Bombay High Court
Shivaji S/O. Dhansing Pawar vs The Secretary on 15 April, 2011
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
WRIT PETITION NO. 10991 OF 2010
WITH
WRIT PETITION NO. 11005 OF 2010
WRIT PETITION NO. 10991 OF 2010
Shivaji s/o. Dhansing Pawar,
Age : 43 years,
Occupation : Nil,
R/o. at Jairam Tanda,
Post : Pachegaon,
Taluka : Georai,
District : Beed. .. Petitioner.
versus
1. The Secretary,
Marathwada Shikshan Prasarak
Mandal, Aurangabad.
2. The Principal,
R.B. Attal College, Georai,
Taluka : Georai,
District : Beed.
3. The Registrar,
Dr. Babasaheb Ambedkar Marathwada
University, Aurangabad.
::: Downloaded on - 09/06/2013 17:11:34 :::
(2)
4. The Joint Director of Higher Education,
Station Road, Aurangabad. .. Respondents.
.......................
WRIT PETITION NO. 11005 OF 2010
Arun s/o. Vitthalrao Pawar,
Age : 30 years,
Occupation : Nil,
R/o. at Malewadi Tanda,
Post : Parali,
District : Beed. .. Petitioner.
versus
1. The Secretary,
Marathwada Shikshan Prasarak
Mandal, Aurangabad.
2. The Principal,
R.B. Attal College, Georai,
Taluka : Georai,
District : Beed.
3. The Registrar,
Dr. Babasaheb Ambedkar Marathwada
University, Aurangabad.
4. The Joint Director of Higher Education,
Station Road, Aurangabad. .. Respondents.
.......................
::: Downloaded on - 09/06/2013 17:11:34 :::
(3)
Mr. V.L. Dhoble, Advocate, for the petitioners
in both petitions.
Mr. V.D. Salunke, Advocate, with Mr. S.R. Bharad,
Advocate, for respondent nos.1 and 2 in both petitions.
Mr. K.M. Suryawanshi, Advocate, for
respondent no.3 in both petitions.
Mr. D.R. Korde, Assistant Government Pleader,
for respondent no.4 in both petitions.
ig ........................
CORAM : B.P. DHARMADHIKARI, J.
Date of reserving the
judgment : 7th April 2011
Date of pronouncing the
judgment : 15th April 2011
JUDGMENT :
1. By these petitions filed under Art. 226 of the Constitution of India, the respective employees of the respondent 1 & 2 are challenging the common judgment delivered by the presiding officer, College Tribunal for Dr. Babasaheb Ambedkar University, Aurangabad in Appeal nos. BAMU-02/2009 & BAMU -14/2008 respectively dismissing the same. The orders of termination dated 30/4/2008 issued by respondent 1 & 2 are ::: Downloaded on - 09/06/2013 17:11:34 ::: (4) upheld by the College Tribunal. Looking to the nature of controversy, both matters are heard finally by issuing Rule and making it returnable forthwith by consent of the parties.
2. Shri Dhoble, the learned Counsel for Petitioners has contended that petitioner Shivaji had worked for almost 10 years prior to his sudden termination and was selected by duly constituted selection committee at least on 4 occasions. Other petitioner Arun had also worked for about 3 years after undergoing similar selection process. They were already M.Sc., B.Ed. & M.Phil. in concerned subjects ie physics & botany respectively and selection was after public advertisement. He invites attention to communication dated 9/12/2004 by University Grants Commission ( UGC for short) stating that candidates not clearing NET/ SLET examination can be appointed when NET/ SLET qualified candidates are not available when interviews were held. The proposal to appoint such non-NET/SLET holders are to be submitted to it for scrutiny & cleared by it. Consequential policy came to be issued by the State Government on 13/1/2005. More than 2 years thereafter the proposals of these petitioners were then forwarded by the management to Dr. Babasaheb Ambedkar University, Aurangabad ie. BAMU on 3/9/2007 for its onward transmission to UGC. The UGC vide its letter dated 6/2/2008 relaxed the ::: Downloaded on - 09/06/2013 17:11:34 ::: (5) NET/SLET condition for petitioners subject to their clearing the NET examination in concerned subject within 2 years from the date of communication of exemption to them. Immediately thereafter, the management by order dated 30/4/2008 informed them that their appointments were coming to an end on very same day & hence, terminated & relieved them. This was then challenged by filing two appeals under Section 59 of the Maharashtra University Act, 1994 and by impugned common judgment dated 5/10/2010, the College Tribunal dismissed their appeals after holding that their appointments were for specified period and hence, they could not have been continued further.
Approval given by BAMU to both petitioners on 4/7/2008 for period of two years from 6/2/2008 as per UGC relaxation & subject to orders of Nagpur bench of this High Court is relied upon to demonstrate the highhandedness in the action of management and error in approach of College Tribunal. It is urged that after 6/2/2008, there was no question of their appointments coming to an end by efflux of time. Adv. Dhoble states that both the petitioners cleared M. Phil. examination within the period stipulated by UGC & by BAMU and hence, had every right to claim relief of reinstatement. Division Bench judgment of the Nagpur bench reported at 2010 (4) Mah.L.J. 572 - Sudhir S/o Sharadrao Hunge vs. State of Maharashtra is also pressed into service to point out that insertion of NET SLET ::: Downloaded on - 09/06/2013 17:11:34 ::: (6) qualification is by government notification dated 11/7/2009 and the same is not retrospective.
3. Adv. Bharad for Rs. 1 & 2 management has supported the order of the College Tribunal. He invites attention to advertisement in pursuance to which petitioners were given job to urge the need of NET/ SLET qualification and points out that in absence of said qualification, management had no option but to appoint them on contract basis. There was no selection & appointments after 6/2/2008 when UGC granted them exemption of two years. The BAMU's approval on 4/7/2008 is inconsequential as petitioners were not then selected by duly constituted selection committee and their earlier appointments had lapsed due to efflux of time on 30/4/2008. After management issued fresh advertisement, it was incumbent for them to apply & participate in competitive selection process as exempted candidates. Even within specified period of two years the NET exam has not been cleared. They never had any right to post and in this situation view taken by College Tribunal does not call for any interference.
4. Before proceeding further to consider the challenge on merits, I find it appropriate to look into the view of Division bench of this Court in Sudhir S/o Sharadrao Hunge vs. State of ::: Downloaded on - 09/06/2013 17:11:34 ::: (7) Maharashtra (supra). Its perusal reveals the undisputed position there that all petitioners were holding the prescribed necessary qualification viz. M. Phil. & their recruitment was after the approval to the relevant advertisements by University as also in pursuance thereof. There was no dispute that till 11/7/2009, the NET/ SLET qualification was not necessary & M. Phil. was also a recognised qualification. The Division bench found that NET /SLET became compulsory for the first time on 11/7/2009 when UGC issued gazette notification and hence, it was prospective in operation ie. it did not prejudice selections made on the strength of advertisements approved by University before said date. Thus, there was no dispute about M. Phil. being a recognized minimum qualification in force prior to 11/7/2009 and valid open selections as per law after public advertisements in which all M. Phil. holders got due opportunity to compete.
Here last advertisement in response to which petitioners before me got selected are dated 13/9/2003 & 28/6/2005 respectively.
The advertisements stipulate NET /SLET or Ph.D. as the requisite qualification with condition that candidates with M. Phil. acquired prior to 31/12/1993 or submitting the Ph. D. thesis prior to 31/12/2002 would also be eligible. It is also added that as per government resolution dated 19/7/2003, candidates not possessing NET/SLET qualification but otherwise qualified could also apply. The said advertisements therefore do not show ::: Downloaded on - 09/06/2013 17:11:34 ::: (8) that candidates not possessing M. Phil. qualification could have applied or been selected. Admittedly, petitioners were not possessing even M. Phil. till April, 2009 & secured it about one year after their impugned termination dated 30/4/2008. The Division Bench judgment does not show that a non-M. Phil. candidate could have been appointed before 11/7/2009. On the contrary, it shows that as per UGC (Minimum Qualifications Required for the Appointment and Career Advancement of Teachers in Universities & Institutions Affiliated to it)(2nd Amendment) Regulations,2006; candidates having M. Phil. qualification were only exempt from NET/ SLET. Observations in para 6 & 7 of this judgment show that all the petitioners before the Division Bench were possessing this qualification of M. Phil.
prior to their selections. The view in Sudhir S/o Sharadrao Hunge vs. State of Maharashtra (supra) therefore is not relevant in so far as termination of present petitioners is concerned.
5. Petitioner in WP 10991/2010 has produced a statement of mark which does not bear any date & mentions that he appeared for April, 2007 examination. It carries a seal/stamp that he passed viva voce on 29/9/2008. Thus before September, 2008 he had not cleared M. Phil. In paragraph 16 of his petition, he claims that he passed M. Phil in April,2009. Other petitioner has produced a provisional certificate which shows his ::: Downloaded on - 09/06/2013 17:11:35 ::: (9) registration number 066160441 dated 8/4/2009 and certifies that he passed M. Phil (botany) examination held in April 2009. He also claims in paragraph 16 of his petition that he passed M. Phil in April,2009. Both claim that as NET became compulsory prospectively from 11/7/2009, as they had M. Phil prior to 11/7/2009, they were eligible. The contention is misconceived as they acquire said qualification after their termination & hence, their selections earlier by the respondent management was not due to that M. Phil. Exemption or relaxation given to them is for procuring NET and not M. Phil. Their M. Phil in 2009 is not relevant or contemplated in advertisements in response to which they last joined the services.
6. Last selection of Petitioner in WP 10991/2010 has been on 6/7/2007 & on 25/1/2008, BAMU granted him approval from 23/7/2007 on contract basis on fixed salary for one academic year 2007--2008. Other petitioner is also last selected on 6/7/2007 and approval by BAMU is of same date, of same nature & for same period of one academic year 2007--2008 from 14/9/2007. Thus it is after UGC (Minimum Qualifications Required for the Appointment and Career Advancement of Teachers in Universities & Institutions Affiliated to it)(2nd Amendment) Regulations,2006; which exempted candidates having M. Phil. qualification only from NET. Moreover, the ::: Downloaded on - 09/06/2013 17:11:35 ::: ( 10 ) communication of UGC dated 9/12/2004 laying down general criteria for grant of exemption from NET stipulated that same can be granted only if NET/SLET qualified or exempted candidates were not available when interviews were conducted. If exemption is granted, such candidate must compulsorily clear NET within 2 years. Colleges & Universities as also Governments had been advised not to appoint such unqualified candidates till clearance is received from UGC. Exemption is envisaged only in subject in which NET/SLET was not being conducted or sufficient number of candidates were not available with NET/SLET for a specified period only. Appointment letter was directed to be issued only after receipt of relaxation from UGC. These stipulations have not been followed here in as much as after date of relaxation ie 6/2/2008, management has not issued any appointment to petitioners and petitioners are claiming right on the basis of selections & appointments prior to 6/2/2008. BAMU had on 25/1/2008 ie before grant of relaxation by UGC given approval to both the petitioners for one academic year 2007--2008 ie till 30/4/2008 only. It is not the case of petitioners that after their termination on 30/4/2008 or after 6/2/2008 any other appointment order was given to them. The grant of approval by BAMU on 4/7/2008 for period of two years to them in terms of relaxation order dated 6/2/2008 by UGC therefore does not confer any right upon the petitioners. In any ::: Downloaded on - 09/06/2013 17:11:35 ::: ( 11 ) case, they have not obtained NET within prescribed period of two years even as per this approval.
7. Both the petitioners therefore have failed to show that after 9/12/2004 UGC directions or its 2006 Regulations, they were qualified to be selected as lecturer. As per last appointment & approval, they were only on contract basis & till end of academic year 2007 - 2008. They were therefore not occupying any post & were never placed on probation. Thus there is no scope to consider the argument of deemed permanency here. Their time bound appointment on contract basis came to an end on 30/4/2008 because of expiry of stipulated period. In any case, as the petitioners were exempted candidates, they could have applied in response to next advertisement published on 27/2/2009 by the management to fill in the post of lecturer in Physics or Botany but then they chose not to apply & compete. Management got qualified candidates in response to this advancement dated 27/2/2009 & has employed them. The finding of College Tribunal on these lines is not even assailed before this Court.
8. Attack on contractual nature of appointments or then reliance upon past long service rendered or their earlier selections by these petitioners is therefore not decisive at all in the above ::: Downloaded on - 09/06/2013 17:11:35 ::: ( 12 ) background. The petitioners have not even pointed out efforts, if any, made by them to secure NET qualification after 6/2/2008 or then within period of two years since then during which they were exempted candidates due to UGC relaxation operating in their favour. They have attempted to show acquisition of M. Phil in April,2009 as sufficient for their reinstatement. This M. Phil does not assist their case & cause. In AIR 2007 S.C. 373 --"State of Maharashtra v. Shashikant S. Pujari" S.26, S.14 of the University Grants Commission Act (3 of 1956), & Regn.2 of the University Grants Commission (Qualifications Required of a Person to be Appointed to the Teaching Staff of a University and Institutions Affiliated to it) Regulations (1991), are looked into. While overruling the Division Bench judgment of this Court reported at 2003 Lab IC 1743 (Bom), Hon. Apex Court has held that a person can avail the benefit of relaxation notification only when he comes within the purview thereof and when he satisfies the conditions specified therein. Petitioners here fail to meet the conditions imposed in relaxation or exemption communication dated 6/2/2008. I do not find any of their legal rights violated in the matter. The College Tribunal has correctly appropriated the controversy and I do not find any jurisdictional error or perversity.
::: Downloaded on - 09/06/2013 17:11:35 :::( 13 )
9. In the result, both the Petitions are dismissed, Rule discharged in both matters with no orders as to costs.
( B.P. DHARMADHIKARI ) JUDGE .........................
DRAGON File: bgp/wp10991etc ::: Downloaded on - 09/06/2013 17:11:35 :::