1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION No. 7364 OF 2008
1] Dr. Balaji s/o. Ramrao Kawathekar
Age 59 years, Occ. Service in
Marathwada Agricultural University
Parbhani,
R/o. Vivek Nagar, Vasmat Road,
Parbhani, Dist. Parbhani.
2] Dr. Sudhakar s/o. Nagorao Kulkarni
Age 58 years, Occ. Service in
Marathwada Agricultural University
Parbhani,
R/o. Ramkrishna Nagar,
Parbhani, Dist. Parbhani.
3] Dr. Digambar s/o. Wamanrao Wadnerkar
Age 57 years, Occ. Service in
Marathwada Agricultural University
Parbhani,
R/o. Shivram Nagar,
Parbhani, Dist. Parbhani.
4] Dr. Dadarao s/o. Shankarrao Suryawanshi
Age 59 years, Occ. Service in
Marathwada Agricultural University
Parbhani,
R/o. Shivram Nagar,
Parbhani, Dist. Parbhani.
5] Dr. Vitthal S/o. Deorao Pawar,
Age 59 years, Occ. Service in
Mahatma Phule Krishi Vidyapith
Rahuti, Taluka Rahuri
District Ahmednagar.
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6] Dr. Ashok S/o. Narayanrao Kulkarni
Age 57 years, Occ. Service in
Marathwada Agricultural University
Parbhani,
R/o. Vidya Nagar,
Parbhani, Dist. Parbhani.
7] Dr. Kalyan s/o. Rambhau Mitkari
Age 57 years, Occ. Service in
Marathwada Agricultural University
Parbhani,
R/o.Ramdas Nagar,
Parbhani, Dist. Parbhani.
8] Dr. Renukadas S/o. Purushottam Barbind
Age 56 years, Occ. Service in
Marathwada Agricultural University
Parbhani,
R/o. Kalyan Nagar,
Parbhani, Dist. Parbhani.
9] Dr. Manik S/o. Balaji Misal
Age 58 years, Occ. Service in
Marathwada Agricultural University
Parbhani,
R/o. Bhagyalaxmi Nagar,
Parbhani, Dist. Parbhani.
10] Dr. Anil s/o. Shrikrishna Ansinkar
Age 60 years, Occ. Service in
Marathwada Agricultural University
Parbhani,
R/o. C/o. Mr. Bhatmbrikar,
Sharda Nagar,
Parbhani, Dist. Parbhani.
11] Dr. Anil S/o. Namdeorao Gite,
Age 58 years, Occ. Service in
Marathwada Agricultural University
Parbhani,
R/o. Krishi Sarthi Nagar,
Parbhani, Dist. Parbhani.
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12] Dr. Indradas S/o. Ambadasrao Madrap,
Age 57 years, Occ. Service in
Marathwada Agricultural University
Parbhani,
R/o. Krishi Sarthi Nagar,
Parbhani, Dist. Parbhani.
13] Dr. Purushottam S/o. Ranba Khapre,
Age 57 years, Occ. Service in
Marathwada Agricultural University
Parbhani,
R/o. Lokmaya Nagar,
Parbhani, Dist. Parbhani.
14] Dr. Ashok Appasaheb Chavan
Age 57 years, Occ. Service in
Marathwada Agricultural University
Parbhani,
R/o. Shivram Nagar,
Parbhani, Dist. Parbhani.
15] Dr. Shivraj s/o. Sangappa Bhatade
Age 58 years, Occ. Service in
At present working in Cotton Research
Center, Nanded, under
Marathwada Agricultural University
Parbhani,
R/o. Shivaji Nagar,
Nanded, Dist. Nanded.
16] Dr. Raosaheb S/o. Ramrao Chole
Age 58 years, Occ. Service in
Marathwada Agricultural University
Parbhani,
R/o. Ramkrishna Nagar,
Parbhani, Dist. Parbhani.
17] Dr. Shyamsundar s/o. Dattopant Wangikar
Age 57 years, Occ. Service in
Marathwada Agricultural University
Parbhani,
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R/o. Krishi Sarthi Nagar,
Parbhani, Dist. Parbhani.
18] Dr. Vilas S/o. Trimbakrao Wattamwar
Age 58 years, Occ. Service in
Marathwada Agricultural University
Parbhani,
R/o. Vishnu Nagar,
Parbhani, Dist. Parbhani.
19] Dr. Balasaheb S/o. Manikrao Thombre
Age 57 years, Occ. Service in
College of Agriculture Latur,
Parbhani,
under Marathwada Agricultural University
R/o. Near Medical College,
Ambajogai Road, Latur
Dist. Latur.
20] Dr. Balaji S/o. Panditrao Kurundkar
Age 58 years, Occ. Service
At present working at Wheat Research Station,
Mahabaleshwar, Under Mahatma Phule
Krishi Vidyapith, Rahuri
Taluka Rahuri, Dist. A'nagar.
21] Dr. Ramakant S/o. Ramrao Kulkarni
Age 63 years, Occ. Pensioner,
R/o. Station Road, Parbhani,
Dist. Parbhani.
22] Dr. Mahadeo S/o. Annarao Patil
Age 61 years, Occ. Pensioner,
R/o. Village Bhangali
Taluka and Dist. Latur.
23] Dr. Dnyanoba S/o. Dhondiba Nirmal,
Age 60 years, Occ. Pensioner,
R/o. Shivaji Nagar, Parbhani
Dist. Parbhani.
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24] Dr. Sharad S/o. Sahebrao Deshmukh
(Died through LRs)
Rukhminibai w/o. Sharad Deshmukh
Age 56 years, Occ. Household
R/o. Narayan Chal, Parbhani
Dist. Parbhani.
.. Petitioners
Versus
1] The State of Maharashtra
through Secretary
Agriculture, Animal Husbandry
Dairy Development and Fisheries
Department, Mantralaya Annexe,
Mumbai 32.
2] Marathwada Agriculture University
through Registrar, Marathwada
Agriculture University, Parbhani
Dist. Parbhani.
3] Maharashtra Council of Agriculture
Education and Research
through its Chairman,
the Minister for Agriculture,
Animal Husbandry, Dairy Development
and Fisheries Department,
132/B, Bhamburda, Bhosle Nagar,
Pune-07.
.. Respondents.
---
Mr. P.R. Katneshwarkar, Advocate for petitioner.
Mr. S.K. Kadam,AGP for the respondent NO.1
Mr. Vinod Patil, Advocate holding for Mr. M.N. Navandar, Advocate for
respondent No.2
Mr. S.R. Deshpande, Advocate for the respondent No.3
CORAM : A.P. DESHPANDE &
N.D. DESHPANDE,JJ.
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DATE OF RESERVING THE JUDGMENT: 16th FEBRUARY, 2010.
DATE OF PRONOUNCING THE JUDGMENT :- 26TH FEBRUARY,
2010.
ORAL JUDGMENT : – [PER A.P. DESHPANDE,J.]
1] Rule. Rule made returnable forthwith. Taken up for
final hearing by consent of parties.
The State of Maharashtra vide Govt. Resolution
dated 30th December, 1999, decided to extend the benefit
of revised University Grant Commission pay scales, as
adopted by the Indian Council of Agricultural Research and
Education, to the academic staff working in all the
Agricultural Universities and affiliated colleges in the State
with retrospective effect from 1st January, 1996. The
revised UGC pay scales are indicated in Annexure -I to the
said Government Resolution. The revision of pay scale
was in response to the communication dated 3rd March,
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1999 from the Ministry of Agricultural, Department of
Agriculture Research and Education, Government of India,
New Delhi, wherein, the Government of India informed the
State Government that, if the State Government adopts the
revised UGC Pay Scales for agricultural universities in the
State, the Central Government will provide 80% of the
additional expenditure involved for giving effect to the
revised pay scales. The central assistance was to be
available for the period commencing from 1/1/1996 to
31/3/2000. The remaining 20% of the expenditure was to
be borne by the State Government.
2] Amongst other incentives, the Govt. Resolution
also introduced a career advancement scheme, which is
contained in Clause No.4 of the Govt. Resolution which
reads thus :-
a) Minimum length of service for eligibility to
move into the grade of Assistant Professor
(Senior Scale)/Lecturer (Senior Scale) would be::: Downloaded on – 09/06/2013 15:39:27 :::
8four years for those with Ph.D., five years for
those with M.Phil. And six years for others as
Assistant Professor/Lecturer and for eligibility to
move into the grade of Assistant Professor(Selection Grade)/Lecturer(Selection
Grade)/Associate Professor, the minimum length
of service as Assistant Professor (SeniorScale)/Lecturer (Senior Scale) shall be uniformly
five years.
b) For movement into grades of Associate
Professor and above, the minimum eligibility
criterion would be Ph.D. Those teachers withoutPh.D. Can go upto the level of Assistant
Professor (Selection Grade)/Lecturer (Selection
Grade).
d) An Associate Professor with a minimum of
eight years service will be eligible for
consideration for appointment as a Professor.
3] The petitioners in this petition were initially
appointed as Assistant Professors, who are claiming the
benefit under the Career Advancement Scheme. The
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Career Advancement Scheme clearly indicate that an
Assistant Professor would move into the grade of Assistant
Professor (Senior Scale) after 4 years if possessed of
Ph.D., 5 years for those with M.Phil. and 6 years for others.
The eligibility to move into the grade of Assistant Processor
(Selection Grade)/Associate Professor, would be minimum
length of service as Assistant Professor (Senior Scale) for
5 years uniformly. It is undisputed that all the petitioners
are possessing qualification of Ph.D. The scale provided
for the post of Assistant Professor is 8000-275-13500, for
Assistant Professor (Senior Scale) is 1000-325-15200, and
for Assistant Professor (Selection Grade) it is
12000-420-18300, whereas, for Associate Professor the
scale is 12000-420-18300, which is equal to the scale
provided to Assistant Professor (Selection Grade). The
next higher post to that of Associate Professor is of
Professor and the pay scale admissible to the post of
Professor is Rs.16,400-4500-20900-500-22400.
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The petitioners under Career Advancement Scheme, were
granted the scale of Assistant Professor (Selection Grade)
which pay scale is equivalent to that of pay scale of
Associate Professor. The question that arises for
consideration in the present petition is, as to whether the
petitioners who are holding the post of Assistant Professor
substantively could be granted the pay scale of the post of
Professor.
4] Few facts, which are necessary to adjudicate the
controversy, are narrated hereinbelow :-
. Prior to the revision of pay scales, the
Government, vide Govt. Resolution dated 20th March,
1997, decided that such of the Assistant Professors, who
are in the pay scale of 3700-5700 ( as per the 4th pay
commission), possessing Ph.D. Qualification, they be
granted the nomenclature or designation as “Associate
Professor”. However, the Govt. Resolution dated 20th
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March, 1997 clarified that such Assistant Professors even
after grant of designation for name sake as “Associate
Professors” will continue to carry on the same duties and
responsibilities and there will be no change in the working
hours and/or nature of the job. It is also clarified that their
seniority in the cadre of Assistant Professor would remain
the same. In clause No.4, it is categorically stated that the
Assistant Professors who would be named/designated as
Associate Professors, would stand below the Associate
Professors. In para.5, it is also clarified that just because
the Assistant Professors holding Ph.D. Qualification are to
be designated/named as Associate Professors, they would
not be entitled to claim the post of Professor. Thus, on
close scrutiny of the Government Resolution dated 20th
March, 1997, it is crystal clear that though the Assistant
Professors with Ph.D. Qualifications in the Scale of
3700-5700 (as per 4th pay commission) were
named/designated as Associate Professors, there would
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be no change in their status, barring the change in
nomenclature, they continue to hold the post of Assistant
Professor substantively.
. It is in this background the petitioners came to
be designated as Associate Professors and hence have
described themselves as Associate Professors, in the writ
petition and are claiming benefit of pay scale admissible to
the post of Professor. The respondent No.2 University,
acting in pursuance of the Government Resolution dated
20th March, 1997, changed the nomenclature of the
petitioner’s post from Assistant Professors to that of
Associate Professors, which is for name sake only.
5] After the introduction of the revised pay scales,
the revised pay scales were not automatically made
applicable to the incumbents. However, the same were
subject to a selection process. It is the case of the
petitioners that on 16/11/2003, the petitioners were called
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for interviews and came to be awarded higher pay scale
admissible to the post of Professor, it being Rs.
16400-22400 under the Career Advancement Scheme,
with effect from the date, from which they became eligible.
Perusal of the order awarding pay scale of Professor to the
present petitioners would indicate that the higher pay
scales were granted subject to the Post-fact approval of
Maharashtra Council of Agricultural Education and
Research (MCAER for short), viz. the respondent No.3.
The order issued by the University granting higher pay sale
to the petitioners dated 26th October, 2004, further makes it
clear ” the above orders are issued subject to post facto
approval of MCAER and in case of suitability/eligibility of
any of the persons referred to above as assessed by the
University Level Selection Committee is not agreed to by
the authority concerned, the orders in respect of such
candidate will be treated as withdrawn and the payment, if
any , made will be recovered from the concerned’s pay
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and or pensionary benefits. The candidate will have to
execute an undertaking to this effect in the enclosed form
and without such undertaking no benefits of Professor’s
scale will be allowed.”
It is thus clear that though the petitioners were granted the
scale of the post of Professor under the Career
Advancement Scheme, the same was subject to the post
facto approval by the MCAER and subject to furnishing of
an undertaking that in the event, the decision is not
approved by the authority, the petitioners will have to return
the amount received in excess.
6] Thus, the petitioners started drawing the salary
in the pay scale admissible to the post of Professor though
none of the petitioners had ever entered the cadre of
Associate Professors substantively and were only for name
sake designated as Associate Professors under the
earlier Govt. Resolution dated 20th March, 1997.
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7] The University, thereafter forwarded a proposal
wherein, higher pay scale of Professor was granted to the
Associate Professors working substantively in that cadre,
so also, the present petitioners, who were not holding the
post of Associate Professor substantively, however, were
granted the said designation.
.
On receipt of the proposal from the University for
post facto approval, the respondent No.3, vide its
communication dated 5th August, 2005, turned down the
approval to the grant of pay scale of Professor to the
petitioners/Assistant Professors (Selection Grade). It is
seen that the letter dated 5th August, 2005,issued by the
respondent No.3, invited attention of the University to a
letter received from the Additional Secretary, Government
of India, dated 19/4/2004, and more particularly, to the
clarification at Sr.No.5., and the respondent No.2 was
directed to prepare a proper proposal in the light of the
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clarification at Sr. No. 5(B). After introduction of the pay
revision, certain anomalies and difficulties had arisen in the
implementation of the Career Advancement Scheme and
hence, in regard to the doubts expressed and references
received, seeking clarification, the letter dated 19th April,
2004 was addressed by the Ministry of Agriculture,
department of Agricultural Research and Education, to the
Chief Secretaries of all the States. The relevant query and
the clarification is at item No. 5(b) which reads thus :-
Points of Doubt Clarification
Sr.No.
5(b) Whether a Lecturer Since 8 years of service as
(Selection Grade) on Associate Professor/Reader is
acquiring Ph.D. Degree mandatory for being considered
would be promoted as for the post of Professor, a
Principal Professor Lecturer (Selection Grade) would
irrespective of the date be promoted as Professor only
of acquiring the Ph.D. after he completes eight years
Degree service after he becomes
Associate Professor/Reader on
acquiring Ph.D. Degree.
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. On the advise of the respondent No.3, the
University proceeded to withdraw the higher scale granted
to the present petitioners of the post of Professor vide
orders dated 30/1/208 and 4/2/2008. Aggrieved thereby,
the present writ petition came to be filed. In similar
situation, the Registrar of Dr. Balasaheb Sawant Konkan
Krishi Vidyapith, Ratnagiri, had sought clarification from the
Ministry of Agriculture, Government of India. The
clarification issued on 22/8/2007, in regard to point N.8, is
very relevant. In the said communication, it is stated that it
has been clarified that for promotion to the post of
Professor (promotion) 8 years service as Reader/Associate
Professor with Ph.D. In the revised pay scale of Rs.
12000-18300 must remain the minimum eligibility.
Thereafter, it is stated that ” In other words, only the
Readers/Associate Professors in the scale of Rs.
12,000-18300, with Ph.D. Degree are eligible for placement
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in the scale of Professor after completion of 8 years service
in the grade.” It is then stated that, “There is no provision
in the revised Career Advancement Scheme notified by the
UGC, whereby, the Assistant Professors (Selection Grade)
could be given the scale of Professor.”
10] It is to be seen that the revised pay scales are to
be uniformly applied, in accordance with the scales notified
by the UGC. Career Advancement Scheme itself provides
for redressal of anomalies. Clause 6 thereof, reads thus :-
“.Redressal of Anomalies :
Anomalies arising after implementation of
this order/notification shall be brought to the notice of
ICAR which will be considered in consultation with
DOPT/Dept. Of Expr. Ministry of Finance..”
. We are also informed by the learned
counsel appearing for the respondents, that no other
agricultural university in the State of Maharashtra has
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19granted revised scale of Professor to the Assistant
Professors ( Selection Grade).
11] In the above factual matrix, two fold submissions
are made by Shri Katneshwarkar, the learned counsel for
the petitioners.
[i] That, the present petitioners having been
granted the status of Associate Professors in the year
1997 itself, they are entitled to be paid in the scale
admissible to the post of Professor at par with the
Associate Professors who are holding the said post
substantively.
. Reverting back to clause 4 of the Govt.
Resolution,it is seen that the minimum length of service for
eligibility to move into the Grade of Assistant Professor
(Senior Scale) and minimum length of service for eligibility
to move into the grade of Assistant Professor (Selection
Grade) is stipulated for, in sub-clause (a). However, sub-
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clause (C) lays down that Associate Professor with a
minimum 8 years service will be eligible for consideration
for appointment as Professor. It is nowhere stipulated in
the said Govt. Resolution that an Assistant Professor would
be eligible to the pay scale admissible to the post of
Professor.
.
As stated hereinabove, only for name sake, the
Assistant Professors with Ph.D. Qualification were
designated as Associate Professors, all other conditions of
service such as duties, responsibilities, working hours,
seniority etc., remaining the same.
12] The decision of the State Government to
change the nomenclature of the post occupied by the
Assistant Professors with Ph.D. Degrees to that of
Associate Professors or in other words designating the
petitioners as Associate Professors, in our considered
opinion, does not confer or bestow a status of Associate
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Professor on the Assistant Professors. At no stretch of
imagination can it be said that, on conferring a new
nomenclature , there had occasioned change in the cadre
of the petitioners. Their cadre remained the same i.e. of
Assistant Professors. In that view of the matter, we reject
the contention of the learned counsel for the petitioners
that the present petitioners are covered by clause 4(c) of
the Career Advancement Scheme.
13] It is next contended that the respondent No.3
MCAER, has no role to play under the scheme of the Act or
the Government Resolution in the matter of grant or
refusal of approval to the decision of the University to grant
higher pay scale.
. We are not in agreement with the said
submission.
14] Perusal of Section 12 of the Maharashtra
Agricultural Universities Act, 1983, provides for constitution
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of State Council and its powers and functions, which reads
thus :-
12.(1) For the purposes of effective
coordination in the activities of all
Agricultural Universities in the State,
particularly in relation to teaching, research,
extension education and other matters of
common interests and for having periodical
evaluation of the functioning of the
Universities and supervision over the
Universities and their academic and
financial activities and programmes, the
State Government shall constitute a Council
to be called ” the Maharashtra Council of
Agricultural Education and Research”.
12(2) (a) the Minister for Agriculture,
Maharashtra state, shall be the Chairman of the
State Council;
(b) The State Government may appoint a
person who in its opinion, has expertise in any
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aspect of agricultural development, to be the
Vice-Chairman of the Council.
(c) The Council shall consist of the following
other members, namely :-
(i) the Vice-Chancellors of the Agricultural
Universities in the State as ex-officio members;
(ii) the Chief Secretary to the Government and
the Agriculture, Finance and Planning
Secretaries to Government as ex-officio
members;
(iii) one representative of the Indian Council of
Agricultural research to be appointed by the
State Government;
(iv) four non-official members of the Executive
Councils concerned to be appointed by the State
Government, one from each Agricultural
University area;
(v) one member to be appointed by the
Chancellor;
(vi) two agricultural scientists to be appointed by
the State Government;
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(vii) the member-secretary, a whole time officer,
to be appointed by the State Government.
12 (3) Without prejudice to the generality of the
provisions of sub-section (1), the Council shall have the
following powers and functions, namely :-
(a) to approve the annual plans of the
Universities and the schemes forming part of
such plans;
(b) subject to the provisions of Section 54, to
approve the annual financial estimates of the
Universities;
(c) to grant approval to any proposals by the
Universities for re-appropriation of budget
grants;
(d) to grant permission to the Universities for
starting any new faculties, courses or disciplinesor departments, as well as introduction of
additional elective subjects for any curriculum;
(e) to grant administrative approval to any
building proposed to be constructed by any
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University, the cost of which is estimated to be
three lakhs rupees or more ;
(f) to grant administrative approval to any
equipment proposed to be purchased by any
University, the cost of which is estimated to be
five lakhs rupees or more;
(g) to review, from time to time, the work done
in the
Universities relating to agricultural
education, teaching, research and extension
education programmes including the work
connected with animal husbandry, horticulture,
forestry, dairy science and food technology and
fisheries with a view to achieving effective co-
ordination in the activities of the Universities and
to give them suitable guidance and directions;
(h) to apprise the Chancellor of the functioning
of the Universities in the light of the periodical
evaluation made by it;
(i) to move the State Government to release
funds to the Universities, both plan and non-plan
at such intervals as may be found necessary, on
the basis of the decisions taken by the Councils;
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(j) to advise the State Government on any
matters relating to the activities of the
Universities, which may be referred to it by the
State Government.
(k) to exercise such other powers and to
discharge such other function as are incidental
to or requisite to give effect to the provisions of
this Act.ig
12(4)(a) The council, in the exercise of its
powers and the discharge of its functions, shall
have the power to issue necessary directions to
the Universities, under intimation to the
Chancellor, which shall be final and binding on
the Universities.
(b) It shall be the duty of the Vice-Chancellor
concerned to ensure that such directions are
promptly and properly implemented, and for this
purpose the Vice-Chancellor shall have and
exercise all the necessary powers as provided in
sub-section (6) of Section 18.”
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15] Placing reliance on the provisions of Section 12,
the learned counsel Shri S.R. Deshpande, appearing for
the respondent No.3 MCAER, has rightly submitted that the
State Council ( MCAER ) is a high powered Authority
having supervisory power over the functioning of the
Universities. The Vice Chancellors of all the Agricultural
Universities in the State are Ex-officio Members.
16] We have no iota of doubt that for the purpose of
effective coordination in the activities of the Agricultural
Universities in the State, particularly in relation to Academic
and financial activities, the MCAER has been constituted.
The University on its own, cannot grant higher pay scale
without the sanction of the respondent No.3 – MCAER. All
Annual financial estimates and budget appropriation is
made subject to the supervision of the respondent NO.3.
The university has rightly sought post facto approval from
the respondent No.3 – State council in the matter of grant
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of higher pay scale to the present petitioners after granting
higher pay scales provisionally. The University has also
rightly withdrawn the higher pay scale granted to the
petitioners in compliance of the directions issued by the
respondent No.3. We do not see any merit in the
contention raised by the learned counsel for the petitioners
that the respondent No.3 has no power, authority or
jurisdiction to refuse the approval sought for, by the
University.
17] In the result, there being no merit in the petition,
the same is dismissed. Rule is discharged.
[N.D. DESHPANDE,J.] [A.P. DESHPANDE.J.]
Grt/-
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