Bombay High Court
Dr. Gajanan Ghanashyam Muley vs The Director Of Education, Directorate ... on 19 July, 2024
Author: M.S. Jawalkar
Bench: Vinay Joshi, M.S. Jawalkar
2024:BHC-NAG:7659-DB
wp 2154-2023.odt 1/40
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 2154 OF 2023
Dr. Gajanan Ghanashyam Muley,
Age @ 43 yrs, Occ - Professor,
R/o. 26, Godavari Colony, Tapowan,
Amravati, Tq. & Dist. Amravati
....PETITIONER
...VERSUS...
1. The Director of Education,
Directorate of Education (Higher Education),
State of Maharashtra, Pune
2. Sant Gadgebaba Amravati University
Through its Registrar, Tapowan, Amravati,
Dist. Amravati
3. Shri. Sandeep Anandrao Waghuley,
Age @ 49 yrs, Occ - Service,
Presently Working at Physics Department,
S.G.B.A. University, Amravati, Tq. & Dist.
Amravati
.....RESPONDENTS
WITH
WRIT PETITION NO. 4037 OF 2023
Dr. Sandeep Anandrao Waghuley,
Age @ 49 yrs, Occ - Service,
R/o 19, Kalpana Nagar, VMV Road,
Amravati, Tq. & Dist. Amravati
....PETITIONER
wp 2154-2023.odt 2/40
...VERSUS...
1. Shri Gajanan Ghanashyam Muley,
Age @ 44 yrs, Occ - Service,
R/o. 26, Godavari Colony, Tapowan,
Amravati, Tq. & District: Amravati
2. Sant Gadge Baba Amravati
University Through its Registrar,
Amravati, Dist. Amravati
....RESPONDENTS
----------------------------------------------------------------------------------
Shri S.M. Vaishnav, Advocate for petitioner in WP No. 2154/2023 &
respondent No.1 in WP No. 4037/2023
Shri V.A. Thakre, AGP for respondent No.1 in WP. 2154/2023
Smt. Gauri Venkatraman, Advocate for respondent No.2 in WP. 2154/2023
Shri A.C. Dharmadhikari, Advocate with Ms Ritu Jog, Advocate for
respondent No.3 in WP. 2154/2023 and for petitioner in WP No. 4037/2023
----------------------------------------------------------------------------------
CORAM : VINAY JOSHI AND
SMT. M.S. JAWALKAR, JJ..
DATE OF RESERVING THE JUDGMENT: 02/07/2024
DATE OF PRONOUNCING THE JUDGMENT : 19/07/2024
JUDGMENT (PER : SMT. M.S. JAWALKAR, J.)
Heard.
2. Rule. Rule made returnable forthwith. By consent of learned Counsel for the parties, the matter is taken up for final hearing at the stage of admission.
wp 2154-2023.odt 3/40
3. Writ Petition No. 2154/2023 is filed by the petitioner for quashing and setting aside communication dated 28/03/2023, thereby nominating respondent No.3 as Head of Physics Department in the place of petitioner and for direction for continuing the petitioner on the post of Head of the Department of Physics. The petitioner by way of amendment dated 15/04/2024 made additional submissions and also sought relief to quash and set aside the communication dated 30/05/2019 by Director of Higher Education, State of Maharashtra, Pune. He further prayed for quashing and setting aside order dated 11/03/2020 (Annexure G) and 08/11/2021 (Annexure J) passed by respondent No.2 - University, to the extent they grant benefits of promotion under CAS to respondent No.3, being passed by acting beyond jurisdiction and in violation of mandatory conditions of Government Resolution dated 08/03/2019. In Writ Petition No.2154/2023, this Court passed the following order dated 03/04/2023:
"Issue notice, returnable in three weeks.
Learned Assistant Government Pleader waives notice for respondent No.1.
Prima facie, considering the fact that service of the respondent No.3 during the period from 2002-2008 was on ad- hoc basis and the petitioner was made Head of Department on 29/06/2019, the position as prevailing today shall be maintained till the returnable date."
4. In view of this interim order passed by this Court, the University wp 2154-2023.odt 4/40 issued order dated 17/04/2023, by which nomination of respondent No.3 - Dr. S.A. Waghuley as Head of the Department stood cancelled. Said Waghuley challenged the said order of the University in Writ Petition No. 4037/2023 and also challenged consequential order dated 28/04/2023. As such, two petitions are filed.
5. Thus, petitioner in Writ Petition No. 2154/2023 challenged order nominating respondent No.3 as Head of Department and by way of amendment he also challenged the communication dated 30/05/2019, by which, 141 days break in service in respect of respondent No.3 was condoned. The petitioner also challenged the order dated 11/03/2020 and 08/10/2021, by which, benefits of Assured Career Progression Scheme were made available to respondent No.3 and thereby awarded with two promotions under ACPS i.e. Lecturer Senior Scale and Assistant Professor Stage - 3. By order dated 08/10/2021, the respondent No.3 granted promotion of Associate Professor and Professor. Needless to mention here that if petitioner in Writ Petition No. 2154/2023 would succeed, the Writ Petition No. 4037/2023 would fail. Similarly, if Writ Petition No. 2154/2023 is failed the Writ Petition No. 4037/2023 would succeed, therefore, we have taken up Writ Petition No. 2154/2023 as a lead case.
wp 2154-2023.odt 5/40
6. The petitioner submitted comparative details of service carrier of petitioner and respondent No.3 as follows :
Sr.No. Particulars of Petitioner Particulars of Respondent No.3
1. The petitioner came to be The respondent No.3 initially appointed on 12/03/2003 in came to be appointed as Lecturer Physics Department of Amravati on Contractual Basis for period of University as Lecturer 10 months in Vidarbha Institute of Science and Humanities on 22/08/2002
2. The respondent No.3 came to be appointed as Lecturer in Amravati University on 06/10/2008.
3. The petitioner came to be The respondent No.3 by the very promoted under ACPS as same order was granted two Associate Professor on benefits of ACPS as Lecturer 12/03/2017. Senior Scale w.e.f. 31/05/2008 and Assistant Professor Stage 3 w.e.f. 31/05/2013.
4. The petitioner was further The respondent No.3 came to be promoted as Professor w.e.f. promoted as Associate Professor 22/03/2020 w.e.f. 31/05/2016 and Professor w.e.f. 31/05/2019 by same order dated 08/10/2021.
5. The petitioner was nominated as The respondent No.3 was Head of Department w.e.f. nominated as H.O.D. by 26/06/2019. impugned order dated 28/03/2023.
7. It is contended by the petitioner that the order/communication dated 30/05/2019 deserves to be set aside. Unless certain conditions of Government Resolution dated 11/02/1994 and 06/03/1999 are satisfied, break in service cannot be condoned. It is further contended that in view of Government Resolution dated 11/02/1994, following conditions are to be wp 2154-2023.odt 6/40 satisfied :
i) Previous service without any break.
ii) Post was in equivalent grade/scale of pay.
iii) Post was filled in accordance with the prescribed
selection procedure by University/State Government
iv) The appointment was not ad-hoc or in a leave vacancy
of less than one year duration.
8. It is submitted that these conditions are not satisfied in the present case. There were several breaks in the service of the respondent No.3. It is further contended that appointment order of respondent No.3 dated 22/08/2002, clearly shows that he is appointed on consolidated pay of Rs.8,000/-, which cannot be termed as regular grade/scale of pay. Thus, for claiming benefit of condonation of break, employee must satisfy that he was working in equivalent grade/scale of pay. The respondent No.3 was appointed i.e. Government Vidarbha Institute of Science and Humanities. The competent authority to make the appointment is MPSC only and as such, the selection for the ad-hoc period cannot be said to be by prescribed procedure as laid down by State Government. It is further submitted that Sub Clause (e) requires that services should not be ad-hoc or in a leave vacancy of less than one year. The petitioner submits that the term "or in a leave vacancy of less than one year duration", only relates to leave vacancy and the words "one year duration" cannot be connected with ad-hoc as used wp 2154-2023.odt 7/40 before the word "or". It is contended that the requirement of the clause is that no services of whatsoever duration which are of ad-hoc nature can be considered.
9. It is further submitted that condition of Government Resolution dated 06/03/1999, which is issued as per notification of University Grants Commission, 1998 for placement of teachers in higher grade or selection grade. It is contended that the entire Clause 8.0.0 to 8.5.0 of notification issued by UGC dated 24/12/1998 needs to be considered that if the services referred in ad-hoc category do not satisfied the requirement of Clause 8.0.0 to 8.5.0, benefit of break in service under Clause 8.6.0 cannot be granted. It is contended that the Government Resolution dated 06/03/1999, which based and refers to the guidelines of UGC by notification dated 24/12/1998. UGC already issued notification in 1998. Whereby some guidelines were issued for placement in higher grade/selection grade to the effect that which type of services can be held to be entitled for such placement. It is contended that Clause No.5 of the said Government Resolution clearly contemplates that the benefit of condonation of break in service can be made available when the employee rendering ad-hoc services is appointed as regular candidate on the recommendation of MPSC. It is further contention of the petitioner that wp 2154-2023.odt 8/40 respondent No.3 was never appointed as duly recommended candidate of MPSC but his appointment in Amravati University was fresh recruitment having no nexus with MPSC. It is submitted that as conditions of both the Government Resolution are not satisfied, the impugned order dated 30/05/2019 is without jurisdiction and is void ab initio.
10. It is further submitted that so far as orders dated 11/03/2020 and 08/10/2021 granting benefits under ACPS claimed by petitioner needs to be set aside. In view of UGC guideline, benefit of next promotional post can be granted on completion of six years of regular appointment/service. It is submitted that the benefit of promotion of Lecturer Senior Scale is granted to respondent No.3 in violation of law. As per Government Resolution dated 08/03/2019, the Committee which grants ACPS benefit must include Head of Department. Although he was Head of Department w.e.f. 01/07/2019, he was not made member of said Committee, which is nothing but a gross illegality. It is submitted that on the basis of ACPS benefits secured on the basis of condonation of break in service, the respondent No.3 cannot claim seniority over the petitioner when in fact the petitioner entered the services of the University on 12/03/2003 and respondent No.3 entered on 06/10/2008. The respondent No.3 cannot be allowed to claim seniority over wp 2154-2023.odt 9/40 the petitioner on the basis of earlier service from 2002 to 2008, which was ad- hoc in nature. The petitioner submits that the contention of the respondent regarding delay and laches is having no substance and deserves to be rejected. It is submitted that petitioner being aggrieved by the benefits granted to respondent No.3 under ACPS and by the condonation of 141 days break in service.
11. Shri S.M. Vaishnav, learned Counsel for petitioner in WP. 2154/2023, relied on following citations :
1. R.P. Chillar and others Vs. State of Haryana and others, CW.P. No. 3214 of 2002, I.L.R. Punjab and Haryana 2003 (2) 88
2. State of Haryana Vs. Haryana Veterinary AHTS Association and another, (2000) 8 SCC 4
3. Registrar Karnataka University and another Vs. Dr. Prabhugouda and another, (2021) 15 SCC 706
4. State of Odisha and others vs Sulekh Chandra Pradhan and others, (2022) 7 SCC 482
5. Dwijen Chandra Sarkar and another Vs. Union of India and others, (1999) 2 SCC 119
6. Gambhirdan K. Gadhvi Vs. State of Gujrat and others (2022) 5 SCC 179 wp 2154-2023.odt 10/40
7. Dr. Pranab Kumar Karmakar Vs. State of West Bengal and others, 2013 SCC Online Cal 4000.
12. Respondent No.3 who is petitioner in Writ Petition No. 4037/2023, has also given a brief comparative chart in respect of Sandeep Waghuley and Gajanan Muley.
Sandeep Waghule (Respondent No.3) Gajanan Muley (petitioner) Initial appointment on 26/08/2002 which was on The petitioner was appointed as a adhoc basis namely after issuing advertisement Lecturer in Physics in the month of going through the interview by a duly constituted March 2003 after he was selected for committee of the State Government. (As required the post and in pursuance to the under Government Resolution dated 06/03/1999) advertisement of 2002 in which there The said services were continued from 26/08/2002 was no post for an open category. to 08/10/2008 by giving technical breaks. It was made on the post reserved for a regular candidate selected by the MPSC in Government Vidarbha Institute of Science Humanities, Amravati which is a college run by the State Government. These appointments were made as the Selection Committee i.e. MPSC was not issuing any advertisement. Therefore, it was no fault of respondent No.3 for him being continued on ad-
hoc posts for about 6 years (more than 1 year as required under the Government Resolution dated 06/03/1999.
After issuing the advertisement by Amravati University in the month of December 2007, and after seeking due permission from the earlier employer, respondent No.3 applied for the post of Lecturer in Physics in Amravati University. As it was the first advertisement on which the respondent No.3 was eligible to be appointed after he was initially appointed in the year 2002.
He was appointed on the same day after he was relieved from the post, on which he was appointed on ad-hac basis. Hence, there was no break in these two services required under the Government Resolution dated 06/03/1999.
wp 2154-2023.odt 11/40Both the appointments of the respondent No.3 on Petitioner's appointment was also adhoc basis as well as on a regular basis where in made under 5th pay commission. the pay scale recommended by the 5th Pay Commission and therefore the Government Resolution dated 06/03/1999 is applicable and the Government Resolution dated 11/02/1994 is applicable to the employees whose appointments were made under 4th pay commission.
The respondent No.3 was then promoted and placed in the Senior Scale of Lecturer from 31/05/2008.
The respondent No.3 was then promoted and placed in the Senior Scale of Lecturer from 31/05/2008.
The respondent No.3 by an office order dated The petitioner is placed as Associate 11/03/2020 and 22/05/2021 University teachers Professor w.e.f. 22/03/2017 and are promoted under the provisions of the Career Professor w.e.f. 22/03/2020 Advancement Scheme to the post shown in the table in the office orders and accordingly the respondent No.3 placed as Assistant Professor w.e.f. 31/08/2013, Associate Professor w.e.f.
31/05/2016 and Professor w.e.f. 31/05/2019.
The respondent No.3 was appointed as a Head of he was nominated as a Head of the Department (Physics) by order dated 28/03/2023 Department w.e.f. 1st July 2019 by an in place of the petitioner. order dated 28th June 2019 while he was working as an Associate Professor.
This order has been challenged in Writ Petition No. 2154/2023.
13. It is submitted that the above chart made it clear how the respondent No.3 is senior most in the Physics Department as soon as he entered into cadre of Professor w.e.f. 31/05/2019, whereas, the petitioner was appointed as Head of the Department w.e.f. 01/07/2019 as then he was the senior most in the cadre of Associate Professor. Though, orders were issued subsequently on 22/05/2021 effect was given from 31/05/2019 for wp 2154-2023.odt 12/40 the promotion of respondent No.3 as Professor. It is submitted by respondent No.3 that material facts are suppressed by the petitioner from the Court and obtained interim order stating that the respondent No.3 was appointed on ad-hoc basis from 2002-2008 and that services cannot be considered for the purpose of deciding the seniority. Petitioner being senior most in the cadre of Associate Professor entitled to be nominated as Head of the Department. Respondent No.3 entered into the cadre of Professor on 31/05/2019 and the petitioner on 22/03/2020, in these circumstances, the University has passed a legal and valid order based on Statute - 55. The petitioner has not challenged any of the promotion including the promotion of Professor by an office order dated 22/05/2021. Though, petition was amended, there was no amendment challenging the order of promotion of respondent No.3 as Professor, as such, it has attained finality. It is further submitted that all the contentions made by the petitioner by way of amendment, are totally illegal as he has challenged the minutes of meeting, the constitution of the Committee and promotion orders issued by illegal Committee. These contentions cannot be raised in the petition that too in the absence of the Committee as party respondent. Further it includes disputed questions of facts. The allegations incorporated after so many years and without a whisper about the reason for the delay in approaching this Court. wp 2154-2023.odt 13/40 As such, petition is not maintainable. It is submitted that appointment of respondent No.3 from 2002-2008 was on ad-hoc basis, which is the incorrect statement as the State of Maharashtra has already regularized the ad-hoc service of respondent No.3 vide letter dated 30/05/2019. On the basis of that letter, four promotions were granted to the respondent No.3 and none of the said promotions were challenged by the present petitioner. To fill up this lacuna, the petitioner moved amendment application, in fact which were hit by delay and laches. Though, this Court allowed the amendment application, however, all the objections taken in the reply in the amendment application are kept open to be heard at the time of final hearing.
14. It is submitted that there is no difference between the requisite qualification, experience, or any other criteria between the petitioner and respondent No.3. Both of them were appointed under 5th Pay Commission, which is reflected from the scale of the petitioner as well as of the respondent No.3. The pay scale in the advertisement (Page 100), pursuant to which, respondent No.3 was appointed reflects same pay scale i.e. 8000-275- 13500. The cadre is also same i.e. Lecturer in Senior College. Appointment of respondent No.3 from the year 2002-2008 on ad-hoc basis and there were technical breaks in between. Technically there is no difference between the wp 2154-2023.odt 14/40 ad-hoc employees and regular employees. Only because the MPSC has not issued the advertisement, this arrangement of appointing ad-hoc employees were made. As appointment of respondent No.3 made in the 5 th Pay Commission, the Government Resolution dated 06/03/1999 was applicable and not the Government Resolution of 11/02/1994. Considering counting of past services by UGC of 5th pay, the technical break of 141 days has been considered for CAS benefits. Therefore, in absence of Committee as a party respondent any allegation in respect of constitution of the Committee and challenge to the resolution and appointment cannot be entertained. As such, prayed for dismissal of Writ Petition No. 2154/2023 and allow Writ Petition No. 4037/2023.
15. Shri A.C. Dharmadhikari, learned Counsel for respondent No.3 in WP. 2154/2023, relied on following citations :
1. Malcom Lawrence Cecil D'souza Vs. Union of India (UOI) and others, MANU/SC/0459/1975
2. P.S. Sadasivaswamy Vs. State of Tamil Nadu, MANU/SC/0373/1974
16. Smt. Gauri Venkatraman, learned Counsel for respondent No.2 - University raised preliminary objection that the petition initially was challenging the order nominating respondent No.3 as Head of the wp 2154-2023.odt 15/40 Department of Physics and declaration of seniority over the petitioner. So far as determination of seniority is concerned, it can be done by the competent authority under the provisions of Maharashtra Public Universities Act, 2016. Determination of seniority would fall within the ambit of disputes which can be decided by the University Grievance Committee, under Section 79 of the aforesaid Act. Secondly there was an alternative, efficacious and statutory remedy available to the petitioner. Petitioner failed to represent his cause for determination of his seniority to any authority before approaching this Court. It can be referred to the Vice Chancellor, if there is any dispute or interpretation of the Clause to determine seniority. Learned Counsel, after amendment filed additional affidavit and raised serious objection that challenge to the order dated 11/03/2020 and 08/10/2021 is seriously belated and hit by unexplained delay and laches. On that ground itself submit that this Court need not interfere with the aforesaid orders. The petitioner was aware of these orders for so many years, however, kept mum. Petitioner made vague allegation without making Selection Committee as party respondent. There is no explanation whatsoever much less a sufficient one to justify the inordinate delay in raising these challenges. It was pointed out that the reason for not including the name of petitioner in Selection Committee was that approval from the Government to the petitioner's post wp 2154-2023.odt 16/40 on Associate Professor was pending and was received only on 26/10/2021. Whereas, respondent No.3's interview for Associate Professor and Professor was held on 12/01/2021. As petitioner's approval was pending, he was not eligible to be a member of the Selection Committee. So far as, allegation about non publication research papers etc. were turned down by the respondent No.2 - University. The challenge by way of amendment is of no use as it is not an order but it is merely a communication seeking approval to the proposed promotion. It is submitted that respondent No.1 - Directorate of Higher Education has vide orders dated 05/01/2022 and 06/06/2023 have granted approval to the placement of the petitioner and the respondent No.3 to the post of Professor. Thus, there is no merit in the petition as it involves extensive disputed questions of facts. Moreover, there is alternative efficacious remedy available to the petitioner.
17. Smt. Gauri Venkatraman, learned Counsel for respondent No.2 in WP. 2154/2023, relied on following citations :
1. Umesh Balkrishna Vispute Vs. State of Maharashtra and others, 2000 SCC Online Bom 508
2. Shiba Shankar Mohapatra and others Vs. State of Orissa and others, (2010) 12 SCC 471 wp 2154-2023.odt 17/40
3. P.S. Sadasivaswamy Vs. State of Tamil Nadu, (1975) 1SCC 152
4. Tejvir Singh Sodhi and others Vs. State of Jammu and Kashmir and others, 2023 SCC Online SC 344.
18. Heard all the parties at length. After going through rival submissions there is no dispute over the date of appointment of the petitioner and respondent No.3. It is the contention of the petitioner that initial appointment order dated 22/08/2002 of respondent No.3 was on contractual basis and fixed pay of Rs.8000/-. If advertisement (Page No.100 Annexure R3 VI) is perused, the pay scale given for Lecturer in senior college is shown as Rs.8000-275-13500+other allowances. However, appointment is made on consolidated amount of Rs.8000/-.
19. There is no dispute that qualification prescribed for the post held by petitioner and respondent No.3 is the same. Moreover cadre of petitioner and respondent No.3 is same i.e. Lecturer in Senior College.
20. Petitioner is challenging the order dated 30/05/2019 (page No. 49) to be quashed and set aside on the ground that conditions of Government Resolution dated 11/02/1994 and 06/03/1999 are not satisfied, therefore, break cannot be condoned. Our attention is drawn to the communication by wp 2154-2023.odt 18/40 Secretary, State of Maharashtra to the Director Higher Education, Pune dated 12/02/2019 (page 95), wherein, the decision of Government is intimated that the services rendered by the lecturers (Professors) as ad-hoc or temporary services will be taken into consideration to extend benefits under CAS, if the candidate is satisfying with the terms and conditions mentioned in Government Resolution dated 11/02/1994 and 06/03/1999. As per Government Resolution dated 11/02/1994 following are the conditions which are reproduced below :
"1. Previous service without any break as a Lecturer or equivalent in a university, college, national laboratory or other scientific organisations (CSIR, ICAR, DRDO, UGC etc.) and as a UGC Research Scientist, should be counted for placement or Lecturer in Senior Scale/Selection Grade provided, that:-
a) the post was in an equivalent grade/scale of pay as the post of a Lecturer;
b) the qualifications for the post were not lower than the qualifications prescribed by the UGC for the post of Lecturer;
c) the Lecturers concerned possessed the minimum qualification prescribed by the UGC for appointment as Lecturers;
d) the post was filled in accordance with the prescribed selection procedure as laid down by the University/State Government.
e) the appointment was not ad-hoc or in a leave vacancy of less than one year duration.
2) These services should be counted for the purpose of placement in sr. scale and selection Grade only and not for any other purposes.
3) No distinction should be made with reference to the nature of management of the institution where previous service was rendered private/local body/Government) if the above criteria are satisfied:
By order and in the name of the Governor of Maharashtra."wp 2154-2023.odt 19/40
21. This resolution is issued in accordance with the UGC guideline dated 27/11/1990. Now let us see what are the conditions mentioned in Government Resolution dated 06/03/1999. As per Government Resolution dated 06/03/1999 (Page No. 97 Annexure R3 V) following are the conditions:
^^2- ojhy lqpukarhy lqpuk dz 8-6-0 e/khy ,d o"kkZis{kk tkLr dkG dsysyh rnFkZ lsok [kkyhy ijrqadkuqlkj ofj"B Js.kh@ fuoM Js.kh LFkku fuf'prh djrkuk ifjx.khd djrk ;sbZy vls dGfoys vkgs-
v½ rnFkZ lsok gh ,d o"kkZis{kk tkLr dkyko/khph gksrh- c½ mesnokjkaph vf/kO;k[;krk inkojhy fu;qDrh foghr dsysY;k fuoMlferhP;k f'kQkj'khuqlkj dj.;kar vkyh gksrh-
d½ mesnokjkaph rnFkZ lsosyk tksMwu R;kr dks.krkgh [kaM u iMrk LFkk;h inkoj fu;qDrh >kyh gksrh-
3- lyx lsosph ifjx.kuk djrkuk lgk efgU;kdfjrk lsok[kaM {kekfir dj.;kckcrps f'k{k.k lapkyd ¼mPp f'k{k.k½ ;kaps vkns'k y{kkr ?ksÅu o vkSipkfjdrk Eg.kwu vf/kO;k[;kR;kauk lsosr fnysyk [kaM gk LFkku fuf'prhdjrk [kaM Eg.kwu fopkjkr ? ks.;kr ;sm u;s-**
22. This Government Resolution was issued in pursuant to the guidelines issued by UGC dated 24/12/1998, specifically Clause No. 8.6.0 which reads as under :
"8.6.0 The appointment was not ad-hoc or in a leave vacancy of less than one year duration. Ad hoc service of more than one year duration can be counted provided-
(a) the ad hoc service was of more than one year duration;
(b)the incumbent was appointed on the recommendation of duly constituted Selection Committed; and
(c) the incumbent was selected to the permanent post in continuation to the ad hoc service, without any break."wp 2154-2023.odt 20/40
23. Thus, in view of 1998 Government Resolution, the service rendered on temporary basis can be considered for placement of the candidate in higher grade or selection grade. By this Government Resolution, it is also made clear that while calculating continuous service, as per orders of Director of Higher Education to condone the break in service to the extent of six months. Technical breaks given in the services of Lecturer will not be taken as a break in service while giving placement. As such, it appears that respondent No.3 moved an application for condonation of break of 141 days on 29/02/2019 to Director of Higher Education, Pune. He again issued letter dated 28/03/2019 for considering his previous services for the promotion of Assistant Professor Stage - 3, Associate Professor and Professor to the Registrar, Sant Gadge Baba Amravati University. The Director of Higher Education vide letter dated 30/05/2019 (Page 128) granted permission to condone the break of 141 days of his previous services. Accordingly, break was condoned and the University promoted Professor under the provisions of CAS (Career Advancement Scheme) to the post in front of their names in the column No.3 vide order dated 11/03/2020.
Sr. Name of Post of Pro- Subject/ Pay Band of promo- Date of No. University Teacher motion Department tion Promotion wp 2154-2023.odt 21/40
1. ....
10. Dr. S.A. Waghuley Lecturer Sr. Physics 10000-325-15200/- 31.5.2008 Scale (unrevised)
11. Dr. S.A. Waghuley Assistant Physics Rs.15600-39100/- 31.5.2013 Professor with AGP of Stage 3 Rs.8000/-
(unrevised)
12. Dr. G.G. Muley Associate Physics Rs.37400-67000/- 22.3.2017 Professor with AGP of Rs.9000/-
(unrevised)
24. Second order of promotion issued on 22/05/2021, whereby, the respondent No.3 has given pay scale of Associate Professor on 31/05/2016 and of Professor on 31/05/2019. Whereas, petitioner awarded pay scale of Professor on 22/03/2020 vide order dated 30/10/2021. Thus, respondent No.3 entered into cadre of Professor on 31/05/2019, whereas, petitioner on 22/03/2020.
25. Thus it can be seen that respondent No.3's service is treated as continuous service by condoning the technical break. It has also came on record that the post, which respondent No.3 initially was holding, was of the equivalent grade i.e. Lecturer in senior College, even pay scale in the advertisement is the same as of petitioner. Now question is whether post was filled in accordance with the prescribed selection procedure by University/State Government. It is the contention of petitioner that post was wp 2154-2023.odt 22/40 not filled in by the UPSC nor there was any duly constituted Selection Committee.
26. Learned Counsel for petitioner relied on Registrar Karnataka University and another Vs. Dr. Prabhugouda and another (Supra). However, facts involved in this matter are distinguishable from the facts involved in the present matter. Petitioner claiming his services on ad-hoc basis from 01/01/2009 be considered for grant of promotion under CAS instead of considering it from 28/10/2013, which is the date of regular appointment. His representation came to be rejected on the ground that there is no such provision to grant the said benefit from 01/01/2009. It is held by Hon'ble Apex Court that High Court while allowing writ petition, given liberal meaning to the word 'Colleges' by extending to 'Affiliated College'. The Hon'ble Apex Court interpreted Statute 12.7, which deals with Screening cum Evaluation Committee for CAS promotion. Wherein, the incumbent who is in active service of University/Colleges was eligible to be considered by the Selection Committee. In present matter, as per the decision of the Government, services on ad-hoc basis rendered in the Government College (Government Vidarbha Institute of Science and Humanities) is to be considered for grant of CAS. There are specific Government Resolution to wp 2154-2023.odt 23/40 that effect and therefore, it cannot be compared to the Clause 12 of Statute of Karnataka University. On the backdrop of this fact, the Hon'ble Apex Court held that the benefit can be given to the incumbent only from the entry of service of such incumbent into the University.
27. Learned Counsel also relied on State of Haryana Vs. Haryana Veterinary AHTS Association and another (supra), in this matter before the Hon'ble Apex Court, the State Government resisted the claim of the respondent by contending that the appointment of petitioner Rakesh Kumar on 04/01/1980 was purely on ad-hoc basis and was not in accordance with the provisions of recruitment Rules and he got regular appointment on 29/01/1982 and therefore, 12 years period required for getting the benefit issued by the Haryana Government would count from the said date of 29/01/1982 and not from 04/01/1980. However, in the present matter, there is no such issue as the appointments were made as per duly constituted Selection Committee and by following due procedure for making such ad- hoc appointments. Thus, in our considered opinion, citation relied is not applicable in the present set of facts.
28. Learned Counsel also relied on Dwijen Chandra Sarkar and wp 2154-2023.odt 24/40 another Vs. Union of India and others (supra), in support of his contention that though petitioner is held to be eligible for CAS benefits, however, it would not disturb the seniority existing in the University. In the matter before the Hon'ble Apex Court the issue was whether service rendered by an employee prior to his transfer to P & T Department to be counted. It is held that services rendered in Rehabilitation Department would be counted in computing eligibility period of 16 years for time bound promotion. Where there are large number of employees in any department and when the employees have not likely to get their promotion in the near future because of their comparatively low position in the seniority list, the Government has found it necessary that in order to remove frustration, the employees are to be given a higher grade in terms of emoluments. This is generally known as the time bound promotion. In the present petition, the Career Advancement Scheme (CAS) is under consideration. The benefit is extended as per the length of service in the specific cadre is completed. Seniority is also fixed as per entry of the candidate in that cadre on the basis of length of service and other eligibility. As such, there is no lacuna or illegality in the nomination of respondent No. 3 to the post of Head of the Department of Physics.
29. Learned Counsel for petitioner placed reliance on R.P. Chillar and wp 2154-2023.odt 25/40 others (supra), in support of his contention that previous service should be without any break as a lecturer. In the said matter, UGC letter dated 27/11/1990 was relied upon. However, in present matter, UGC guidelines of 1994 and 1999 are under consideration, as such, it is not applicable in the present set of facts.
30. Learned Counsel for petitioner also relied on State of Odisha and others (supra), wherein the Hon'ble Apex Court held that appointment made in contravention of statutory provisions are held as void ab initio. However, after going through the contention of all the parties, we are satisfied that there is no any contravention of statutory provisions to treat appointment of respondent No.3 as void ab initio.
31. Reliance is placed by learned Counsel for petitioner on Gambhirdan K. Gadhvi (supra), however, this citation is in respect of the appointment of Vice Chancellor, wherein the Hon'ble Apex Court held that appointment of Vice Chancellor cannot be made dehors the applicable UGC Regulations, even if the State Act concerned prescribes diluted eligibility criteria vis-a-vis the criteria prescribed in the applicable UGC Regulations. In the matter at hand, there is no such grounds raised by the petitioner that the Government Resolutions are contrary to the UGC guidelines. As such, the wp 2154-2023.odt 26/40 citation is of no help to the petitioner.
32. Learned Counsel for respondent No.3 Shri A.C. Dharmadhikari, has invited our attention to letter dated 12/02/2019, by State of Maharashtra to Director of Higher Education by which, previous services of Lecturer on ad-hoc appointments are directed to be considered for benefits of CAS, provided that conditions mentioned in Government Resolution dated 11/02/1994 and 06/03/1999 are satisfied. It is submitted that due procedure is followed while appointing the present petitioner on ad-hoc basis. If appointment order dated 22/08/2002 (Annexure R3 VIII Page No. 105), is seen, that appointment was made on the recommendation of Selection Committee which came to be constituted under Government Resolution dated 29/01/1994, the said Committee was constituted for appointment of Lecturers on ad-hoc basis in the Government Colleges/Sciences Institutions. There was an advertisement dated 01/06/2002, in pursuant to which, the said appointment was given. As such, there is no difference between the grade/pay or educational qualification. There was an advertisement on 12/01/2007 for the post of Lecturer in Physics in 'Open' category. Respondent No.3 applied for the same. He came to be selected on 06/10/2008, on the recommendation of Selection wp 2154-2023.odt 27/40 Committee constituted under provisions of University Statute No. 2 of 2001. It is pointed out that when the petitioner came to be appointed on 12/03/2003 in University at that time the post advertised was for 'Reserved' category. Therefore, there was no occasion for respondent No. 3 to apply for the same being from open category. However, he was selected through legally constituted Selection Committee in Government Vidarbha Institute of Science and Humanities. It is pertinent to note here that on the day when respondent No.3 resigned from his previous college, on the very date, he joined on the duty in University on 08/10/2008. Thus, there was no break between temporary service and regular service.
33. In view of the representation made by the respondent No.3 to the University for considering his previous services for the benefit of CAS for condoning the break in service, the University by way of communication dated 29/05/2017 (Annexure R3 XIX Page No. 118) informed to the Additional Director of Higher Education that Dr Waghuley respondent No.3, was while in ad-hoc service in Government Dhnyan Vidhnyan Sanstha, Amravati, applied for the post of Lecturer in University with due permission from his earlier institution and there is no break in service on ad- hoc basis and regular basis. University by giving reference to the wp 2154-2023.odt 28/40 Government Resolution dated 23/03/2016, pointed out that services of 42 ad-hoc/contractual employees, including Lecturers were regularized from their date of joining and granted with all service benefits, including old pension scheme. As Dr. Waghuley is similarly situated employee, his case can be considered for regularizing his service and applying old pension rules. After various correspondence, the Director of Higher Education, Pune vide its letter dated 30/05/2019, (Page No. 128), informed to the Regional Director Higher Education that the break of 141 days for placement/pay fixation in the services of Dr Waghule is condoned, subject to compliance of conditions as per circular dated 12/02/2019. It can be seen that not only condition mentioned in Government Resolution dated 11/02/1994 but also mentioned in Government Resolution dated 06/03/1999, required to be fulfilled to get such benefit.
34. It can be seen that only because the State Government has not issued the advertisement through MPSC, this arrangement of appointing ad- hoc employees through Selection Committee approved by the Government. This is also mentioned in the Government Resolution dated 06/03/1999, in Clause- 5 that the regular post of Lecturer are made after recommendation of MPSC. However, before such regular appointments are being made, the post wp 2154-2023.odt 29/40 which are to be filled in on ad-hoc basis are to be filled in on the recommendation of duly constituted Selection Committee. If such Lecturers satisfy the condition of qualification, their ad-hoc services can be considered for placement of Higher Grade/Selection Grade. If Notification (Page No.
424) dated 01/06/2002 issued by Directorate of Higher Education, Maharashtra State, Pune, is seen, which is an advertisement calling application for filling up the post on ad-hoc basis, it is made clear that said services of the incumbent may be terminated, even earlier, if selected candidates are appointed through MPSC. It is also informed that demand for regular appointment against vacant post has already been requisition to MPSC. Even appointment order issued in favour of respondent No.3 dated 22/08/2002, makes it clear that his appointment is recommended by the Selection Committee constituted as per Government Resolution dated 29/01/1994 and ad-hoc appointment shall be terminated if regular employee is appointed through MPSC. Thus it is clear that there is selection Committee constituted by Government to fill up the vacant post on adhoc basis that too after advertisement and selection.
35. If UGC Regulation 2010, on minimum qualification for appointment of teachers and other academic staff and measures for the wp 2154-2023.odt 30/40 maintenance of standards in higher education, is seen, inter-se seniority of the teachers promoted under CAS shall be determined with reference to their date of eligibility as intimated in the recommendation of the Selection Committee of the respective candidates. As such, placement is benefit of particular cadre. Professor, Assistant Professor are cadre and seniority will be based on entry in the said cadre.
36. Learned Counsel for petitioner also relied on Dr. Pranab Kumar Karmarkar (supra), in support of his contention that counting of past service can't be considered, unless the service fulfills the norms as laid down in point number 8.5.0 and 8.6.0, which has been clarified by the Rules of the UGC that the previous appointment on ad hoc basis or temporary service of more than one year duration can be counted provided the appointment was made on the recommendation of duly constituted Selection Committee and the incumbent was selected to the permanent post in continuation of the ad hoc or temporary service without any break. As discussed earlier all the conditions which are in the Government Resolutions of 1994 and 1999 are duly complied by the respondent No.3 and his technical break in previous service was condoned as per the Rules. Needless to mention here that he is not the only employee, whose break in service was condoned, but there were wp 2154-2023.odt 31/40 other 42 employees including lecturers, whose past adhoc services were regularised by condoning the technical break in service.
37. Learned Counsel for respondent No.3 vehemently submitted that there is delay and laches in challenging the order. It is his contention that interim order was procured by the petitioner by misleading the Court and suppressing the material facts. Petitioner initially filed petition only with the prayer for cancellation of nomination of respondent No.3 as the Head of Department in Physics and in respondent No.3's place, he be continued as Head of Department of Physics Department. He made a statement that the respondent No.3 entered into the service in 2008, whereas he entered into service in 2003. He also impressed upon the Court that his previous service was temporary basis. However, he has not disclosed that service of respondent No.3 was regularised by condoning the technical break in service.
38. Whosoever entered into the cadre of Professor first will be entitled to be appointed as Head of the Department. The UGC guidelines of 2018 as accepted by the Government of Maharashtra vide Government Resolution dated 08/03/2019. Clause- 4 in the directions issued by Sant Gadge Baba Amravati University Gazette dated 26/10/2023, (Page No. 177 wp 2154-2023.odt 32/40 R2 1), the post of Head of Department is to be by nomination on the basis of seniority. The channel of seniority is provided in Clause- 4 (2) for University Teaching Department/Conducted College of University, seniority of teacher in the respective cadres shall be "(a) Senior Professor shall be senior to the professor (b) Professor shall be senior to the Associate Professor (c) Associate Professor shall be senior to the Assistant Professor". Clause- 4(14) provides that "in case of any dispute or interpretation of the clause to determine the seniority, the same shall be referred to the Vice Chancellor whose decision shall be final and conclusive."
39. It can be seen that petitioner without challenging the seniority, initially challenged the order of nomination of the respondent No.3 as a Head of Department. Subsequently in 2024, sought amendment and also challenged the order of promotion. There is no explanation, whatsoever for delay in challenging the promotion.
40. Learned Counsel for the respondent No.3 relied on Malcom Lawrence Cecil D'souza (supra), wherein it is held as under:
"9. Although security of service cannot be used as a shield against administrative action for lapse of a public servant, by and large one of the essential requirements of contentment and efficiency in public services is a feeling of security. It is difficult no doubt to wp 2154-2023.odt 33/40 guarantee such security in all its varied aspects, it should at least be possible to ensure that matters like one's position in the seniority list after having been settled for once should not be liable to be reopened after lapse of many years at the instance of a party who has during the intervening period chosen to keep quite. Raking up old matters like seniority after a long time is likely to result in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time."
41. Learned Counsel for respondent No.3 also relied on P.S. Sadashivaswamy (supra), the Hon'ble Apex Court held that "A person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extra-ordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters."
42. Though, respondent No.3's pay was fixed while in contractual service, grade was the same. Petitioner did not challenge the order of promotion and the order condoning the break in service. Thus, on 11/03/2020 (Page No. 50 Annexure G) respondent No.3 - Shri Waghuley is wp 2154-2023.odt 34/40 promoted under the provisions of CAS to the post of Lecturer Senior Scale with effect from 31/05/2008 and Assistant Professor Stage 3 on 31/05/2013. Whereas, petitioner promoted to Associate Professor with effect from 22/03/2017, vide order dated 09/10/2021. Respondent No.3 promoted as Professor in the cadre of Professor with effect from 31/05/2019, whereas, petitioner entered into cadre of Professor with effect from 22/03/2020, vide order dated 30/10/2021, (page 53). Though amendment in the prayer clause was allowed by this Court vide order dated 05/04/2024, all points were kept open. Said promotion of respondent No. 3 in the cadre of Professor is duly approved by Director of Education (Higher Education) vide its communication dated 05/01/2022 (Page 459 Annexure R2 3). The petitioner by way of amendment, seek relief to quash and set aside the order dated 30/05/2019, by which, break of 141 days was permitted to be condoned by Director (Higher Education). The petitioner also seek relief to quash and set aside the orders dated 11/03/2020 (Annexure - G) and 08/11/2021 (Annexure - J), which are the promotion order in respect of respondent No.
3. These orders are passed on 11/03/2020 and 08/10/2021. However, those were challenged in 2024. There is no justifiable explanation for such delay. The only reason across the bar submitted by learned Counsel for petitioner that when nomination of respondent No.3, for Head of the Department wp 2154-2023.odt 35/40 issued by University, he is aggrieved by the same. Therefore, he challenged the said order. In our considered opinion, when channel of seniority, the procedure for nomination for Head of the Department was well within the knowledge of petitioner, he kept mum till 2024, as he was Head of the Department, the then senior most in the cadre of Associate Professor.
43. Learned Counsel for respondent No.2 University, in support of her contention that there are disputed question of facts and as alternate remedy is available, the petition is not maintainable, relied on Umesh Balkrishna Vispute (supra), wherein this Court held that the determination of question of inter se seniority always involve disputed questions of fact. The disputed questions of fact involved and sought to be raised cannot be satisfactorily gone into or, adjudicated by this Court in exercise of its jurisdiction under Article 226 of the Constitution. We feel that this Court must exercise judicial restraint so far as judicial interference in the cases of this nature are concerned. The Court can refuse to exercise its discretion in a given case. It is also held that when an alternate and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not the invoke writ jurisdiction to seek the prerogative writ.
44. Reliance is placed by learned Counsel Ms Venkatraman for wp 2154-2023.odt 36/40 University on Shiba Shankar Mohapatra and others (supra), wherein the Hon'ble Apex Court held as under:
"18. The question of entertaining the petition disputing the long standing seniority filed at a belated stage is no more res integra. A Constitution Bench of this Court, in Ramchandra Shankar Deodhar v. State of Maharashtra considered the effect of delay in challenging the promotion and seniority list and held that any claim for seniority at a belated stage should be rejected inasmuch as it seeks to disturb the vested rights of other persons regarding seniority, rank and promotion which have accrued to them during the intervening period. A party should approach the court just after accrual of the cause of complaint. While deciding the said case, this Court placed reliance upon its earlier judgments, particularly in Tilokchand Motichand v. H.B. Munshi wherein it has been observed that the principle on which the court proceeds in refusing relief to the petitioner on the ground of laches or delay, is that the rights, which have accrued to others by reason of delay in filing the writ petition should not be allowed to be disturbed unless there is a reasonable explanation for delay. The Court further observed as under:
"7. ... The party claiming fundamental rights must move the Court before other rights come into existence. The action of courts cannot harm innocent parties if their rights emerge by reason of delay on the part of the person moving the Court.""
45. Learned Counsel for respondent No.2 vehemently argued that it is settled legal proposition which emerges is that once the seniority had been fixed and remain in existence for a reasonable period, any challenge to the same should not be entertained. Respondent Nos.2 and 3 both relied on P.S. Sadashivaswamy (supra). It is contended that an aggrieved person must wp 2154-2023.odt 37/40 approach to the Court at least within 6 months or at the most in a year of such promotion.
46. In reply to the contention of the petitioner that Selection Committee was not acted as per the guidelines and made appointment contrary to the guidelines, there were no research papers or thesis submitted as per the guidelines, the learned Counsel for respondent No.2 submitted that till 2024, the petitioner has not challenged either Constitution of the Selection Committee or its decision. For the first time, in 2024, he is raising these grounds in the absence of Committee, if at all, he was so much aggrieved by the decision of the Selection Committee, he ought to have made party respondents to the Selection Committee. There is substance in this contention. Petitioner conveniently ignored the fact that his promotion is also effected by the same committee.
47. The learned Counsel for respondent No.2 relied on Tajvir Singh Sodhi and others (supra), wherein it is held by the Hon'ble Apex Court as under:
"66. Thus, the inexorable conclusion that can be drawn is that it is not within the domain of the Courts, exercising the power of judicial review, to enter into the merits of a selection process, a task which is the prerogative of and is within the expert domain of a Selection wp 2154-2023.odt 38/40 Committee, subject of course to a caveat that if there are proven allegations of malfeasance or violations of statutory rules, only in such cases of inherent arbitrariness, can the Courts intervene.
67. .... In light of the position that a Court cannot sit in appeal against the decision taken pursuant to a reasonably sound selection process."
48. In view of Government Resolution dated 08/03/2019 which refers to constitution of Selection Committee. Head of the Department is one of the member for selection of Assistant Professor. However, petitioner's grievance was that he was not called in the meeting. In reply to this contention, the University has made it clear that on the day when he was given charge of Head of the Department, he was senior most in the cadre of Associate Professor however, there was no approval from the Competent Authority.
49. Considering the facts, the statutory provisions and guidelines issued by the UGC, we are of the considered opinion that order nominating respondent No.3 as a Head of the Department of Physics is perfectly justified. There is no illegality nor any provision is violated. There is no claim of malafides. In fact, the proper remedy to the petitioner was then to challenge it before the Vice Chancellor, however, to overcome this objection of maintainability, the petitioner amended the petition and also challenged the communication dated 31/05/2019 and orders dated 11/03/2020 and wp 2154-2023.odt 39/40 08/11/2021. Thus though, alternate efficacious remedy available to the petitioner, he challenge the same in the present Writ Petition, the petition heard on maintainability as well as on merit, considering the additional prayer made in this petition in 2024. In view of the judgments passed by the Hon'ble Apex Court, the petitioner ought to have challenge the promotion of the respondent No.3, within a period of six months or at the most within a period of one year. There is unexplained delay on the part of petitioner to challenge the same. Even on merit, we have concluded that the nomination of respondent No.3 is recommended after following and considering all the provisions and guidelines issued by UGC. As such, Writ Petition No.2154/2023 is liable to be dismissed as petition failed on both the count i.e. maintainability as well as on merit. Accordingly, we proceed to pass the following order:
ORDER
i) Writ Petition No.2154/2023 is dismissed.
ii) Writ Petition No.4037/2023 is allowed. iii) The impugned communication in Writ Petition No.4037/2023
dated 17/04/2023 (Annexure-A) and 28/04/2023 (wrongly written as 28/04/2022) (Annexure - B) issued by respondent No.2- Sant Gadgebaba Amravati University, Amravati, are hereby quashed and set aside.wp 2154-2023.odt 40/40
iv) The communication dated 28/03/2023 by respondent No.2 communicating the petitioner as Head of the Physics Department is hereby restored.
v) This Court directs the petitioner in Writ Petition No.2154/2023 Shri G.G. Mule, to hand over the charge of Head of Department of Physics immediately to the respondent No.3 i.e. Dr. S.A. Waghuley.
50. Both Writ Petitions stand disposed of in above terms.
JUDGE JUDGE At this juncture the learned Counsel for the petitioner in Writ Petition No.2154/2023 requested to keep this order in abeyance for a period of 4 weeks as there was interim relief. However, in view of the facts that in the Writ Petition itself, it is observed that the interim order was obtained on false information. As such, we do not inclined to stay the effect and execution of the present judgment.
JUDGE JUDGE
Jayashree/R.S. Sahare
Signed by: Mrs. Ranjana Sahare
Designation: PA To Honourable Judge
Date: 19/07/2024 16:46:54