Bombay High Court
Prof. B.G. Birajdar And Ors vs The State Of Maharashtra And Ors on 3 May, 2019
Author: Dama Seshadri Naidu
Bench: B.R.Gavai, Dama Seshadri Naidu
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6115 OF 2018
Mrs. Manisha Yogesh Khaladkar & ors. ...Petitioners
v/s.
The State of Maharashtra & Others ... Respondents
WITH
CIVIL APPLICATION NO.120 OF 2019
IN
WRIT PETITION NO. 6115 OF 2018
Dr.Mrs.Vijaya Sanjay Rajguru ... Applicant
In the matter between
Mrs. Manisha Yogesh Khaladkar & ors. ... Petitioners
v/s.
The State of Maharashtra & Others ... Respondents
ALONGWITH
WRIT PETITION NO. 7072 OF 2018
Prof. B.G.Birajdar & Ors. ... Petitioners
v/s.
The State of Maharashtra & Others ... Respondents
WITH
CIVIL APPLICATION NO.119 OF 2018
IN
WRIT PETITION NO. 7072 OF 2018
Mr. R.P.Thanedar & anr. ... Applicants
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In the matter between
Prof. B.G.Birajdar & Ors. ... Petitioners
v/s.
The State of Maharashtra & Others ... Respondents
ALONGWITH
WRIT PETITION NO. 6702 OF 2018
Dr. Chetankumar Yashawant Patil ... Petitioner
v/s.
State of Maharashtra & others ... Respondents
Mr. A.V.Anturkar, Sr. Advocate with Mr.Yatin Malvankar i/b. Mr.Amol
Gatne, Mr.Ajinkya M. Udane & Mr. S.M.Phatak, advocates for petitioners
in all writ petitions and for applicants in civil applications.
Mr. Amit B. Borkar for respondent no.3 in writ petitions.
Mr.L.M.Acharya, Special Counsel with Mrs.Shruti D.Vyas, B Panel
Counsel for respondents 1 & 2.
CORAM: B.R.GAVAI &
DAMA SESHADRI NAIDU,JJ
JUDGMENT RESERVED ON: 15 th APRIL 2019
JUDGMENT PRONOUNCED ON: 03 rd May 2019.
JUDGMENT (PER DAMA SESHADRI NAIDU,J)
Introduction:
This Writ petition poses a familiar, oft-repeated question: can the Court judicially review an employee's transfer made on administrative ::: Uploaded on - 06/05/2019 ::: Downloaded on - 08/04/2020 14:45:02 ::: 3 Wp6115.18group grounds? The answer could have been plain. But this question has, plain as it seems, a different factual background. Before we attempt to answer the question of transfer, we ought to answer another question: Are the transferred employees under the administrative control of the authorities that transferred them?
2. The government has transferred a batch of employees-- the Assistant professors--from one college to another. Yet the college from which the batch has been transferred is an autonomous institute. Though the transferred employees were recruited before the college became autonomous, they maintain that post-autonomy, the government has ceased to control them; so the order of transfer is ultra vires.
3. If the transferred employees are government servants, they may still question the transfer, though on limited grounds; but the forum changes. That is, they have an efficacious alternative remedy.
4. Now, therefore, we need to answer these questions:
(a) Are the petitioners, the transferred employees, the government servants?
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(b) If they are government servants, is this Court still inclined to judicially review the government order of transfer, despite the petitioners' having an efficacious alternative forum: the Maharashtra Administrative Tribunal?
Facts:
5. In WP No.6115 of 2018, there are 13 petitioners; the first petitioner represents the remaining 12 as their Power of Attorney holder. The petitioners are Assistant Professors working in the 3rd respondent college, an autonomous Engineering College ("the Institute"). The petitioners 1, 6, 7, 8, 9, 10, 11, and 12 are married women having, as they assert in the alternative, right not to be transferred on the spousal ground, too.
6. Under a World Bank sponsored Scheme, three Engineering Colleges and eight Polytechnics were declared autonomous, through Government Resolution, dated 19th July 2002. The staff of these institutes is governed by the Rules framed by those institutes themselves. Unlike the Government servants, they are disentitled to pension and provident fund. A Government Resolution lets the teaching and non-teaching staff working ::: Uploaded on - 06/05/2019 ::: Downloaded on - 08/04/2020 14:45:02 ::: 5 Wp6115.18group outside to opt for these autonomous institutes; conversely, those working in these institutes could as well choose to work in non-autonomous institutes.
7. Another GR empowers a Board of Governors to administer each autonomous institute with its own service conditions. But the staff who had been in service before these institutes became autonomous would remain unaffected: they would have their service benefits on a par with other government employees, pension and provident fund included.
8. As these institutes continue to be autonomous, an association of employees, an Adhyapak Adhikari Sangh, filed a few writ petitions, including WP No.4046 of 2012. Thus the Sangh's efforts resulted in judicial directives, consequential government action, and further litigation, too.
9. The Sangh complained of malpractices in recruitment to the respondent Institute. In fact, a Division Bench of this Court disposed of WP No.4046 of 2012 with certain directions. Acting on those directions, the Government appointed a Committee to probe the allegations of ::: Uploaded on - 06/05/2019 ::: Downloaded on - 08/04/2020 14:45:02 ::: 6 Wp6115.18group irregularities in recruitment. The Committee's report, the petitioners allege, vindicates the Sangh's stand.
10. In due course, the Government issued GR, dated 30th May 2018, transferring 49 Assistant Professors. From the 3rd respondent Institute, 21 Associate Professors were transferred. And of those 21, the majority, that is 17, are the members of the Sangh, which acted as a whistleblower. The remaining four also were the government servants who opted to stay in the autonomous institute.
11. In esense, some of the petitioners have been transferred on "administrative ground", and the remaining apprehend that they too may soon have the marching orders. Thus, all the petitioners have filed this writ petition contending that the GR, dt.30th May 2018, is mala fide, issued by the Government to have an ulterior motive served.
WP No.6702/2018;
12. The petitioner is an Associate Professor working in the 3 rd respondent college, an autonomous institution. He challenges the Government Resolution dated 30th May 2018, through which he was transferred. As is the contention in WP No.6115/2018, here too the ::: Uploaded on - 06/05/2019 ::: Downloaded on - 08/04/2020 14:45:02 ::: 7 Wp6115.18group petitioner maintains that he works in an autonomous institute and he is no longer under the administrative control of the Government. WP NO.7072/2018
13. In this Writ Petition there are 5 petitioners, all of whom are Assistant Professors working in the 3 rd respondent college. They too have raised identical pleas and sought similar relief. Therefore, this Writ Petition needs no elaboration.
Submissions:
Petitioners':
14. Faced with the question how the Writ petition is maintainable, Shri Anturkar, the learned Senior Counsel for the petitioners, has first addressed that issue. According to him, the Institute is autonomous, the government exercising no administrative control over it. In the same breath, he also adds that the petitioners, as the employees of that Institute, cannot be administratively controlled or regulated by the Government. And that control or regulation includes the facet of transfer as well. To support his contention that the Maharashtra Administrative Tribunal has no jurisdiction, Shri Anturkar has drawn attention to Section 3 and Section ::: Uploaded on - 06/05/2019 ::: Downloaded on - 08/04/2020 14:45:02 ::: 8 Wp6115.18group 15 of the Administrative Tribunals Act, 1985, besides the lexical exegesis on the expression "autonomy".
15. Shri Anturkar contends that the Institute enjoys absolute autonomy, as is evident from the Government Resolution (GR), dated 19 July 2002, and GR, dated 31 March 2004. He has also brought to our notice GR, dated 23 October 2012, to hammer home his contention that by no stretch can the petitioners be treated as government servants; on the contrary, they are the employees of the autonomous Institute.
16. The second limb of Shri Anturkar's arguments focuses on the Government's powers to transfer the petitioners. To elaborate on this issue, he again relies on the GRs of 2002 and 2004 and contends that at the very inception the employees of yet-to-be-autonomous college were given an option either to continue in that college or to opt out and be a part of the mainstream government servants, to work in other colleges. As the petitioners chose to remain in the same college which later became an autonomous institute, the Government's action of transferring these employees is without any jurisdiction.
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17. Shri Anturkar has taken pains to impress on us that though the petitioners' service conditions remain unaltered, according to him, it is only to ensure statutory compliance: not to alter a government employee's service conditions to his prejudice without due procedure. Shri Anturkar has also stressed that the Government does not pay salary to these petitioners; it in fact annually provides a block grant to the Institute, which in turn pays salaries to the petitioners from out of that grant.
18. The learned Senior Counsel has touched on some previous litigation at the behest of the employees' Association. According to him, the impugned transfers are retaliatory, being punitive and vindictive. In that context, Shri Anturkar asserts that 17 of 21 Assistant professors transferred are the active office bearers or the members of the Sangh, which acted as a whistle-blower against the irregularities committed by the third respondent management, in the recruitment.
19. To sum up his submissions, Shri Anturkar, the learned Senior Counsel, has first underlined the government objective in according autonomous status to the third respondent college. Then, he has submitted ::: Uploaded on - 06/05/2019 ::: Downloaded on - 08/04/2020 14:45:02 ::: 10 Wp6115.18group that these gratuitous transfers by the Government, with no administrative control over the Institute, calls for judicial intervention, lest the very objective should stand defeated. With the institutional autonomy nullified, the quality of education in the Institute, concludes the learned Senior Counsel, irredeemably suffers.
The Respondents':
Respondents 1 & 2's:
20. The learned Special Counsel for the State, to begin with, has attacked the Writ petition on technicalities: its maintainability. According to him, the petitioners are, well and truly, the government servants. They have, therefore, an efficacious alternative adjudicatory forum--the Maharashtra Administrative Tribunal.
21. On the merits, the learned Special Counsel contends that the petitioners have no demonstrable legal right to insist on the Court's judicially reviewing the governmental action; that is, the transfer of the petitioners.
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22. Both the teaching and non-teaching staff of the Institute, before it became autonomous, had been recruited by the Government through Maharashtra Public Service Commission. So, to this day, according to the learned Special Counsel, they continue to be government servants, the later institutional autonomy notwithstanding. Indeed, the learned Special Counsel has elaborated on how the World Bank scheme has come to be implemented. According to him, the third Respondent Institute, like any other Institute brought under the World Bank scheme, has only limited autonomy. Referring to the GRs of 2002 and 2004, he insists that the Government has all pervasive administrative control over the employees appointed before the Institute became autonomous. Of course, he cites many instances of the Government's administrative control over these employees, who include the petitioners as well.
23. To achieve better educational efficacy and higher regulatory standards, the Government, according to the learned Special Counsel, has transferred a host of employees. Confining to the petitioners, he submits that they have been continuing in the same place for decades, contrary to ::: Uploaded on - 06/05/2019 ::: Downloaded on - 08/04/2020 14:45:02 ::: 12 Wp6115.18group the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005, which permits a government servant to work at one place maximum for three years.
24. The learned Special Counsel, after taking us through the Government's reply affidavit, submits that many other government colleges have been working with minimum staff; before regular recruitment takes place unless the government distributes its teaching staff, most government colleges will suffer adverse academic standards, lacking teaching staff. In that backdrop, the learned Special Counsel stresses that some of the Assistant Professors from the Institute have been transferred purely on administrative grounds. He vehemently denies any mala fides on the Government's part in transferring the petitioners along with many others.
25. In the end, the learned Special Counsel maintains that even this Court in Exhibit-3 judgment, in W.P. (C) No.4046 of 2012, has vindicated the Government's stand that the Institute has only limited autonomy.
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26. To sum up, the learned Special Counsel stresses that transfer is an incidence of service, and the courts are usually disinclined to interfere with the Government's purely administrative functions exercised to promote institutional interests.
The 3rd Respondent's:
27. The learned Standing Counsel for the Institute has supported the Government stand. According to him, to determine whether an employee is a government servant, we need to look at three aspects or tests:
(1) Who is the appointing authority? (2) Who has the disciplinary control over the employee? (3) Who pays the wages or salary?
28. As a common answer to all the above three questions, the learned standing counsel maintains that here as regards the petitioners, "the Government" emerges as the answer to all the three questions. It is the employer.
29. The learned Standing Counsel also stresses that the petitioners themselves have pleaded before this Court on earlier occasions that they are government servants and the government regulations alone apply to them. He also submits that even post-autonomy, the Government has retained the ::: Uploaded on - 06/05/2019 ::: Downloaded on - 08/04/2020 14:45:02 ::: 14 Wp6115.18group power to transfer the petitioners and other employees whom it had appointed before the Institute became autonomous. About the petitioners' service conditions, the learned Standing Counsel argues that on the questions of lean, deputation, improving educational qualifications, the Government has continued to exercise its powers. Moreover, the petitioners have submitted themselves, at all material points of time post autonomy, to the Government's jurisdiction.
30. Illustratively, the learned Standing Counsel draws our attention to the Institute's reply, in which it has tabulated the petitioners' options of transfer from the Institute to other colleges, as a matter of policy, both in 2017 and 2018. To further illustrate the governmental control, he has also stressed that the Government has been maintaining a common seniority list for all its teaching staff in the government colleges. And the petitioners have never questioned the common seniority list, which incorporates them, too. On the contrary, the petitioners and other employees recruited pre- autonomy, he stresses, have resisted the Government efforts to treat them as the Institute's employees.
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31. In the end, the learned Standing Counsel denied the allegations that the litigation the Sangh brought before this Court has anything to do with the petitioners' transfers.
32. Heard Shri Anturkar, the learned Senior Counsel, for the petitioners; Shri L.M.Acharya, Special Counsel with Mrs.Shruti D. Vyas, the learned Special Counsel for the 1st and 2nd respondents; and Shri Amit Borkar, the learned Standing Counsel, for the third respondent. Discussion:
33. The questions we need to answer are these: (A) Are the petitioners the government servants? (B) If they are, is this Court still inclined to judicially review the Government order of transfer, despite the petitioners' having an efficacious alternative forum: the Maharashtra Administrative Tribunal?
34. Distinct as these questions appear, they are interconnected; the answer to the first question even in the affirmative, will not automatically denude this Court of its decisional authority. But, as a matter of prudent practice and an established adjudicatory norm, the Court usually refuses to ::: Uploaded on - 06/05/2019 ::: Downloaded on - 08/04/2020 14:45:02 ::: 16 Wp6115.18group exercise its power of judicial review if the suitor has an alternative remedy. As the second question is not an essential corollary to the first one but an adjunct, we will first address the core question: Are the petitioners government servants? In other words, does the third respondent Institute's autonomous status affect the Government's administrative control over the petitioners?
35. Much effort has been made on either side on the semantic significance of the expression "autonomous". Both lexical and statutory help has been summoned. We are afraid, here the Institute's autonomy is beside the point. Even the Government does not dispute it, though it qualifies its concession on that point. According to it, the Institute has limited autonomy. So we need not labour much on that.
36. All the petitioners, indisputably, were appointed as Assistant Professors in the Institute before it became autonomous. Thus, after its attaining autonomy, the Institute recruited many other employees--both teaching and non-teaching. About their status, there is neither doubt nor dispute. On that count, the Government is unqualified in its concession: it has no administrative control over employees recruited post-autonomy. But ::: Uploaded on - 06/05/2019 ::: Downloaded on - 08/04/2020 14:45:02 ::: 17 Wp6115.18group about the petitioners, who have been under a cloud of transfer, the Government is resolute in its assertion, supported by the very Institute, that the petitioners are its servants and they are, thus, under its administrative control--amenable to transfer, in the least.
37. To determine the petitioners' status much depends on the GRs of 2002 and 2004. They need a little elaboration here. GR No.WBP-2001/(47/01), VE-5, Dt.19.07.2002:
38. The Government of India has decided to implement "the Technical Education Quality Improvement Programme" for improving the quality of technical education in India. It has secured a "soft loan of Rs. 5000 crore from World Bank" for this purpose. This project primarily aims at "making India a developed and confident Nation by producing World- class engineers through qualitative changes in technical education systems."
39. The Ministry of Human Resources Development ("MHRD") has fixed certain criteria to select Engineering Colleges and Polytechnics for this purpose. MHRD has aimed at bringing the engineering colleges on a par with the IITs, at the end of this programme. One of the important conditions for a college to participate in this programme is that it "should be ::: Uploaded on - 06/05/2019 ::: Downloaded on - 08/04/2020 14:45:02 ::: 18 Wp6115.18group totally autonomous." The Expert Committee appointed by the Government of Maharashtra has selected three Government Engineering Colleges and eight Polytechnics. These institutes are to have total academic, administrative, financial, and managerial autonomy.
40. One of the three Engineering Colleges thus selected is the third respondent Institute. It was granted "total autonomy" subject to these conditions: (a) No transfer of Government property will be allowed; (2) Centralized Admission process will apply; and (3) Currently available benefits to the socially backward classes will continue. Though termed a condition rather than a right, "the Institute will function as total autonomous institute," on its forming the Board of Governors and after its obtaining academic autonomy from the University concerned.
41. The Government of Maharashtra has also allowed the autonomous Institutes to effect administrative and managerial changes as per the guiding principles of MHRD. "The Council of Autonomous Institutes, Maharashtra State'' will be the State level Advisory Body for the autonomous Institutes. The Hon'ble Minister, Higher & Technical ::: Uploaded on - 06/05/2019 ::: Downloaded on - 08/04/2020 14:45:02 ::: 19 Wp6115.18group Education, will be the Ex- Officio Chairman of this Council. The members of the State level Council will be parallel to those of the Central Council.
42. The term 'College' will be replaced by the term 'Institute" in the nomenclature of the colleges concerned. So the third respondent College was renamed "Pune Institute of Engineering & Technology, Pune". Even the nomenclature of the degree awarded by the Engineering Colleges stands changed to 'B. Tech.' and 'M. Tech,' from 'B. E' and 'M. E.'
43. Under the caption "Administrative Matters" the GR mandates that the existing provisions of Pension and Provident fund will apply to the employees who had joined the Institute before it became autonomous. Similarly, their salaries and provident fund amounts will be paid from the Block Grants the Government provides to these Institutes. And the expenditure towards the salaries of the Institute's teaching and non-teaching staff who joined the Institute before it became autonomous will also be paid from the Block Grants. It reiterates that it is the Government's responsibility to provide the benefit of Pension and the Provident Fund to these employees.
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44. The recruitment of teachers and other employees "after commencement of new governance" will be according to the rules of the respective Institutes. As these employees will not be the Government servants, they will not have the benefit of Pension and Provident Fund. And the rules of the respective Institutes will govern the service conditions of the employees recruited post-autonomy.
45. Indeed, vital is the option of transfer. The GR mandates that the government employees working in other colleges can apply to be transferred to any of these autonomous Institutes. Conversely, any of those working in these Institutes may as well seek transfer to other government colleges. They will be absorbed in equivalent posts--in the future.
46. We reckon this arrangement of transfer into and out of the autonomous Institute is a transitional provision, applying when the Institute became autonomous. Once the Institute has become fully functional, with its own Rules and Regulations in place, it is the Institute's Management that should have the last word on the staff inflow and outflow. ::: Uploaded on - 06/05/2019 ::: Downloaded on - 08/04/2020 14:45:02 :::
21 Wp6115.18group But the question, for now, remains whether this administrative control applies across the board to all employees. We shall see. GR No.WBP-2004/(341/04)/(1)/TE-6, Dt.31.03.2004:
47. This GR substantially clarifies and partially modifies GR, dated 19 July 2002. Under paragraph 2.1 "Administrative and Managerial Matters", the Government clarifies that though "complete autonomy" is granted, the Institute must effect managerial and administrative changes as per the guidelines given by the MHRD. It also holds that the functioning of an autonomous institution "shall be done through the Board of Governors."
According to it, the service conditions of all the regular teaching and non- teaching employees who have entered the service of the Institute pre- autonomy "shall be the same as those of the government employees." Once the Society takes over the management, it "shall decide the pattern of the staff and the service conditions of the employees" in the Institute." Accordingly, the society shall appoint the employees, and they shall be considered the employees of the Society.
48. The GR also clarifies that if teaching and non-teaching employees of other Government engineering colleges wish to work in the ::: Uploaded on - 06/05/2019 ::: Downloaded on - 08/04/2020 14:45:02 ::: 22 Wp6115.18group autonomous institutions, they will be accommodated in the autonomous institutions through interviews. Yet, the service conditions of the Institute concerned shall apply to them.
49. Paragraph 7 enlists the area of administration where the Institute has autonomy; one of them is "to decide the service conditions of the new employees."
50. Under paragraph 2.3 "financial matters", sub-para (3) provides that the Government shall give the consolidated salary grant (Block Grant) of all the approved teaching and non-teaching posts in the autonomous institution. This amount shall be enhanced by 8% every year. However, it mandates the Institute to use this amount only for the salaries. The Government shall take a review of the Block Grant after five years and make the necessary changes. The Block Grant will be disbursed by the Director, Technical Education, Government of Maharashtra. GR No. A 65 (?)-2010/(170/10)/TE-2, dated 23 October 2012:
51. This Government Resolution emphasises that "the governance system and the duties and responsibilities of various governing bodies of these institutions" stand prescribed by 2002 and 2004 GRs. But these are , ::: Uploaded on - 06/05/2019 ::: Downloaded on - 08/04/2020 14:45:02 ::: 23 Wp6115.18group it notes, neither under the University Act 1994 nor under the UGC recommendations. So the Government has consulted the Law Commission of Maharashtra, which in turn submitted a report to the Government. Presumably based on that report, besides fine tuning the administrative powers of the Institutes, this GR again enumerates the powers of the Board of Management. One of those powers is "to lay down the duties and responsibilities of the professors, associate professors, assistant professors, and other academic/non-academic staff in consultation with the Academic Council." It also further mentions, under the powers of the Board of Management, that the regular appointments by nomination in Government autonomous institutes shall be carried out by the Government as per the existing procedure. Yet the Board of Management shall carry out temporary appointments to fill up the available vacancies on a contractual basis, as a stopgap arrangement.
Has this Court endorsed the partial autonomy, rather than the full autonomy, of the Institute?
52. The Employees' Association, Abhiyantriki Mahavidyalay Rajpatrit Adhyapak Adhikari Sangh, filed WP No. 4046 of 2012, ::: Uploaded on - 06/05/2019 ::: Downloaded on - 08/04/2020 14:45:02 ::: 24 Wp6115.18group complaining about certain irregularities the Institute's Board of Management or Governors allegedly committed in their recruiting teaching staff. A Division Bench of this Court through judgment, dated 27 November 2013, directed the Government to inquire into the allegations. In that process, the Division Bench has noted that the Institute was granted autonomy, "but subject to certain terms and conditions, which is apparent"
from the Government Resolutions.
53. In paragraph 7 of the judgment, the Court has observed that the Government "plainly and clearly" exercises such control as is requisite and necessary to ensure quality education "even after the autonomy is granted to the College of Engineering, Pune."
54. True, in compliance with the Court's directive, the Government appointed a committee; and that Committee has gone into the allegations. About the follow-up action, both the Sangh, in which the petitioners are said to be the members, and the Institute have filed Writ petitions: WP No. 6683 of 2015 by the Sangh and WP No. 3919 of 2015 by the Institute. But we are not concerned with them.
The Precedential Position:
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55. The petitioners have cited certain decisions on the question of institutional autonomy. To impart completeness to the discussion, we will examine them. In Managing Director, Orissa Industrial Infrastructure Development Corporation vs Sarath Chandra Patnaik 1 the Supreme Court has examined under what circumstances the Corporation, a statutory body, should get guided by the Government. In that context the Court has held that the Government's role is advisory and that it is only on policy matters. If the Corporation is expected to consult the Government even on day-to- day affairs, the Corporation's authority gets eroded, and it may become "a wing of the Government Department". But the statute under which the Corporation was established did not envisage such a situation, held the Court.
56. In Modern Dental College and Research Centre vs State of Madhya Pradesh2, the Supreme Court has acknowledged that the private unaided institutions have right to devise a rational manner of selecting and admitting students. That said, it is also emphasised that certain degree of State control is required since the State must see that high standards of education are maintained in all professional institutions. 1 (1996)4 SCC 590 2 (2009) 7 SCC 751 ::: Uploaded on - 06/05/2019 ::: Downloaded on - 08/04/2020 14:45:02 ::: 26 Wp6115.18group
57. In Himachal Pradesh a Private Medical University has come to be established under a particular Act of 2010. By then, another Act of 2006 was also holding the field, covering the medical education, but unaffecting the Private Medical University. Under the Act of 2010 an entity wanted to establish a medical college and affiliate it to the Private Medical University. Then the Government insisted that it should comply with the requirements under the 2006 Act, too.
58. In the above factual context, the Supreme Court in Indian Institute of Technology, Kanpur vs Raja Ram Verma 3, has elaborately considered the interplay between both the 2006 and 2010 Acts. It has, then, stressed on the efficacy of the 2010 Act, besides emphasising the need for institutional autonomy. Regrettably, that decision does not help the petitioners here.
59. In K.J. Somaiya College of Engineering vs The Secretary Fees Regulating Authority4, the question is whether autonomous colleges/institutions under the Maharashtra Public Universities Act, 2016 are governed by the MEPS Act, 2015. Under the latter Act, the Government insisted on unaided educational establishments to submit their 3 (2017) 6 SCC 675 4 2018 (2) ABR 475 ::: Uploaded on - 06/05/2019 ::: Downloaded on - 08/04/2020 14:45:02 ::: 27 Wp6115.18group fee proposals to the authorities under the Act. In that context, a Division Bench, which comprises one of us (B. R. Gavai J), has held, in an elaborate judgment, that there is no conflict between the provisions of the 2016 Universities Act and those of the 2015 MEPS Act. The autonomous colleges could fix their fees, but the authority under the MEPS Act could satisfy itself whether fee determined by the unaided Private Professional Educational Institutions amounts to profiteering or commercialization.
60. None of the decisions, we are afraid, directly affect the issue before us. So we will continue our discussion based on the particular facts of this case.
The Theory of Autonomy:
61. All over the GRs of 2002 and 2004 institutional autonomy is writ large. The very objective of making certain identified colleges autonomous has the underpinnings of a grand global vision: academic excellence in technical education. With the improved quality of education, the Union of India aims at "making India a developed and confident Nation by producing World-class engineers through qualitative changes in technical education systems." Further evident is the aspiration that these ::: Uploaded on - 06/05/2019 ::: Downloaded on - 08/04/2020 14:45:02 ::: 28 Wp6115.18group engineering colleges must be competing with the best of technical institutions, say IITs, at the home front.
62. This objective of excellence in technical education for transforming the nation a global competitor--that is, to produce world- class engineers--is an educational imperative. How long can we bear the euphemistic, but truly pejorative, tag of a "developing nation"? Can that gerundial adjective "developing" ever be transformed into a participial adjective: developed?
63. Granted the task is daunting, but if institutes identified and nurtured as autonomous can be truly autonomous, the objective is gettable. The real autonomy, then, encompasses every institutional aspect, especially the sphere of teaching. Here the Government maintains a dichotomy. It retains its administrative control over the employees--teaching and non- teaching--who had been appointed before the Institute became autonomous. But, appreciably, it maintains a hands-off approach towards those appointed post-autonomy.
64. The Government has advanced two principal contentions: (a) the Institute has only partial autonomy; (b) the transfers are necessitated ::: Uploaded on - 06/05/2019 ::: Downloaded on - 08/04/2020 14:45:02 ::: 29 Wp6115.18group because the staff strength in many other Government Colleges is "abysmally low". The Government demonstrates this through a tabular presentation of staff position in various colleges.
65. But the GRs of 2002 and 2004 falsify the Government stand; they mandate that the Institutes must have "total autonomy." True, they must. The Government being the paymaster hardly alters the position. About the staff transfer, let us assume for the sake of discussion that the Government has the power to transfer the employees. And we will also assume that the staff strength in other Government Colleges is abysmally low. Then, does the Government have unbridled power to transfer from autonomous Institutes unchecked--without substitutes? No.
66. To pay Paul, we need not always rob Peter. Paul can be paid and Peter, too, can remain protected--unrobbed. If the staff situation in government colleges warrants urgent measures, the Government must go for new recruitment. Pulling staff away from one institute--and from an autonomous Institute with a global objective, at that--for spreading them thin among many other institutions may ruin the regular colleges as well as the autonomous one. The Court will not comment on the pulls on the ::: Uploaded on - 06/05/2019 ::: Downloaded on - 08/04/2020 14:45:02 ::: 30 Wp6115.18group Government purse, though. An Institute with autonomy merely in the name and with depleting staff cannot be a global competitor--not even a rival to an IIT at the home front. It remains an inferior imitator, at best.
67. So the reason of "abysmally low" staff in other colleges is unconvincing. Stone walls do not a prison make. Generous grants and talismanic autonomy do not a fine institution make. It is the quality of the faculty that does. But if we hold that the Government has the power to transfer the petitioners, our Utopian view on education will not rob the Government of its administrative authority. The Court's alternative view hardly affects the Government's policy prerogative; much less does it justify judicial review. Let our ideal vision not conflict with the Government's policy compulsion.
68. So we conclude that the third respondent-Institute is totally autonomous. This autonomy ought to have encompassed the pre-autonomy staff, too. Lest the education quality should suffer. Otherwise, even the initial offer to the existing employees to choose transfer out of the soon-to- be autonomous institute remains meaningless. But the actual happenings ::: Uploaded on - 06/05/2019 ::: Downloaded on - 08/04/2020 14:45:02 ::: 31 Wp6115.18group belie this position and make our conclusion only a pious wish. Let us, then, examine the practical front.
Autonomy in Practice:
69. The ground realities in the Institute are different. The petitioners' passive or conscious acceptance of the Government's administrative power over them exposes their stand in this writ petition.
70. According to the Institute, the Government has been regularly transferring and deputing these employees. It has been granting permissions to many pre-autonomy staff to pursue higher studies and acquire better qualifications under Quality Improvement Programme. It asserts that the Government has sponsored the petitioners 3. 4, 5, 6. 8, 12, 13 under that Programme. It also permitted the petitioners 10 and 11 to complete their Ph.D with full salary and allowance, on deputation to IITs.
All these happened post-autonomy. The Institute has illustratively placed on record a couple of the petitioners' representations to the Government for their taking up higher studies. And those applications include the ones ::: Uploaded on - 06/05/2019 ::: Downloaded on - 08/04/2020 14:45:02 ::: 32 Wp6115.18group submitted by the petitioners 2 and 3 to the Principal Secretary, Higher and Technical Education.
71. The Institute also places on record that the Directorate of Technical Education and Joint Director of Technical Education have from time to time assessed the confidential reports of only the Government appointed faculty, like the petitioners. Even permission to travel abroad, the petitioners have been securing only from the Government. As a matter of fact, the petitioner 2, 3, 4, and 13 sought travel permission from the Government and secured it. Besides that, all the pre-autonomy staff have been submitting their Annual Statements of Assets not to the Institute, but to the Government.
72. The Government periodically prepares, further asserts the Institute, an integrated seniority list involving all the teaching staff of Government colleges. And the petitioners' names, too, are reflected in it. The Institute points out that because of various intervening factors, it wanted to bifurcate its roaster from the State roaster and prepare its own. That is, the Institute wanted to prepare its own seniority list. When it did ::: Uploaded on - 06/05/2019 ::: Downloaded on - 08/04/2020 14:45:02 ::: 33 Wp6115.18group prepare the seniority list keeping Government appointed employees at appropriate places as specified by the Government, the petitioners and similarly placed persons objected to it. The objection mainly relates to clubbing the petitioners--the Government employees--with the Society employees in a single list. Abhiyantriki Mahavidyalay Rajpatrit Adhyapak Adhikari Sangh has also corresponded on this issue with the Joint Director of Technical Education.
73. The autonomy conferred on the Institute, the empowered Board undertook the recruitment process. Many petitioners, that is petitioner 1, 2, 3, 4, 5, 6, 11, 12, 13 applied, got selected to higher positions, joined, served, and then got reverted. They chose reversion because they did not want to lose the status of being government employees and the attendant financial benefits, perhaps.
74. When the Institute applied for securing deemed-to-be-university status, the Sangh, to which the petitioners belong, objected. A writ petition is said to be pending on that issue. In WP No.4046 of 2012, the Sangh acknowledges that the employees recruited after the Institute gained ::: Uploaded on - 06/05/2019 ::: Downloaded on - 08/04/2020 14:45:02 ::: 34 Wp6115.18group autonomy will not get the benefit of pension and provident fund. In that context they pleaded in paragraph 18 that many government employees continued in the Institute after 19 July 2002 when it gained autonomy, but they continued only as Government employees. So the petitions are estopped. And the GRs are not statutes to arrest this estoppel.
75. The icing on the cake comes in para 12 of the Institute's reply affidavit. The Government issued directives to its teaching staff to give options for their policy transfers: one communication was on 15th January 2016 and another on 26th December 2016. All the petitioners have given their options or preferences to various government colleges--not intra- Institute. In fact, a few have represented before the Government about their difficulties in the wake of proposed transfers: children's education, medical problems, and so on.
Denouement:
76. As we have already mentioned, the Government maintained the dichotomy between pre- and post-autonomy employees. Over the pre- autonomy employees, it has maintained its administrative control. And ::: Uploaded on - 06/05/2019 ::: Downloaded on - 08/04/2020 14:45:02 ::: 35 Wp6115.18group those employees, including the petitioners, have submitted to it--at least, until now. It may have been desirable that the Institute enjoyed the autonomy on its staff as a whole, so it could pave the way for better educational standards and more administrative cohesiveness. But that is not to be.
77. We cannot show the accusing finger towards the Government alone. Perhaps, the petitioners wanted to have the best of both worlds:
working in an autonomous institute and still getting labelled as government employees. They can have. That said, they must also realise that they cannot have their cake and eat it too.
78. In sum, even if we keep aside every other technicality, the petitioners' conduct over the years belies their assertions in this Writ Petition. For them to maintain that they are not government servants, it is too late in the day. Estoppel by conduct stares at them.
79. So we hold that the petitioners are government servants and the Government has retained administrative control over them. Then what follows?
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36 Wp6115.18group Can We Entertain this Writ Petition?
80. Once we declare that the petitioners are government servants, the appropriate forum for their grievance redressal is Maharashtra Administrative Tribunal. We can relegate them to that forum. Should we?
81. It is the petitioners that have come before this Court; they have asserted that this Court has jurisdiction to entertain the Writ Petition. At any rate, the doctrine of the alternative forum implies a choice among more than one forum. In determining alternative remedy; efficacy, expediency, and judicial restraint, a self-imposed one though, are the norms to be observed. Put it differently, only if the Court inherently lacks jurisdiction-- that is, the subject matter jurisdiction--a party's consent does not confer jurisdiction. Otherwise, it does at least estops the party.
82. Thus, a suitor who knocked the doors of a Constitutional Court cannot turn back and avoid adjudication by asserting that he has an efficacious alternative remedy. That conduct amounts to self-contradiction. ::: Uploaded on - 06/05/2019 ::: Downloaded on - 08/04/2020 14:45:02 :::
37 Wp6115.18group And that option of avoiding adjudication rests with the Court he has approached.
83. So we have decided to entertain this Writ petition on merits, too. And, after analysing the case, we cannot but hold that, as we have already declared, the petitioners are government servants, the Government has administrative control over them, and it has the power to effect transfers in the interest of better administration. And finally, we see no mala fide exercise of power by the Government. At any rate, the petitioners have failed in discharging their onerous burden that the Government has acted mala fide.
Result:
We, therefore, dismiss these Writ petitions as meritless. Not run costs. In view of dismissal of writ petitions, nothing survive for consideration in civil applications. Both Civil Applications stand disposed of accordingly.
(DAMA SESHADRI NAIDU, J) (B.R.GAVAI, J)
L.S. Panjwani, P.S.
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