RANCHHODBHAI S DALWADI Vs. GUJARAT AGRICULTURAL UNIVERSITY

JUDGEMENT

(1.) The petitioner joined Government service as a Clerk with effect from 1/11/1943 In due course he was promoted to the post of Superintendent in the Department of Agriculture when his services came to be loaned to the Gujarat Agricultural University which started functioning with effect from 1/06/1972 While he was serving on deputation in the Agricultural University a vacancy arose in the cadre of Legal Assistant and the petitioner being a Law Graduate and fully acquainted with departmental activities was considered for appointment to the said post and was temporarily promoted as Legal Assistant in the scale of Rs. 350-850 (revised to Rs. 650-1200 with effect from 1/01/1973). Annexure A to the petition is a copy of the order temporarily promoting the petitioner to the post of Legal Assistant as a stop-gap arrangement. By Annexure B the pay of the petitioner was fixed at Rs. 525.00 in the pay scale of Rs 350-850 with effect from 7/02/1973. Subsequently the University issued an advertisement No. 19 of 1975 dated 22/11/1975 for filling in the post of Legal Assistant on a long term basis. The petitioner applied for appointment to the said post by his application Annexure C dated 26/12/1975. He was interviewed by the Selection Committee and on being found fit a letter of appointment Annexure D came to be issued. It may be mentioned that while applying for the post of Legal Assistant the petitioner had in paragraph 6 of his application Annexure C stated as under:

(2.) Sec. 41 of the Gujarat Agricultural University Act 1969 (hereinafter called the Act) contemplates the submission of annual accounts and the balance sheet to the State Government to enable it to cause an audit thereof to be carried out by a Chartered Accountant or by an auditor appointed by the State Government in consultation with the Accountant General Gujarat State. Sub-sec. (3) of sec. 41 enjoins upon the Board of Management to submit a copy of the accounts and the audit report to the State Government along with the statement and the action taken by the University on the audit report. The State Government is required to cause the same to be laid before the State Legislature. In view of this provision it appears that the Junior Assistant Examiner University Audit Circle while reviewing the proceedings of the Board of Management in regard to the appointment of the petitioner to the post of Legal Assistant in the pay scale of Rs. 650-1200 starting at Rs. 920.00 with effect from 24th September 1976 raised an objection that his pay was not fixed in accordance with Rule 330 of the Bombay Civil Service Rules 1959 He further directed that the reason for not fixing his pay in accordance with the said provision during re-employment and violation of the rules may be explained. He therefore called upon the Registrar of the University to fix the pay of the petitioner consistently with Rule 330 of B. C. S. Rules and to recover the over-payment made to the petitioner. On receipt of the audit nose Annexure L the Vice-Chancellors office observed that since the appointment of the petitioner was by way of re-employment his pay was required to be fixed according to Rule 45.1 of the Gujarat Agricultural University Employees (Service) Rules (hereinafter called the Rules) and hence the decision of the Board of Management and the Selection Committee to concede a higher starting pay of Rs. 920.00 to the petitioner under Rule 39 of the Rules was not proper. It therefore directed that the pay of the petitioner should be refixed consistently with Rule 330 of the B. C. S. Rules on his re-employment with effect from 24/09/1976 and regularised from time to time and over-payments to be recovered under intimation to audit. Pursuant to this direction issued by the Vice-Chancellor of the -University the pay of the petitioner was refixed at Rs. 650.00 in the pay scale of Rs. 650-1200 minus pension and equivalent of death-cum- retirement gratuity with effect from 24/09/1976 and Rs. 700.00 in the scale of Rs. 700-1500 minus pension and equivalent of death-cum -retirement gratuity with effect from 27/04/1977. It was further directed that on refixation the excess amount already drawn may be worked out and recovered in suitable instalments from the petitioners salary by the Accountant of the University at Anand. On receipt of a copy of this order the petitioner wrote to the Registrar of the university on 21/02/1979 Annexure P pointing out that his salary could not be fixed as per Rule 330 of B. C. S. Rules as his appointment on the post of Legal Assistant in the University was a fresh appointment on a higher post carrying a higher pay scale and not on the same post or equivalent post in the pay scale of Rs. 500-900 from which he voluntarily retired. As this point of view put forward by him was not accepted by the University the petitioner filed this petition challenging the order of the University refixing his salary at the minimum in the pay scale of Rs. 650-1200 minus pension and equivalent of D. C. R. O. On the post of Legal Assistant and Rs. 700.00 in the scale of Rs. 700- 1500 minus pension and equivalent of D. C. R. G. in the next higher post of Special Officer Anand.

(3.) Before I proceed to set out the submissions made at the Bar it would be advantageous to notice a few provisions of the Act and Rules. Section 7(12) empowers the University to create administrative ministerial and other posts and to appoint persons to such posts. Section 23(1) next provides that subject to the provisions of the Act the designations qualifications. method of recruitment pay allowances and otter terms and conditions of service of all employees of the University shall be such as may from time to time be determined by statutes. Section 26 empowers the Board of Management to approve the recommendations for appointment of officers teachers and other staff of the University in the prescribed manner meaning thereby prescribed by statutes. The power to make amend and repeal the statutes has been conferred on the Board by clause(t) of sub-sec. (1) of sec. 26 of the Act. Section is catalogues the matters in respect whereof statutes may be made; the statutes may provide for the powers functions duties manner of appointment and conditions of service of the officers of the University other than the Vice-Chancellor the designations qualifications method of recruitment pay allowances and other conditions of service of various categories of employees of the University and their powers duties and the qualification and manner of appointment of teachers and other non-teaching staff.