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LPA/75120/2008 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 751 of 2008
In
SPECIAL
CIVIL APPLICATION No. 8130 of 2008
With
CIVIL
APPLICATION No. 8747 of
2008
=====================================================
R
M CHAUHAN - Appellant(s)
Versus
VICE
CHANCELLOR- S.D. AGRICUL-TURAL UNIVERSITY & 3 - Respondent(s)
=====================================================
Appearance :
Mrs.Sangita
Pahwa for M/S THAKKAR ASSOC. for Appellant
MR
MITUL K SHELAT for Respondent Nos.1 to 3
MR GM JOSHI for
Respondent No.
4
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 30/07/2008
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
1. The
appellant working as a Professor with the respondent-University was
given additional charge of the Principal by order dated 30-4-2007,
Annexure E to the petition. Earlier that charge was given to
respondent No.4. At a later point of time i.e. on 10-6-2008, an order
was passed whereby additional charge of the Principal was withdrawn
from the petitioner and was directed to hand it over to respondent
No.4 by order Annexure A . The petitioner aggrieved thereby
approached this Court by preferring Special Civil Application No.8130
of 2008. The said petition came to be dismissed by an order dated
9-7-2008 and hence this appeal.
2. The
grievance of the appellant is that the impugned order is passed on a
premise that the respondent No.4 is senior to the petitioner, whereas
in fact the respondent No.4 is junior to him in the cadre of
Professor, although respondent No.4 was appointed as Professor
(Promotee) under Career Advancement Scheme (CAS), which is not a
promotion. Respondent No.4 in fact entered the cadre of Professor in
the year 2006 whereas the petitioner entered the said cadre in 2005
by direct recruitment and, therefore, earlier seniority could not
have been considered. The appellant’s grievance, therefore, is that
by passing the impugned order, purporting to be an order withdrawing
charge, a substantive right of seniority is determined by
respondents-authorities.
3. The
case of the respondents-authorities i.e. respondents No.1 to 3 is
that though there is a reference to seniority in the impugned order,
respondents-authorities never intended and have in fact not decided
the question of inter se seniority between the petitioner and the
respondent No.4. The charge has been withdrawn and directed to be
handed over to respondent No.4 on account of administrative exigency.
The administrative exigency is explained by stating that the
petitioner was holding two additional charges whereas respondent No.4
did not hold any charge and, therefore, one charge is withdrawn from
the petitioner-appellant and directed to be handed over to respondent
No.4, to balance the work-load.
4. Learned
single Judge, after considering the rival submissions, concluded that
the Court is not determining inter se seniority or even seniority of
cadre of Professor but only the question of right of the petitioner
to hold additional charge of Principal. Learned single Judge was
satisfied that administrative exigency is explained by the
respondent-University and necessity of assigning charge to respondent
No.4 and, therefore, the action of the respondents-authorities cannot
be said to be unreasonable, arbitrary, unfair or non-transparent and
violative of Article 14 of Constitution of India or in contravention
of the law laid down in Dr.J.N.Banavalikar v. Municipal
Corporation of Delhi and another, AIR 1996 SC 326 and dismissed
the petition.
5. We
have heard learned advocate Mrs.Sangita Pahwa for the appellant,
Mr.Mitul K.Shelat for respondents No.1 to 3 and Mr.G.M.Joshi for
respondent No.4.
6. Mrs.Pahwa
has raised the same contentions as narrated above and has submitted
that the cadre of Professor (Direct Recruit) and cadre of Professor
(Promotion) are two distinct cadres and, therefore, inter se
seniority is not comparable. That apart, the conduct of the
Respondent-University does indicate that the petitioner was senior
and by impugned order the University has deviated from its past
practice of handing over charge of the Principal to the senior most
Professor. She submitted that the respondents-authorities have not
stated anything about administrative exigency in the impugned order
and now that stand cannot be taken by the other side. The order is
founded mainly on seniority thereby. It was submitted by Mrs.Pahwa
that when question of seniority would arise in future, this order
would stare in the face of the petitioner and may damage his case.
Even otherwise, in absence of bonafides, the charge could not have
been withdrawn from the petitioner. She submitted, therefore, that
the appeal may be entertained.
7. Learned
advocate Mr.Shealt states at the outset that the
respondents-authorities have no intention and have in fact not
decided the question of inter se seniority between the petitioner and
respondent No.4. He also submitted that the impugned order is only in
respect of withdrawal and handing over of charge and that was based
on administrative exigency, explained in the affidavit in reply. The
petitioner-appellant has no substantive or fundamental right to hold
the additional charge and, therefore, the petition has rightly been
rejected by the learned single Judge. Thus,no interference is called
for and the appeal may, therefore, be dismissed.
8. Mr.Joshi
has also made a statement at the Bar that respondent No.4 does not
claim and would not claim any seniority over the petitioner on the
basis of this order, as stated by the respondent No.4 in his
affidavit-in-reply.
9. We
have considered the submissions made by the learned advocates for
the parties.
10. In
our view, the impugned order is basically an order withdrawing
additional charge from the petitioner and handing it over to
respondent No.4, but the reasonings given for passing the order had
generated an apprehension in the mind of the petitioner that by this
order his seniority is also determined. But it is stated in the
affidavit-in-reply as well as a statement is made by learned advocate
Mr.Shelat at the Bar that the University did not intent nor has it
determined the question of inter se seniority between the petitioner
and respondent No.4 and rightly so, because in our opinion, by
impugned order that question is not decided.
11. Once
the question of seniority gets detached from the impugned order, the
order remains is that of withdrawing additional charge from the
petitioner. There does not appear any rule that charge of the
Principal has to be kept with the senior most Professor though there
may be a practice. But this being a purely administrative question,
it is within the domain of the authorities at the realm of the
affairs to determine to whom to hand over the charge and once it is
found that the order does not smell of any malafide, it is not proper
to subject such an order to a judicial review. It would not be
appropriate for us to go into the question of nature of
administrative exigency and we, therefore, do not go into it.
12. Under
the circumstances, we do not find any merit in the appeal. Appeal
stands dismissed.
CIVIL
APPLICATION No. 8747 of 2008
In
the light of dismissal of appeal, the Civil Application does not
survive and stands disposed of accordingly.
(A.L.Dave,J)
(Smt.Abhilasha
Kumari,J)
arg
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