Bombay High Court
Dr. Babasaheb Ambedkar Memorial ... vs The Presiding Officer, University And ... on 22 September, 2017
Author: S. C. Gupte
Bench: S. C. Gupte
wp4497.15.J.odt 1/11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 4497 OF 2015
1] Dr. Babasaheb Ambedkar Memorial
Society,
Old Warora Naka, Ram Nagar Road,
Diksha Bhumi, Civil Line, Chandrapur,
Through its President.
2] The Principal,
Dr. Ambedkar Arts, Commerce and
Science College, Chandrapur. .....PETITIONERS
...VERSUS...
1] The Presiding Officer,
University and College Tribunal,
Nagpur.
2] Ku. Ujwala Anandrao Koche,
(Assistant Professor), Head of
Department, Department of
Physical Education,
C/o Dr. Ambedkar College,
Chandrapur.
3] Rashtra Sant Tukdoji Maharaj
Nagpur University, Nagpur.
Through its Vice Chancellor,
Maharajbag Marg, Nagpur. ...... RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Shri S. P. Bhandarkar, Advocate for the Petitioners.
Shri Rohit Joshi, Advocate for the Respondent Nos.2 and 3.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 00:40:37 :::
wp4497.15.J.odt 2/11
CORAM : S. C. GUPTE, J.
nd SEPTEMBER, 2017.
DATE : 22
ORAL JUDGMENT :
This petition challenges an order passed by the University and College Tribunal on 4th March, 2015. By the impugned order, the College Tribunal allowed the appeal filed by respondent No.2 challenging her termination from the post of Assistant Professor and Head of the Department by the petitinoers. The College Tribunal set aside the impugned order of termination and directed the petitioners herein (original respondent Nos.1 and
2) to reinstate her in the Post of Assistant Professor and Head of the Department in physical education with full back wages. 02] On 30th July, 2010, respondent No.2 was appointed to the post of Physical Training Instructor and Assistant Professor in the second petitioner-college. On and from 2 nd August, 2010, she took over an Assistant Professor. The appointment was on probation for a period of 2 years. On 18th June, 2012, the petitioners terminated the services of respondent No.2 by issuing a notice of termination effective from 17 th July, 2012 on the ground that her performance was not found to be satisfactory. Being ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 00:40:37 ::: wp4497.15.J.odt 3/11 aggrieved, respondent No.2 challenged the order of termination by way of an appeal before the College Tribunal, being Appeal No. N-6-2012. On 4th March, 2015, the appeal was allowed by the Tribunal. Being aggrieved, the petitioners have moved the present petition under Articles 226 and 227 of the Constitution of India. 03] The case of respondent No.2, which was accepted by the Tribunal, was that though her appointment order provided for a probation period of 2 years, under regulations issued by the University Grants Commission, the period of probation applicable to the post of teacher in Universities and Colleges was one year, extendable by a maximum period of one more year in case of unsatisfactory performance and unless extended for such one more year by a specific order, the confirmation at the end of one year was automatic. These guidelines were adopted by the Government of Maharashtra vide a Government Resolution dated 15th February, 2011.
04] Learned counsel for the petitioners submits that the applicable provision for appointment and confirmation of a teacher in a college affiliated to Nagpur University is Statute 53, which ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 00:40:37 ::: wp4497.15.J.odt 4/11 provides for probation of 2 years (24 months) from the date of appointment; the Statute provides that at the end of the probation period of 2 years, the teacher shall be either confirmed or his services would be terminated provided that a notice of such confirmation or termination, as the case may be, shall be given at least one month before the due date. Learned counsel submits that in the case of respondent No.2, such notice was issued in accordance with the Statute on 18 th June, 2012. Learned counsel submits that though UGC regulations are dated 30 th June, 2010, they are applied to Universities in Maharashtra by the State Government GR dated 15th February, 2011. It is submitted that the appointment of respondent No.2 being prior to the date of such application, the regulations cannot be applied to her case. Alternatively, it is submitted that the power of the State Government under Sub-Section (3) of Section 8 of the Maharashtra Universities Act, 1994 to prescribe a standard 'code' inter alia for appointment and absorption of teachers and their service conditions, can be exercised only by prescribing a 'code'. It is submitted that only when such 'code' is prescribed, the provisions made in the 'code' shall prevail over the provisions in any Statute framed under the University Act.
::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 00:40:37 ::: wp4497.15.J.odt 5/11 05] Originally, the relevant statute, namely, Statute 53 of Nagpur University, was issued under the Nagpur University Act, 1974. The Nagpur University Act was repealed by the Maharashtra Universities Act, 1994. The statute framed under the Act, however, as provided in Sub-Section (2) of Section 115 of the Maharashtra Universities Act, continued in force insofar as it was not inconsistent with any provision of the Maharashtra Universities Act. Sub-Section (3) of Section 8 of the Maharashtra Universities Act empowers the State Government to prescribe a standard code providing for various matters including selection, appointment and absorption of teachers and conditions of their service for affiliated colleges and recognized institutions for the purpose of securing and maintaining uniform standards. Any provision made in this behalf by the State Government prevails over any statute, ordinance, regulation or rule made under the Maharashtra Universities Act and accordingly, the provisions made in such statutes, ordinances, regulations or rules, as the case may be, which are inconsistent with the provisions of the code prescribed by the State Government, are invalid. Besides this provision, there are regulations prescribed under the University Grants Commission Act, 1956 ("UGC Act"). The UGC Act was enacted by the ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 00:40:37 ::: wp4497.15.J.odt 6/11 parliament under Entry 66 List 1 of Schedule-VII to the Constitution to make provisions for co-ordination and determination of standards in Universities. A University Grants Commission ("UGC") has been established under this Act. One of the functions entrusted to the UGC under the UGC Act is to provide for and recommend measures necessary for improvement of university education and advise universities upon actions to be taken for the purpose of implementing such recommendations. The UGC has been empowered to make regulations consistent with the UGC Act and Rules made thereunder. Defining qualifications that should be required of persons to be appointed to the teaching staff of Universities and Colleges affiliated to them and their service conditions including their confirmation etc. are matters covered by Section 26(1)(e) and (g) of UGC Act, for which the UGC may make regulations. The UGC has, accordingly, framed regulations called the University Grants Commission (minimum qualifications for appointment of teachers and other academic staffs in universities and colleges and other measures for the maintenance of standards in higher education) Regulations, 2010 ("Regulations"). These Regulations apply to every University established or incorporated by or under a Central Act, Provisional Act or State Act and every ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 00:40:37 ::: wp4497.15.J.odt 7/11 institution including a constituent or an affiliated college recognized by the Commission in consultation with the University under Clause (f) of Section (2) of the UGC Act. These Regulations have come into effect on 30th June, 2010. The Regulations provide for a minimum period of probation of one year (Clause 11.1) extendable by a maximum period of one more year in case of unsatisfactory performance. The Regulations provide (Clause 11.2) that confirmation at the end of one year shall be automatic, unless extended for another one year by a specific order passed before the expiry of the first year. It is, thus, clear that on and from 30 th June, 2010, the provisions concerning probation and confirmation contained in the regulations apply to the second petitioner-college. Statute 53, or any appointment order made thereunder by the second petitioner, has to make way for the provisions made in this behalf by the Regulations. Accordingly, the confirmation of respondent No.2, at the end of one year, i.e. on 1 st August, 2011 (respondent No.2 having been appointed on 30th July, 2010), was automatic, since there was no extension for further one year by any specific order in her case. Respondent No.2 having, thus, been automatically confirmed, there is no question of termination with effect from 17th July, 2012 on the ground of unsatisfactory ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 00:40:37 ::: wp4497.15.J.odt 8/11 performance during the period of her probation.
06] Learned counsel for the petitioners submits that these regulations have to be adopted by the State Government. Learned counsel submits that such adoption happened only on 15 th February, 2011. Nothing in law is pointed out to this Court, which requires the State Government to adopt the regulations by any specific order so as to make them effective. The Regulations apply by their own force and under the UGC Act, which is a Central statute framed by the parliament under Entry 66 of List-1. Assuming, however, that the regulations need adoption and implementation by the State Government, such requirement is in fact satisfied in the present case. The Government Resolution of 15th February, 2011 provides for implementation of the regulations, particularly Clause 11 thereof alongwith all its sub clauses as it is. 07] Learned counsel for the petitioners, however, submits that the resolution having been passed on 15th February, 2011, the provisions thereof do not apply to the case of respondent No.2, who was appointed on 30th July, 2010, i.e. before the date of the Government Resolution. The Government Resolution provides that ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 00:40:37 ::: wp4497.15.J.odt 9/11 it shall be implemented with effect from 30 th June, 2010, that is to say, from the date on which the regulations were brought into force under the UGC Act. Even otherwise, the statutory presumption against retrospective application of a legislation does not apply to an enactment merely because a part of the requisites for its action is drawn from a time antecedent to its passing. This famous maxim from Maxwell on Interpretation of Statutes has been affirmed by the Hon'ble Supreme Court in a number of cases including the cases of State of Bombay ..vs.. Vishnu Ramchandra, reported in AIR 1960 SC 7 1960-1-SCR 461 1960 Cr. L. J. 131, Sajjan Singh..vs.. State of Punjab, reported in AIR 1964 Supreme Court 464 and Dilip..vs..Mohd.Azizul Haq, reported in (2000) 3 Supreme Court Cases 607. Merely because respondent No.2 was appointed prior to the date of the enactment, it cannot be said that the enactment does not apply to her. For the purposes of computing her probation period, her date of appointment may be antecedent to the passing of the legislation and as such, may have to be drawn from a time antecedent to the statute for an action thereunder. It cannot be said that the statute does not apply to her case for that reason.
::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 00:40:37 ::: wp4497.15.J.odt 10/11 08] Even otherwise, under Sub Section (3) of Section 8 of the Maharashtra Universities Act by which the University and the second petitioner-college affiliated to it are governed in the present case, the State Government has the power to prescribe by notification a standard code providing for appointment related matters concerning teachers of Universities and affiliated Colleges including the conditions of their service for the purpose of securing and maintaining uniform standards. When such code is prescribed, the provisions made in the code prevail over any inconsistent provision in any statute, ordinance, regulation or rule made under the Maharashtra Universities Act. In the present case, the notification by the State Government adopting the particular regulations, namely, Regulations framed under the UGC Act, satisfies the requirements of Sub-Section (3) of Section 8 and can be termed as the standard code providing for matters mentioned therein. This code, by virtue of Sub Section (3) of Section 8, shall prevail over the provision made in Statute 53 to the contrary. There is no force in the submission of learned counsel for the petitioners that provisions of the notification of 15 th February, 2011, are not described as code. There is nothing magical about the word 'code.' It means any system or collection of provisions ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 00:40:37 ::: wp4497.15.J.odt 11/11 dealing with the matters described in Sub-Section (3) of Section 8. The provisions of the notification of 15th February, 2011, thus, supersede any inconsistent provision contained in statute 53 with effect from 30th June, 2010, and that includes the provision of probationary period of two years.
09] In any view of the matter, there is no infirmity in the impugned order passed by the College Tribunal, which grants relief to respondent No.2 on the basis of the regulations. Whether by their own force or by reason of their implementation by the State Government with effect from 30 th June, 2010, the regulations supersede Statute 53 as well as the appointment order made thereunder. The writ petition is, accordingly, dismissed. No order as to costs.
JUDGE PBP ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 00:40:37 :::