the impugned resolution and consequential notification and further notification issued by the 1st respondent University are illegal, arbitrary and in violation of provisions of the Act and Statutes made thereunder and such proceedings are issued in gross violation of the principles of natural justice. Mainly it is contended that when the appointments of the petitioners are approved conditionally, as per the Statutes, there is no reason for passing the impugned resolution for cancelling the appointments of the petitioners, on the ground that they have not acquired the required qualifications as prescribed in the Regulations. By referring to Statute 196 and relying on the Note to Statute 196(B), it is submitted that if the conditions in the appointment are not fulfilled by not obtaining required qualifications within stipulated period, it will not empower the respondents to cancel the appointments of the petitioners. Placing reliance on the Note referred above, it is contended that failure to acquire the required qualifications as prescribed in the Regulations will not entitle the candidates to any future increments till they obtain the particular degree or give evidence of equivalent published work of high standard but, at the same time, that will not empower the university to cancel the very appointments of the petitioners, that too, without giving any opportunity of hearing either to the petitioners or the colleges. It is submitted that such a resolution, which is impugned, was passed illegally, arbitrarily and in gross violation of the principles of natural justice.

7.1. It is further submitted that as per the Regulations, requirement of passing of NET or SLET or Ph.D. is not mandatory but directory and the State Government has issued resolutions from time to time to fill up the vacancies by the candidates, who have not acquired the required qualifications as prescribed in the Regulations, when fully eligible candidates are not available. It is submitted that at the first instance, vide Resolution dated 25th August 2005, the Government has passed Resolution to that effect and same resolution was also reiterated by the Government on 5th March 2013 and in view of such resolutions passed by the Government and having regard to the Statute which existed at the time of appointments of petitioners, conditional appointments were given.

7.2 It is further submitted by Shri Syed, learned counsel for the petitioners, that as much as their appointments are valid as Assistant Professors, they are entitled to be enrolled as voters in the voters' list prepared for the purpose of holding of elections to the Senate. It is the case of the petitioners that by passing the impugned resolution illegally and arbitrarily, the petitioners and similarly placed persons, who are working as Assistant Professors in more than about 148 colleges, are sought to be deprived of their fundamental rights illegally.

7.3 Learned counsel, in support of his submissions, has placed reliance on the judgments of the Hon'ble Supreme Court in the cases of P.Suseela and Others vs. University Grants Commission and Others reported in (2015)8 Supreme Court Cases 129, Kalyani Mathivanan vs. K.V.Jeyaraj and Others reported in (2015)6 Supreme Court Cases 363, Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Others reported in (1998)8 Supreme Court Cases 1 and judgment in the case of Beena Ambalal Mahida vs. the President/Secretary & Others delivered by the learned Single Judge of this Court dated 3.8.2016 in Special Civil Application No.19128 of 2015. 8. On the other hand, Shri Kamal Trivedi, learned Advocate General appearing for the 1st respondent University, has submitted that as per the Regulations notified by the University Grants Commission('UGC' for short), which is a body constituted under the University Grants Commission Act of 1956, the qualifications are prescribed for appointments to the post of Assistant Professors, Associate Professors and Professors. It is submitted that in the Regulations of 2010 framed by the UGC, passing of NET, SLET or completing Ph.D. is a requirement for appointment and inspite of such regulations, the petitioners were appointed conditionally to give them a chance to acquire the required qualifications within the prescribed time. It is submitted that though such chances are given to the petitioners, they have not acquired the required qualifications within stipulated time and as such, the impugned resolution was passed by the 1st respondent University. It is further submitted that they are not pressing for their discontinuance as Associate Professors in the Colleges pursuant to resolution passed by the University, but, they are seeking relief against disentitling them to be enrolled in the voters' list for the purpose of election to the Senate. It is contended that the right to vote is not a fundamental right and the same is only a statutory right conferred upon the petitioners and as the petitioners are not possessing the required qualifications, as notified by the UGC Regulations, 2010, they cannot be allowed to be included in the voters' list.

8.1. Placing reliance on the Statute 158 of the Statues of the 1st respondent University, it is submitted by the learned Advocate General that only those teaching staff of a constituency or affiliated college or recognized institution, who are holding qualifications and receiving pay in the scale prescribed by the university, are eligible to be enrolled in the electoral roll prepared for the purpose of elections. It is the case of the 1st respondent University that the petitioners were neither holding the qualifications as contemplated in the UGC Regulations, 2010 nor receiving the pay in the scale prescribed by the University and, as such, they are not entitled to be enrolled as voters in the voters' list. It is contended that when the very appointments of the petitioners are contrary to UGC Regulations, 2010 and per-se illegal, they are not entitled to be enrolled in the electoral roll for the purpose of holding elections to Senate. In any event, it is submitted that if there is any dispute, there is a mechanism for reference to the State Government under the provisions of the Act. In view of such effective alternative remedy available to the petitioners, these petitions filed under Article 226 of the Constitution of India are not maintainable.

8.2. It is further submitted by the learned Advocate General appearing for the University that even assuming that the Statutes framed by the University are contrary to the Regulations framed by the UGC, the Regulations framed by the UGC prevail over the Statutes of the University to the extent they are repugnant to the provisions of the Act and Statutes made thereunder. Further, it is brought to our notice by the learned Advocate General that the amended Statute, which amendments were resolved by the Senate in its meeting held on 29.03.2011, was given assent by the Hon'ble Governor. It is submitted that such amendments operate retrospectively, in view of the same, impugned resolution was valid and legal.

8.3. In support of his submissions, the learned Advocate General, has relied on the very same judgment of the Hon'ble Supreme Court in the case of P.Suseela(supra), which is relied on by the learned counsel for the petitioners. Further reliance is placed on the judgments of the Hon'ble Supreme Court in the cases of State of T.N. and another vs. Adhiyaman Educational @ Research Institute and Others reported in (1995)4 Supreme Court Cases 104, Zile Singh vs. State of Haryana and Others reported in (2004)8 Supreme Court Cases 1 and the judgment of the Division of this Court in the case of Shrijee Trading Company and Ors. vs. State of Gujarat & Ors. reported in 2003(3) G.L.R. 2331.

9. Shri Dhaval C. Dave, learned Senior Advocate appearing for the impleaded respondents, has submitted that the very appointments of the petitioners are conditional ones, subject to the approval by the Syndicate, as contemplated under Statute 197 of the Statutes. It is submitted that when the conditions are not complied with by acquiring the required qualifications as prescribed in the Regulations within the time stipulated in the appointment orders, such appointments are per-se illegal, as they run contrary to UGC Regulations. It is contended by the learned Senior Advocate that Entry 66 of List-I of the Constitution has primacy over Entry 25 of the List-III-concurrent list. It is also the contention of the learned Senior Advocate that in view of the effective alternative remedy available to the petitioners under the Statutes, these petitions are not maintainable.

9.1. In support of his submissions, the learned Senior Advocate has placed reliance on the judgments of the Hon'ble Supreme Court in the cases of Gujarat University vs. N.U.Rajguru and Others reported in 1987(Supp) Supreme Court Cases 512, Chamanlal vs. State of Punjab and others reported in (2014)15 Supreme Court Cases 715 and State of Orissa and Anr. Vs. Mamata Mohanty reported in 2011(3) Supreme Court Cases 436.

10. Before we consider the contentions advanced by the learned counsels, we deem it appropriate to refer to certain relevant provisions in the Act and the Statutes made thereunder.

10.1. Teacher is defined under section 2(20) of the Act as under:

'"teacher" means a professor, reader or lecturer, imparting instruction or guiding research in the University, an affiliated college or recognized institution or such other person as may be declared to be a teacher by the Statutes.'

10.2. Chapter-IV of the Act deals with the authorities of the University. The Senate and the Syndicate are the authorities of the University under section 14 in Chapter- IV of the Act. The Constitution of the Senate is prescribed under section 15 of the Act. Under Chapter-VII of the Act, the Senate is empowered to make the Statutes for the matters provided under section 41 of the Act. Section 42 of the Act empowers the Senate to amend and repeal the Statutes. Under Section 42(5) of the Act, no Statute passed by the Senate shall be valid or shall come into force until assented to by the Chancellor. The Hon'ble Governor of the State Government is the Chancellor of the 1st respondent University.

10.3. Chapter-XIII of the Statutes provides the procedure for election to authorities of the University. Statute 158 of Chapter XIV contains the General Provisions, which read as under: '(a) For the purpose of preparation of electoral roll a professor, reader, or lecturer shall mean a professor, reader or lecturer whose appointment has been made by the University or reported to and approved by the University in accordance with the Statutes and/or Ordinances in force for the time being.

(b) Every 'teacher' on the staff of a constituent or affiliated college or recognised institution holding qualifications and receiving pay in the scale prescribed by the University for a particular category of University teachers such as professor, reader or lecturer, shall be deemed to belong to that class of 'teachers' irrespective of the actual designation of the post held by him at the college or institution.

(c) Honorary teachers whose appointments have been made by the University or the constituent colleges or the recognised institutions shall also be considered as 'teachers' for the purpose of these Statutes.'

10.4. Conditions of Service, Qualifications and payscales of teachers in Colleges are prescribed under Statute 196 of Chapter XXIV of the Statutes.

10.5. Under Statute 196(1)(A), minimum qualifications for appointment of lecturers, other than Faculty of Education, were notified. Under Statute 195(1)(B), minimum qualifications for lecturers under the Faculty of Education were notified. The Note, as existed at the time of appointments of the petitioners, reads as under:

'Note:(1) For A and B, if a candidate possessing the qualifications as at (ii) above is not available or not considered suitable, the college on the recommendation of the Selection Committee may appoint a person possessing a good academic record on the condition that he will have to obtain an M.Phil. Degree or a recognised degree beyond the Master's level within eight years of his appointment; failing which he will not be able to earn future increments till he obtains that degree or gives evidence of equivalent published work of high standard.

(2) A person holding Associateship/Membership of the Institute of Chartered Accountant or the Institute of Cost and Works Association and a B.Com./B.B.A. Degree will also become eligible for appointment as a Lecturer in Accountancy under the Faculty of Commerce.'

11. It is not in dispute that, the Senate of the University has passed resolution for amendment of the above-said Statute in the meeting of the Senate held on 24.3.2011 and sent for approval, as contemplated under Section 42(5) of the Chapter VII of the Act and same was assented by the Hon'ble Chancellor only on 22.2.2017.

12. Primarily, the impugned resolution and consequential notifications are questioned on the ground that same are passed/issued in violation of the principles of natural justice and without giving any opportunity of hearing to the petitioners. It is also their case that in view of the Statutes, which existed at the time of appointments of the petitioners, contemplate that in the event of not acquiring the required qualifications within the time frame fixed in the orders of appointments, they will not be entitled to earn future increments till they acquire the required qualifications. It is their case that not acquiring the qualifications, as insisted by respondents, cannot be treated that their appointments are void ab initio. It is also their case that by virtue of such appointments, they have acquired vested right of their continuance in service. Such right cannot be divested or taken away, in absence of any power conferred on the respondents and that too, in violation of the Statutes of the University and the provisions of the Act.

13. In the judgment relied on by the learned counsel for the petitioners in the case of P.Suseela (supra), the Hon'ble Supreme Court has held that the right vests with appointees when they are actually appointed to the posts of Lecturer or Assistant Professor. In the very same judgment, while considering the scope of UGC egulations,

2010, with reference to the provisions under UGC Act, 1956, the Hon'ble Supreme Court has held that the object of such regulations is to see that lecturers in the universities/colleges/institutions should have a minimum standard of excellence before they are appointed as such. In the said judgment, it is observed that no exemption is permissible for such appointments from the date of regulations, except as provided in the proviso to clause 3.3.1 of the UGC Regulations, 2010.

14. In the judgment in the case of Kalyani Kalyani Mathivanan vs. K.V.Jeyaraj and Others reported in (2015)6 Supreme Court Cases 363, the Hon'ble Supreme Court, while considering the binding nature of UGC Regulations of 2010, has held that UGC Regulations of 2010 are mandatory to teachers and other academic staff in all Central Universities and Colleges thereunder and the institutions deemed to be Universities, whose maintenance expenditure is met by UGC. In the very same judgment, it is held that UGC Regulations of 2010 are directory for universities, colleges and other higher educational institutions under the purview of State Legislation. In the said judgment, it is left to the State Government to adopt and implement the regulations. Thus, it is held that UGC Regulations of 2010 are partly mandatory and partly directory.

15. In the unreported judgment in the case of Beena Ambalal Mahida vs. the President/Secretary & Others rendered by the learned Single Judge of this Court in Special Civil Application No.19128 of 2015, University has taken a stand, placing reliance in the case of Kalyani Mathivanan(supra), that UGC Regulations are directory for universities, colleges and other higher educational institutions under the purview of State Legislation.

15.1. In view of the judgment of the Hon'ble Supreme Court referred above, the submission of the learned Advocate General that regulations framed by the University have precedence over the provisions of the Universities Act and Statutes made thereunder cannot be accepted. In the judgment in the case of Kalyani Mathivanan(supra), the Hon'ble Supreme Court has considered the binding nature of UGC Regulations of 2010 and clearly held that UGC Regulations of 2010 are directory for universities, colleges and other higher educational institutions under the purview of the State Legislation. It is relevant to notice here at this stage that the 2nd respondent State of Gujarat has passed resolution on 25th August 2005 permitting teachers/lecturers for their conditional appointments, as much as candidates, who have qualified in NET/SLET, are not available to fill the required number of vacancies. Similar stand is also reiterated by the Government in further resolution passed on 5th March 2013.

16. The Statute 196 framed by the 1st respondent University under the Act is considered as existed at the time of appointments of the petitioners, it makes it very clear that in case where candidates possessing the required qualifications are not available, conditional appointments were permissible. The Note to Statute 196 also makes it clear that in the event of not fulfilling the conditions of appointments, the appointees are not entitled to earn future increments till they acquire required qualifications or until they furnish evidence of equivalent published work of high standard. To counter the allegations of the petitioners, it is the case of the 1st respondent University that the Note of Statute 196 was amended in the Senate meeting held on 24th March 2011, as such, petitioners cannot take benefit of such Note but, at the same time, it is to be noted that as per section 42(5) of the Act, the amendments to Statute will come into force only from the date of assent of the Hon'ble Chancellor. It is not disputed that assent to the proposed amendments was made by the Hon'ble Governor only on 22.2.2017.

17. It is the case of learned Advocate General that though amendments recommended were assented by the Hon'ble Governor on 22.2.2017, they operate retrospectively. In support of his submissions, he has relied on the judgment in the case of Zile Singh vs. State of Haryana and Others reported in (2004)8 Supreme Court Cases 1, wherein the Hon'ble Supreme Court has held that absence of provision expressly giving a retrospective operation to the legislation is not determinative of its prospectivity or retrospectivity. In the said judgment, it is further observed that intrinsic evidence may be available to show that amendment was necessarily intended to have retrospective effect and in view of the same, the Court can unhesitatingly conclude in favour of retrospectivity. Ordinarily, the amendments were to be given retrospective effect unless either express provision is made for giving effect to the amended provisions retrospectively or unless the intention is clear, amended provision should be held to be prospective. On a perusal of the resolution passed by the Senate, it is clear that it did not intend to amend the provision retrospectively. In absence of any such specific resolution and assent by the Hon'ble Governor on 22nd February 2017 only and further, in absence of any intention to amend such Statute retrospectively, there is no reasonable justification on the part of the 1st respondent University to plead that such amendment operates retrospectively and it results in the very appointments of the petitioners as illegal. Reliance is also placed in the judgment in the case of Shrijee Trading Company and Ors. vs. State of Gujarat & Ors. reported in 2003(3) G.L.R. 2331 by the learned Advocate General. In paragraph No.20.6 of the said judgment, the Hon'ble Supreme Court has held as under:

'20.6. Therefore, it has to be ascertained from the enactment under scrutiny, whether it is calculated to have a retrospective or retroactive effect of interfering with the accrued or vested rights. It has to be ascertained from the enactment itself whether it contains express provisions or provisions which, by necessary implication, have the effect of retrospective or retroactive operation of taking away or impairing vested rights. No such retrospective or retroactive operation can be attributed to the Amendment Order of 2002 in absence of there being any provision indicating such an effect.'

18. In the absence of express provision or necessary implication, in the facts of the present case, we are of the view that the resolution passed by the Senate in the meeting held on 24th March, 2011 proposing amendments of Statute 196 were never intended to be retrospective and they come into operation only from the date of assent by the Hon'ble Governor i.e. from 22nd February, 2017. Both the judgments relied on by the learned Advocate General do not support the case of the 1st respondent University having regard to the facts and circumstances. It is not in dispute that the petitioners were selected by the Selection Committee and were appointed by the college authorities by taking prior approval from the University, which is accorded in exercise of power conferred under Note to Statute 196 of the Statutes. In view of such appointments, there is a vested right accrued to the petitioners to continue in service and the same cannot be divested based on the amendments to Statute 196, which are assented by the Hon'ble Governor, as contemplated under the Statutes itself, only on 22.2.2017. In that view of the matter and having regard to the case law on the subject relied on by the learned counsel for the petitioners, we are of the view that the amendments effected to Statute 196, which are approved on 22nd February, 2017 by the Hon'ble Governor, operate prospectively and such amendments would not affect the appointments made prior to the assent given by the Hon'ble Governor. In view of the Note, which existed at the time of appointments of the petitioners, if the petitioners have not acquired the requisite qualifications as contained in the approval, they would not be entitled to earn their increments till they acquire the required qualifications, but at the same time, merely on the ground of not acquiring the required qualifications within the time stipulated will not make their appointments as illegal.

19. It is argued by the learned Advocate General appearing for the 1st respondent University, that in the event of any repugnancy between UGC Regulations and Statutes framed by the University, the regulations of UGC will prevail. In support of his plea, he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of State of T.N. and another vs. Adhiyaman Educational @ Research Institute and Others reported in (1995)4 Supreme Court Cases 104.

20. With reference to aforesaid argument, it is to be noted that in the judgment in Kalyani Mathivanan vs. K.V.Jeyaraj and Others reported in (2015)6 Supreme Court Cases 363, the Hon'ble Supreme Court has held that UGC Regulations are directory so far as, Universities, Colleges and other higher educational institutions under the purview of the State Legislation are concerned. In view of the abovesaid view taken by the Hon'ble Supreme Court, it is not necessary to examine whether there is any repugnancy between UGC Regulations of 2010 and the Statutes framed by the University under the provisions of Sardar Patel University Act. When such regulations are held to be directory for the universities, colleges or higher educational institutions under the purview of the State Legislation, it is open for the 1st respondent University to frame Statutes, prescribe the required qualifications for appointment to the post of Assistant Professor, having regard to local conditions and availability of candidates possessing required qualifications, etc. It is also relevant to notice that Government also has issued resolution from time to time permitting the appointments of persons, who are not holding NET/SLET/Ph.D., on the ground that required number of candidates are not available to fill up the existing vacancies in various colleges. Same is evident from the resolution passed by the Government on 25th August, 2005 and further resolution passed on 5th March, 2013, which are placed on record during the course of hearing. In view of such resolutions passed by the Government and having regard to the Statute which existed at the relevant time of appointments of the petitioners, we are of the considered view that their appointments are valid, legal and are in conformity with the Statutes in force at the relevant time. When the amended Statutes have come into force only after assent by Hon'ble Governor on 22nd February 2017, the said Statute cannot be given retrospective effect to declare the appointments of the petitioners as illegal and void ab initio, on the ground that they have not acquired the required qualifications. In the event of not acquiring the required qualifications, they may not be entitled to earn future increments, as contemplated in the

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Statute, until they acquire the required qualifications but, at the same time, that will not make their appointments as illegal. 21. It is the case of the respondents that these petitions are not maintainable in view of the alternative remedy provided under section 59 of the Act. It is true that under section 59 of the Act, if any question arises as to interpretation of the provisions of the Act or Statute or Ordinance or Rule, a reference is provided to State Government for adjudication on such dispute. In support of such arguments, Shri Dhaval Dave, learned Senior Advocate, has placed reliance on the judgment in the case of Gujarat University vs. N.U.Rajguru and Others reported in 1987(Supp) Supreme Court Cases 512. However, in the judgment in the case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Others reported in (1998)8 Supreme Court Cases 1, the Hon'ble Supreme Court has held in paragraphs 14 and 15 as under: '14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose". 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a Writ Petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as abar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order of proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point put to cut down this circle of forensic Whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.' In the above judgment, the Hon'ble Supreme Court has clearly held that alternative remedy will not operate as a bar at least in three contingencies viz., where there is a violation of fundamental rights or where there is a violation of principles of natural justice or where the order or proceedings are wholly without jurisdiction. Having regard to the facts of the cases on hand, it is also the case of the petitioners that the impugned resolution passed by the Syndicate is arbitrary, illegal and in violation of principles of natural justice. It is clear from the materials placed on record that the petitioners were appointed as Assistant Professors after undergoing the due process of selection and their selections were approved by the University by imposing conditions as existed then under the Statute 196 of the Statutes. In that view of the matter, to annul their appointments, it is obligatory on the part of the respondents to give them notice and an opportunity of hearing. In absence of such a course adopted by the 1st respondent University, it is to be held that the resolutions, which are impugned, are passed in gross violation of principles of natural justice apart from being arbitrary and illegal, as they are running contrary to the provisions of the Statute. As the petitioners are appointed by due process of law and they fit into the definition as defined under section 2(20) of the Act, and as we have already held that their appointments are valid and legal, as such, they are entitled for their enrollment in the electoral roll for the purpose of holding elections to the Senate. As we are of the view that the very resolution was passed illegally and arbitrarily, contrary to the Statutes and in violation of principles of natural justice, as such, consequential notifications depriving their right to vote, are also to be declared as illegal, by quashing and setting aside the consequential notifications dated 28.12.2016 and 31.12.2016 issued by the Respondent No.1 university. 22. For the aforesaid reasons, both the Special Civil Applications are allowed. Impugned Resolution No.16 passed by the Syndicate of the University on 28.12.2016, to the extent of declaring the appointments of the petitioners as void ab initio, is quashed and set aside. Consequential Notification dated 28.12.2016 and further Notification dated 31.12.2016 issued by the Respondent No.1, declaring that teachers on conditional appointments are not entitled to be included in the voters' list for the purpose of elections to the Senate, are hereby quashed and set aside. No order as to costs. Consequently, Civil Application No.877 of 2017 stands disposed of.
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