Bombay High Court
Gram Vikas Education Society, Nagpur ... vs University Grant Commission, New Delhi ... on 23 September, 2019
Author: Milind N. Jadhav
Bench: Sunil B. Shukre, Milind N. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 5526 OF 2018
PETITIONER :- Gram Vikas Education Society,
Through its Secretary, Kuhi, Tah. Kuhi,
Dist. Nagpur
...V E R S U S...
RESPONDENTS :- 1. University Grants Commission,
Through its Secretary,
Bahadur Shah Zafar Marg,
New Delhi.
2. State of Maharashtra through its
Secretary, Department of Higher Education,
Mantralaya, Mumbai.
3. Joint Director of Education,
Higher Education, Nagpur Division,
Nagpur.
4. Rashtasant Tukodoji Maharaj Nagpur
University, Through its Registrar,
Dist. Nagpur.
5. Dr. Jaywant Moreshwar Jagtap,
Principal, Rani Indirabai Bhonsale
Mahavidyalaya, Kuhi, Tah. Kuhi,
Nagpur.
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Shri M. G. Bhangde, Senior Counsel a/w. Shri V. V. Bhangde, and Ms.
S. N. Tapdiya, Advocate for petitioner.
Shri A. S. Agrawal, Advocate for respondent no. 1.
Shri S. J. Kadu, A.G.P. for respondent nos. 2 and 3.
Shri P. B. Patil, Advocate for respondent no. 4.
Shri J. T. Gilda, Senior Counsel a/w. Shri A. J. Gilda and Shri S. K.
Hatwar, Advocate for respondent no. 5.
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CORAM :- SUNIL B. SHUKRE AND
MILIND N. JADHAV, JJ.
RESERVED ON : 13.09.2019.
PRONOUNCED ON : 23.09.2019.
JUDGMENT (PER : MILIND N. JADHAV, J.):
1. Rule. Rule is made returnable forthwith. Heard finally by consent of the parties.
2. By the present Petition, the Petitioner-Society has challenged communication dated 20.06.2018 issued by the Vice- Chancellor of Respondent no. 4-University, as being contrary and in violation of Government Resolution dated 15.03.2011 issued by Respondent no. 2 i.e. Department of Higher Education, Mantralaya, Mumbai, inter alia, modifying the tenure of original appointment order dated 28.08.2013 in respect of Respondent no. 5. The Petitioner has also challenged the consequential order dated 10.08.2018 issued by Respondent no. 3 i.e. Joint Director, Higher Education, Nagpur Division, Nagpur pursuant to above communication dated 20.06.2018.
3. The relevant facts that will have to be appreciated for the ::: Uploaded on - 24/09/2019 ::: Downloaded on - 25/09/2019 00:43:26 ::: 3 wp5526.18.odt purpose of deciding the present Petition are as follows :-
The Petitioner is a registered Society which runs a grant-
in-aid college called Rani Indirabai Bhonsale Mahavidyayala situated at Kuhi, Tah. Kuhi, Dist. Nagpur. Respondent no. 5 was originally appointed as Principal in Jupiter Sharirik Shikshan Mahavidyalaya on 15.07.2009. On 29.05.2010, Respondent no. 4-University granted approval to the appointment of Respondent no. 5 as Principal in Vidarbha Arts and Commerce College, Lakhani, Bhandara until his date of superannuation. The Government of Maharashtra on 15.03.2011 issued Government Resolution, inter alia, clarifying that Teachers working in grant-in-aid as well as non grant-in-aid Colleges and who were serving on lien will be covered under the Maharashtra Civil Services Rules, 1981 along with non-agricultural Universities.
The said Government Resolution also clarified that Principals working in non-governmental Colleges or those who had retired from the post of Principal will also be eligible for appointment or for re- appointment until the age of 65 years at various non-governmental Colleges whenever the said posts were vacant. Thereafter, the Selection Committee of Respondent no. 4-University granted approval to the appointment of Respondent no. 5 as Principal of the Petitioner's College at Kuhi, Nagpur for a period of five years from ::: Uploaded on - 24/09/2019 ::: Downloaded on - 25/09/2019 00:43:26 ::: 4 wp5526.18.odt the date of his appointment or till attainment of the age of 62 years, whichever was earlier. The aforesaid approval came to be communicated by Respondent no. 4 to Respondent no. 5 on 28.08.2013. Thus, beginning from 30.08.2013 to 30.08.2018 Respondent no.5 was working on a lien period of 5 years and was to be relieved on 31.08.2018. Accordingly, an entry was also made in the Service Book of Respondent no. 5.
4. Shri Bhangde, learned Senior Counsel appearing for the Petitioner-Society submitted that Respondent no. 5 never objected to the said entry in his Service Book.
5. The Petitioner-Society issued communication dated 06.03.2018 to the Joint Director, Higher Education, Nagpur Division, Nagpur seeking No Objection Certificate to initiate selection process for the post of Principal in view of the lien period of Respondent no. 5 coming to end on 30.08.2013. The Petitioner brought this fact to the notice of Respondent no. 5 by addressing a specific letter dated 06.03.2018. On 03.05.2018, the Vice-Chancellor of Respondent no. 4- University granted No Objection Certificate to the Petitioner-Society to initiate selection process for appointment of Principal. However on 20.06.2018 the Vice-Chancellor of Respondent no. 4-University passed the impugned order, inter alia, modifying the original ::: Uploaded on - 24/09/2019 ::: Downloaded on - 25/09/2019 00:43:26 ::: 5 wp5526.18.odt appointment order dated 28.08.2013 in respect of appointment of Respondent no. 5 as Principal in the College run by the Petitioner- Society and thereby cancelled the No Objection Certificate granted to the Petitioner-Society on 03.05.2018. He submitted that on making an application under Right to Information Act, 2005 and information received by the Petitioner, it came to light that Respondent no. 5 had made a representation dated 06.01.2018 to the Vice-Chancellor of the Respondent no. 4-University, inter alia, requesting the University to modify his appointment order dated 28.08.2013, in view of Government Resolution dated 15.03.2011. This request was made by Respondent no. 5 directly to Respondent no. 4 without bringing it to the knowledge of the Petitioner-Society because Respondent nos. 5's term of five years was nearing an end on 31.08.2018. The Petitioner- Society by its letter dated 01.08.2018 objected to the arbitrary action on the part of Respondent no. 5 of approaching the Respondent no. 4-University and directed him to join service in the earlier College at Lakhni from 01.09.2018 onwards after the tenure and lien period of Respondent no. 5 would end on 31.08.2018.
6. Shri Bhangde, learned Senior Counsel for the Petitioner- Society submitted that Respondent no. 1-U.G.C. had issued relevant notifications and regulations from time to time, inter alia, ::: Uploaded on - 24/09/2019 ::: Downloaded on - 25/09/2019 00:43:26 ::: 6 wp5526.18.odt emphasizing on transparent selection process for maintenance of standards in Higher Education. He relied upon notification dated 13.06.2013 which clearly specified that the term of appointment of the Principal of College would be for five years with eligibility for reappointment for one more term only after a similar selection process which shall take into account an external peer review, its recommendation and its outcome and the framework of external peer review committee will be specified by the University Grants Commission (in short 'U.G.C.'). He therefore posed a challenge to the impugned communication dated 20.06.2018 as been contrary to U.G.C. regulations and notifications. He finally submitted that by the impugned order, the appointment order of Respondent no. 5 was modified and the same was in the nature of reappointment and was contrary to terms of the Government Resolution dated 15.3.2011 followed in the case. He submitted that Respondent no. 4-University has no right to extend the tenure of Respondent no. 5 and Respondent no. 5 had to mandatorily undergo the selection process in accordance with law.
7. PER CONTRA, Shri J.T.Gilda, learned Senior Counsel appearing for Respondent no. 5 submitted that the case of Respondent no. 5 is to be looked into from the perspective of ::: Uploaded on - 24/09/2019 ::: Downloaded on - 25/09/2019 00:43:26 ::: 7 wp5526.18.odt regulations passed by Respondent no.1-U.G.C. According to him, the regulations would apply only if the appointment was made after cut- off date as stated in the regulations. He submitted that Government Resolution dated 15.03.2011 and various amended notifications of U.G.C. were not applicable to the case of appointment of Respondent no. 5 as he was for the first time appointed as Principal on 15.06.2010 which was prior to U.G.C. notification dated 30.06.2010 and Government Notifications dated 15.02.2011 and 15.03.2011. He submitted that Respondent no. 5 was initially appointed as Principal of Vidarbha Arts and Commerce College, Lakhani, Bhandara w.e.f 15.06.2010 as per Rules approved by Respondent no. 4-University on regular basis without any rider and according to him, this was not a tenure appointment. He submitted that thereafter, Respondent no. 5 was appointed as Principal of Rani Indirabai Bhonsale Mahavidyalaya, Kuhi on 28.08.2013 by following due process of law, in the said appointment order, no period was mentioned. However, according to him, when the said appointment was approved by Respondent no. 4-University on 28.08.2013, it was mentioned while granting approval that it was approved as tenure appointment for a period of five years. According to him, the appointment of Principal was not a tenure appointment until 15.03.2011 (date of Government Resolution) and any person appointed as Principal was entitled to ::: Uploaded on - 24/09/2019 ::: Downloaded on - 25/09/2019 00:43:26 ::: 8 wp5526.18.odt work as Principal till the date of his retirement and he submitted that if any person who was already appointed and working as Principal in one College would be necessarily eligible for the post of Principal in another College subject to fulfillment of eligibility criteria. He placed his reliance on Government Circular dated 28.05.2001 in the matter of appointment of Principal and stated that the same was in accordance with the provisions of Section 6 of General Clauses Act. According to him, any person already appointed as Principal prior to the Government Resolution, U.G.C. rules and notification dated 04.04.2000 was to be governed by rules and norms which were in practice at the time of his appointment. Therefore, Respondent no. 5 could not be governed by service notification and eligibility norms prescribed under the Government Resolution and U.G.C. notification relied upon by the Petitioner. He submitted that since Respondent no. 5 was appointed as Principal on 15.06.2010 i.e. much prior to the issue of Government Regulations dated 15.02.2011 and 15.03.2011 and U.G.C. notification dated 30.06.2010, and since he was granted regular approval by Respondent no. 4-University dated 29.05.2010, Respondent no. 5 was entitled to be appointed as Principal in any other College on the basis of qualification criteria applicable as per U.G.C. notification dated 30.06.2010. According to him, Respondent no. 4-University ignored the initial date of appointment dated ::: Uploaded on - 24/09/2019 ::: Downloaded on - 25/09/2019 00:43:26 ::: 9 wp5526.18.odt 15.6.2010 of Respondent no. 5 and it had granted him tenure approval. He further prayed that the Government Resolution referred to and relied upon by the Petitioner in support of the Petitioner's case did not apply to the appointment of Respondent no. 5 and thus the impugned order was correctly passed by the Respondent no. 4- University.
8. Shri Patil, the learned counsel appearing on behalf of the Respondent no. 4-University adopted the submissions made on behalf of Respondent no. 5 and canvassed the same line of submission in support of the impugned order.
9. We have considered the rival submissions advanced by the parties. The submission that Respondent no. 5 was appointed on lien for a period of five years beginning from 30.08.2013 to 01.09.2018 in terms of the Government Resolution has much force because after his appointment, Respondent no. 5 did not raise any grievance whatsoever and thus it was an admission and acceptance on the part of Respondent no. 5 that his appointment was on tenure of five years period in terms of his appointment letter. The service book of Respondent no. 5 is maintained by the Petitioner-Society and is placed on record in its entirety beginning from 06.04.1999 onwards until 2016-17. The signature and endorsement in the said service ::: Uploaded on - 24/09/2019 ::: Downloaded on - 25/09/2019 00:43:26 ::: 10 wp5526.18.odt book has been regularly made and updated by the Respondent no. 5 for all the requisite years without raising any objections. The submission on behalf of the Petitioner-Society that Respondent no. 5 had never objected to the said entry in the service book therefore, deserves to be accepted in the facts and circumstances of the present case. Further, we find that as tenure of five years period was coming to an end, Respondent no. 5 himself made a representation to Vice- Chancellor of the Respondent no. 4-University by keeping the Petitioner-Society in the dark, seeking modification of his original appointment letter dated 28.08.2013, in view of the applicability of Government Resolution dated 15.03.2011. Accordingly, the impugned order dated 20.06.2018 came to be passed by the Respondent no.4-University completely over-reaching the contents of Government Resolutions dated 15.03.2011 and directing perpetual onward permission for appointment of Respondent no. 5 by modifying the appointment order dated 28.08.2013, by completely giving go-by to the tenure of five years which was accepted, to the detriment of the Petitioner-Society. We find that such onward sanction as stated in the impugned order given in favour of Respondent no. 5, without Respondent no. 5 being subjected to selection process for a further term of five years is contrary to the appointment order of Respondent no. 5 which specifically stipulated ::: Uploaded on - 24/09/2019 ::: Downloaded on - 25/09/2019 00:43:26 ::: 11 wp5526.18.odt the tenure and which was accepted by the Respondent no.5. We also accept the submission on behalf of Petitioner-Society that in terms of Government Resolutions dated 13.06.2013 and 11.06.2016, notice dated 29.12.2016 and draft regulation issued by U.G.C., such action on the part of Respondent no. 4-University was in violation of the extant rules and regulations and conditions stipulated therein and which enabled and entitled the Respondent no. 5 to overcome the selection process prescribed in accordance with law.
10. Shri Gilda, further submitted that the U.G.C. regulations were under challenge in a companion Writ Petition before this Court and therefore we should refrain from deciding the present case until and unless the fate of the U.G.C. regulations as read into the Government Resolution is decided by this Court. Looking into the facts of the present case, we do not find it necessary to wait for the decision of the Writ Petition which challenges the U.G.C. regulations considering that action of the Respondent no. 4-University has been in contravention of the Government Resolution dated 15.3.2013, resulting in giving a favorable and perpetual benefit to Respondent no. 5 without following the due process of law as prescribed. He placed reliance on the decision in the case of State of West Bengal and others Vs. Mandira Chatterjee and others, reported in (2012) ::: Uploaded on - 24/09/2019 ::: Downloaded on - 25/09/2019 00:43:26 ::: 12 wp5526.18.odt 13 SCC 582. The said decision relates to grant of approval to the appointments of Respondents therein as Teacher under the West Bengal Primary Education Act, 1973 and the rules framed therein. He relied upon paragraph no.10 of the judgment which reads thus:-
"10. It is well settled that the rights of a litigant on the date of seeking relief before the court, would be governed by the laws, which were existing at the time when the litigant acquired such right. It is true that the rights must have crystallised on the date of making of the application, which is what has happened in the instant case. In our view, the Division bench has correctly assessed the matter in directing the Director of School Education, West Bengal, to grant approval to the appointment of Respondent 1, 5 and 6. The question with which we are faced is, how much a direction can be implemented when at this point of time, it is the West Bengal District Primary School Council, which is the authority for preparation of the panels and making appointments in the respective schools where vacancies arise."
Paragraph no. 10 (supra) relates to crystallization of rights on the date of making of application by the Teachers therein which was upheld by the Hon'ble Apex Court. However, in the instant case no right has been crystallized in favour of Respondent no. 5 by virtue of his original appointment in the year 1999 as pleaded by him. In ::: Uploaded on - 24/09/2019 ::: Downloaded on - 25/09/2019 00:43:26 ::: 13 wp5526.18.odt fact, the appointment of Respondent no. 5 as Principal on lien from 13.08.2013 to 01.09.2018 is specific and therefore on completion of the said lien period, Respondent no. 5 is required to be relieved from 01.09.2018 onwards. From the facts of the present case, it clearly appears that Respondent no. 5 clearly anticipated the above situation in view of his tenure of appointment coming to an end, and therefore, approached Respondent no.4-University for seeking modification of his appointment order without the knowledge of the Petitioner-Society.
11. We also find much substance in the submissions made on behalf of Petitioner-Society that the Vice-Chancellor of Respondent no. 4-University had granted its No Objection Certificate to the Petitioner-Society to initiate selection process of appointment of Principal of Rani Indirabai Bhonsale Mahavidyalaya, Kuhi, Tah. Kuhi, Nagpur as it was aware about the tenure of Respondent no.5. In view of the above, we hold that the Vice-Chancellor of Respondent no. 4-University has committed a gross error in cancelling its own communication dated 03.05.2018 granting No Objection Certificate to the proposal for initiating the appointment of Principal by giving complete go-by to the University Grant Commission regulations and specifically in view of the tenure appointment of Respondent no.5 ::: Uploaded on - 24/09/2019 ::: Downloaded on - 25/09/2019 00:43:26 ::: 14 wp5526.18.odt and thus the impugned communication dated 20.06.2018 issued by Respondent no. 4-University followed by further communication dated 10.08.2018 by Respondent no. 3 are illegal, bad in law and liable to be quashed and set aside as the same are contrary to Government Resolution dated 15.03.2011, notification dated 13.06.2013 and 11.06.2016 and notice dated 29.12.2016 issued by U.G.C.
12. In view of the above, the Petition succeeds. The Rule is made absolute in terms of prayer clause (a) of the Petition. There shall be no order as to costs.
13. Civil Application, if any, stands disposed in terms of the above order.
14. At this stage, learned counsel for the Respondent no. 5 prays for staying the effect and operation of this judgment and order, to which the learned counsel for the Petitioner does not have any objection.
15. Considering the facts and circumstances of the case and also the fact that Respondent no. 5 is continuing in service, the effect ::: Uploaded on - 24/09/2019 ::: Downloaded on - 25/09/2019 00:43:26 ::: 15 wp5526.18.odt and operation of the judgment and order is hereby stayed for a period of two weeks from the date of this order.
JUDGE JUDGE
RR Jaiswal
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