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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.7062 OF 2017
Dr. Manisha Manoharrao Bhatkulkar,
Aged about 48 years, Occu.: Service,
R/o. 101, Gokul Govardhan Apartment,
Sumit Nagar, Jaitala Road, Nagpur.
.. PETITIONER
.
// VERSUS //
1. The State of Maharashtra,
through its Principal Secretary Higher
and Technical Education Department,
Mantralaya, Mumbai - 32.
2. The Vice-Chancellor of the Rashtrasant
Tukdoji Maharaj Nagpur University, Nagpur.
3. The Registrar - Returning Officer of
the Rashtrasant Tukdoji Maharaj Nagpur
University, Nagpur.
4. Jawaharlal Nehru College of Arts,
Commerce and Science, Wadi,
through its Principal, Wadi,
Dist Nagpur.
5. Shri Arun U. Deore,
Aged About 47 Yrs., Occu: Service,
R/o C/o. Jawaharlal Nehru College of
Arts, Commerce and Science,
Wadi, Nagpur.
.. RESPONDENTS
.
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Shri A.I. Sheikh, Advocate for the petitioner.
Ms. T.H. Khan, A.G.P. for respondent No.1.
Shri P.B. Patil, Advocate for respondent Nos.2 and 3.
Shri S.P. Bhandarkar, Advocate for respondent No.5.
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CORAM : Z.A. HAQ, J.
DATED : NOVEMBER 23, 2017.
ORAL JUDGMENT :
1. Heard Shri A.I. Sheikh, Advocate for the petitioner, Ms T.H. Khan, A.G.P. for respondent No.1, Shri P.B. Patil, Advocate for respondent Nos.2 and 3 and Shri S.P. Bhandarkar, Advocate for respondent No.5.
The notice of petition is not served on respondent No.4- College, however, considering the nature of dispute and the fact that the elections of Board of Studies are scheduled on 25 th November, 2017 and as the contesting parties are represented, the petition is taken up for hearing.
2. The Principal of the respondent No.4 college had designated the petitioner as the Head of the Department of Zoology while sending the list of Heads of the Departments for the purposes of preparing the list ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:44:28 ::: 3 wp7062.17 of voters for the election as per Section 40(2)(c) of the Maharashtra Public Universities Act, 2016. The respondent No.5 raised an objection for inclusion of the name of the petitioner in the list of voters. The respondent No.5 contended that he is senior to the petitioner and should be designated as Head of the Department of Zoology and his name should be included in the voters' list. The Returning Officer upheld the objection of the respondent No.5, deleted the name of the petitioner from the voters' list and included the name of the respondent No.5 in the voters' list. The petitioner challenged the decision of the Returning Officer before the Vice Chancellor in appeal which is dismissed. Being aggrieved by the decision of the Returning Officer and by the order passed by the Vice Chancellor, the petitioner has filed this writ petition.
3. The point, which arises for consideration in this writ petition is whether the Returning Officer can determine the interse seniority of the lecturers working in the affiliated colleges and whether the Returning Officer can compel the Management/Principal of the College to designate the name of the Senior Most Lecturer for inclusion in the list of voters for the Board of Studies to be constituted as per Section 40(2)(c) of the Maharashtra Public Universities Act, 2016, ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:44:28 ::: 4 wp7062.17 though some other lecturer is admittedly working as Head of the College Department.
4. RULE. Rule made returnable forthwith.
5. The relevant facts are as follows:
The petitioner was appointed by order dated 17 th January, 2000 as Lecturer in Zoology. The petitioner joined duties on 17 th January, 2000. By communication dated 25th February, 2000, the Assistant Registrar of the University informed that the Vice-Chancellor had granted approval to the appointment of the petitioner as full-time Lecturer from academic session 1999-2000 onwards on ad-hoc basis subject to the conditions laid down in the Government Resolution dated 22nd December, 1995. This Government Resolution permitted the appointments of lecturers who did not fulfil the eligibility criteria of qualifying National Eligibility Test/State Eligibility Test, on ad-hoc basis. It is undisputed that the petitioner is in continuous service in the respondent No.4 college since the date of his appointment.
6. The respondent No.5 was appointed as full-time Lecturer in Zoology by appointment order dated 17 th January, 2000. The respondent No.5 joined duty on 18th January, 2000. By the ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:44:28 ::: 5 wp7062.17 communication dated 25th February, 2000, the appointment of respondent No.5 as full-time Lecturer was approved from 1999-2000 onwards on ad-hoc basis subject to the conditions laid down in Government Resolution dated 22nd December, 1995. It is undisputed that the respondent No.5 is also in continuous service with the respondent No.4 college since the date of his appointment.
7. As the petitioner and the respondent No.5 had not qualified National Eligibility Test/State Eligibility Test, exemption was sought from the University Grants Commission and it was granted on 5 th November, 2008. After the University Grants Commission granted exemption to the petitioner and the respondent No.5, the University informed by the communication dated 11th April, 2009, that the approval to the appointments of the petitioner and the respondent No.5 was continued.
8. The name of the petitioner was forwarded by the college as Head of Department of Zoology on 30 th August, 2005 and on 8 th March, 2011 for the election of Board of Studies held in 2005 and 2010 and she had cast her vote. At that time Respondent No.5 had not raised dispute that the petitioner was not the Head of Department. ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:44:28 :::
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9. The point, whether the Returning Officer has power to determine the interse seniority and declare who is the Senior Most Teacher in the department of affiliated college and who is Head of the College Department is examined by me in Writ Petition No. 7061 of 2017 (Dr. Nitin Chintaman Kongre Vs. The State of Maharashtra & others), listed simultaneously along with the present writ petition. In Writ Petition No. 7061 of 2017, I have held that the powers of the Returning Officer are limited to examine as to who is the de facto Head of the College Department. I have held that the Returning Officer cannot exercise adjudicatory powers to determine the interse seniority of the teachers and cannot declare as to who should be designated as Head of the College Department.
For the reasons recorded in the judgment given in Writ Petition No.7061 of 2017, this petition is also allowed in the following terms:
(i) The decision of the Returning Officer dated 5th October, 2017 is quashed.
(ii) The order passed by the Vice-Chancellor on 18 th October, 2017 is set aside.::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:44:28 :::
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(iii) The respondent No.3 - Returning Officer is directed to include the name of the petitioner as Head of Department of Zoology in the list of Heads of Departments submitted by the Principal of the respondent no.4 college.
(iv) The respondent No.3 - Returning Officer is directed to delete the name of respondent No.5 from the list of Heads of Departments submitted by the Principal of respondent No.4 college.
(v) By an interim order passed by this Court on 3rd November, 2017, it is directed that the nomination form of the petitioner be accepted.
It is pointed out that the nomination form of the petitioner is accepted.
The respondent No.3 - Returning Officer shall proceed with the election of Board of Studies for Zoology subject, considering the petitioner as member of the Collegium of voters' list for the election of Heads of Departments as per Section 40(2)(c) of the Act of 2016.
Rule is made absolute in the above terms. In the circumstances, the parties to bear their own costs. ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:44:28 :::
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10. At this stage, the learned Advocate for the respondent Nos.2 and 3 and the learned Advocate for the respondent No.5 have prayed that this judgment be kept in abeyance for four weeks to enable them to take appropriate steps in the matter. The request is opposed by the learned Advocate for the petitioner. However, as the elections are scheduled on 25th November, 2017 and the respondent Nos.2, 3 and 5 will not be able to take appropriate further steps in the matter till then, in my view, it would be appropriate to direct that the election for Board of Studies for Zoology subject shall not be held for four weeks from today.
Further elections in which the petitioner would be entitled to participate (contest and / or vote, if elected on Board of Studies) shall not be held until the elections for the Board of Studies of Zoology are held and results are declared.
JUDGE RRaut..
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