Bombay High Court
Ram Raosaheb Phawade And Ors vs The State Of Mah And Ors on 29 October, 2015
Bench: S.S. Shinde
5336.12WP
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5336 OF 2012
1. Ram S/o Raosaheb Phawade
Age : 35 years, Occ : Service,
R/o Lasona, Tq. Deoni, Dist. Latur.
2. Shivaji S/o Pundlikrao Shinde
Age : 38 years, Occ ; Service,
R/o Lanswad, Tq. Bhalki,
Dist. Bidar.
3. Shrimant S/o Vaijnath Bhalke
Age : 36 years, Occ : Service,
R/o Neknal, Tq. Deoni,
Dist. Latur.
..PETITIONERS
-VERSUS-
1. The State of Maharashtra
Through its Secretary,
Higher and Technical Education Department,
Mantralaya, Mumbai.
2. The Joint Director of Higher Education,
Nanded Region, Nanded.
3. Swami Ramanand Teerth
Marathwada University,
Nanded, Thrugh its Registrar.
4. Lok Jagruti Shikshan Sanstha
Walandi, Tq. Deoni, Dist. Latur
Through its Secretary
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5. Vivek Vardhini Mahavidyalaya,
Deoni, Tq. Deoni, Dist. Latur
6. University Grant Commission,
Through its member/Secretary,
Bahadursh Zafarmarg,
New Delhi 110 002.
..RESPONDENTS
...
Advocate for Petitioners : Mr. A.V. Patil h/f Mr. V.D.
Gunale
A.G.P. for Respondent nos. 1 and 2 : Mr. A.G. Magre
Advocate for Respondent No.3 : Mr. U.S. Malte
Advocate for Respondent No.4 : Mr. U.L. Manale
Advocate for Respondent No.6 : Mr. Alok Sharma
...
CORAM : S.S. SHINDE &
A. M. BADAR, JJ.
RESERVED ON : 14th October, 2015
PRONOUNCED ON : 29th October, 2015.
...
JUDGMENT (PER S.S.SHINDE, J.) :
Rule. Rule made returnable forthwith. By
consent of the learned counsel appearing for the
parties, heard finally.
2. This Petition is filed with the following
prayers :-
"(B) By issuing appropriate writ, order or
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directions, the impugned communication dated
10/5/2010 and 30/09/2010 (At Exhibit-"L"
colly.) be quashed and set aside, consequently
the. respondent NO.3 be directed to grant
permanent approval to the petitioners and for
that purpose necessary directions be issued."
3. It is the case of the petitioners that,
initially pursuant to the selection by selection
committee of the respondent No.4 and 5, and
thereafter pursuant to the selection made by duly
constituted selection committee of the respondent
NO.3 university, although the petitioners are
appointed and working in respondent NO.5
-college, and they are possessing the requisite
qualification, the respondent No.3 university has
refused to grant approval to the services of the
petitioners. It is the case of the petitioners that, the
petitioners are possessing the qualification of master's
degree in their respective subjects. The petitioners have
also completed M.Phil. course in the year 2009. The
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petitioner NO.1 is the Lecturer in History subject,
Petitioner NO.2 is Lecturer in Marathi subject,
petitioner NO.3 is Lecturer in Sociology subject. The
petitioners have placed on record the copies of the
documents showing educational qualifications of
respective petitioners along with M.Phil certificates in
the compilation of the Writ Petition.
4. It is the case of the petitioners that, the
petitioners being eligible and qualified, initially had
applied for the post of lecturers in respondent NO.5
college pursuant to the advertisement dated 4 th August,
2001. The said advertisement was issued for making
appointment of lecturers. The petitioners were
interviewed by the selection committee constituted by
the respondent No.4 and 5 and having found
meritorious, the petitioners were issued appointment
orders on temporary basis. The petitioners have placed
on record the copies of advertisement dated 4/8/2001
and the appointment orders with the compilation of the
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Petition. It is the case of the petitioners that, pursuant
to their above selection, the respondent NO.3 university
had granted them temporary approval on clock-wise
basis. It is the case of the petitioners that, in the
academic year 2003-2004, the respondent Nos. 4 and 5
applied for approval from the respondent NO.3
university to fill in posts of lecturers in respondent
NO.5 -college permanently through the duly constituted
selection committee. Pursuant to such application
made by respondent NO.5 college, the respondent NO.3
university had granted approval for issuance of the
advertisement. The petitioners have placed on record
copy of the approval dated 11/10/2003 with the
compilation of Writ Petition.
It is the case of the petitioners that, as
stated above, the petitioners were working on clock-
wise basis in the respondent NO.5 college pursuant to
their selection by the selection committee of the
respondent NO.3 university. It is the case of the
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petitioners that, as per above approval by the
respondent NO.3 University, the advertisement was
issued and interview was fixed on 20/1/2004.
Accordingly, the petitioners applied for the post of
lecturers in their respective subjects from open
category since the post of lecturer in History, Marathi
and Sociology shown for open category candidates. The
petitioners have placed on record the copy of
advertisement dated 07/11/2003 with the compilation
of the Writ Petition.
It is the case of the petitioners that,
pursuant to their application, the duly constituted
selection committee interviewed the petitioners. After
assessed petitioners merit, the duly constituted
selection committee recommended the petitioners for
appointment on the posts of Lecturers in their
respective subjects. The petitioners have placed on
record the copies of minutes of the selection committee
with the compilation of the Writ Petition.
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5. It is the case of the petitioners that,
pursuant to the above recommendation of the selection
committee, they were appointed on the post of
Lecturers in their respective subjects and their proposal
was forwarded with the respondent NO.3 university for
approval. The petitioners have placed on record copies
of appointment orders dated 10/08/2003 of petitioners
and proposal dated 05/02/2004 with the compilation
of Writ Petition. It is the case of the petitioners that,
pursuant to their selection through duly selection
committee and consequent proposal for approval, the
respondent NO.3 university by communication dated
19/3/2004 pleased to grant approval to the petitioners
on clock-wise basis for the academic year 2003- 04,
although the petitioners were appointed against clear,
vacant and permanent post. The petitioners have
placed on record the copy of approval letter dated
19/3/2004 with the compilation of Writ Petition. It is
the case of the petitioners that, thereafter, by
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communication dated 5/7/2006, the respondent NO.3
university was pleased to grant approval to the
petitioners on contract basis from their initial date of
appointment as per the policy introduced by the State
Government in that respect. The petitioners have
placed on record the copy of approval on contract basis
dated 5/7/2006 with the compilation of the Writ
Petition.
It is the case of the petitioners that, the
above approval on contract basis was granted for the
period of 2 years, as such after completion of 2 years
period, the petitioners were again granted approval for
further 2 years on contract basis vide communication
dated 24/10/2007. The petitioners have placed on
record the copy of approval dated 24/10/2007 with the
compilation of the Writ Petition.
It is the case of the petitioners that,
pursuant to the above approvals granted to them on
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contract basis, they are continued in the respondent
NO.5 college and they are discharging their duties
sincerely and honestly. However, after the approval
letter dated 24/10/2007, the petitioners have not been
granted approval by the respondent NO.3 university
although they are in continuous service in respondent
NO.5 college.
6. It is further case of the petitioners that, the
State of Maharashtra as per the circular/resolutions
dated 31/5/2005 and 6/7/2007 had introduced a
policy that, the lecturers appointed by the duly
constituted selection committee be issued contractual
appointment initially for the period of two years and
thereafter for the period of 11 months. The petitioners
have placed on record the copies of said Govt.
Resolution/Circulars dated 31/5/2005 and 6/7/2007
with the compilation of the Writ Petition.
It is the case of the petitioners that, in view
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of their above appointment and approval on contractual
basis, the petitioners ought to have been given the
permanent approval, however same was not granted by
the respondent NO.3 university for the reasons best
known to it. It is the case of the petitioners that, the
Govt. of Maharashtra had introduced the policy
regarding issuance of appointment and approval on
contract basis in respect of lecturers working in the
senior college, as at the relevant time, the issue
regarding requisite qualification of NET/SET for being
appointed as lecturer in the senior college was pending
before the University Grants Commission (UGC). Hence,
as per the resolution/ circular issued by the State of
Maharashtra, the concerned universities used to grant
approval to the lecturers on contract basis who were
appointed by duly constituted selection committee,
however, were not possessing the qualification of
NET/SET. It is the case of the petitioners that, the
respondent NO.3 university has issued a letter dated
27/5/2009 to the principals of affiliated colleges,
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wherein it is informed that, the lecturers who are
possessing the qualification of M.Phil/Ph.D and who
are working in affiliated colleges since from the year
2004/05 onwards on contract basis shall not be
terminated on the ground that, there is no approval to
the appointment of such lecturers by the university till
the University Grants Commission takes final decision
regarding exemption from NET/SET. The petitioners
have placed on record the copy of letter dated
27/5/2009 issued by the respondent NO.3 university
with the compilation of the Writ Petition.
7. It is the case of the petitioners that, after
appointment of the petitioners through duly constituted
selection committee of respondent NO.3 university, the
petitioners had registered themselves for acquiring the
M.Phil qualification, as such all the petitioners have
acquired the M.Phil qualification while in service and
the certificates in that respect are already placed on
record. It is the case of the petitioners that, in view of
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above developments, the respondent NO.5 college by
proposal dated 27/1/2010 requested for permanent
approval to the petitioners in view of the fact that, the
petitioners have acquired the qualification of M.Phil in
the year 2009. The said proposal was forwarded by the
respondent No.5 college in view of the fact that, the
petitioners were/ are in continuous service in
respondent No.5 college and while in service, they have
acquired the M.Phil qualification. By the said proposal,
the respondent No.5 college had sought permanent
approval to the petitioner as they being eligible and
entitled for the same as per the relevant regulation of
U.G.C. It is the case of the petitioners that,
pursuant to the above proposal, the respondent
No.3 university surprisingly by communication
dated 10/5/2010 & subsequent communications
dated 30/09/2010 informed that, the petitioners
have acquired the qualification of M.Phil after the
completion of approval period on contract basis.
Therefore, the approval cannot be granted to the
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petitioners.
8. The learned counsel appearing for the
petitioners submits that, the aforesaid communications
issued by the respondent No.3 university are highly
illegal and same are against own policy of respondent
No.3 university and the policy introduced by the State
of Maharashtra, in as much as, the respondent No.5
college had forwarded the proposal of petitioners for
approval in view of the fact that, the petitioners are in
continuous service and have acquired the M.Phil
qualification while in service. Therefore, only because
the respondent NO.3 university did not grant further
approval to the petitioners, it does not mean that,
petitioners are not entitled for approval although they
completed the M.Phil qualification before the cut of date
fixed by the U.G.C. as per 3rd amendment regulation
2009. The learned counsel submitted that, the Division
Bench of this Court had an occasion to deal with the
cases of lecturers like the petitioners while considering
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the writ petition No.6929/2009 and the Division Bench
of this Court while dealing with the aforesaid writ
petition vide order dated 18/11/2009 has been pleased
to hold that, the lecturers who have completed M.Phil
by 11/07/2009 or earlier, while in service are exempted
from NET/SET for teaching at under graduation level.
The Division Bench further held that, the lecturers who
were recruited based on the amended regulation 2006
of the U.G.C. will have to be protected. As such, the
Division Bench of this Court pleased to grant "Rule" in
the Writ Petition and further pleased to grant interim
relief, thereby protected the services of the lecturers
who were appointed during the subsistence of the 2nd
amendment regulation issued by the U.G.C. The
learned counsel invited our attention to the order dated
18/11/2009 passed by the Division Bench of this Court
in Writ Petition No.9629/2009 with the compilation of
this Petition.
9. The learned counsel submitted that, the
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issue involved in the present writ petition is no longer
res integra in the light of the Division Bench judgment
of Bombay High Court bench at Nagpur in Writ Petition
NO.1489 of 2010 vide judgment and order dated
01/07/2010. The learned counsel invited our attention
to the judgment and order dated 01/07/2010 passed in
Writ Petition No.1489/2010. The learned counsel
submitted that, the respondent No.5 college wherein
they are working is a permanent no grant in aid college,
as such, in view of the fact that, the respondent NO.3
university has not granted the approval to the services
of the petitioners, the petitioners are not getting their
regular salary as well as consequential benefits. The
learned counsel submitted that, moreover, in view of
the fact that, the respondent NO.3 university has not
granted approval to the petitioners, there is possibility
of termination of the services of the petitioners. Hence,
the interference at the hands of this Court in exercise
of its extra ordinary jurisdiction is called for in the facts
and circumstances of the present case. The learned
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counsel further submitted that, the impugned action of
the respondent NO.3 university to reject the approval to
the petitioners is discriminatory and arbitrary, as such
violates the fundamental rights of petitioners
guaranteed under article 14 and 16 of the Constitution
of India. Moreover, it is the fact that, the respondent
NO.3 university has granted approval to various
lecturers in Latur district who are similarly situated
with the petitioners. Therefore, also the appropriate
writ/direction deserves to be issued to the respondent
NO.3 university, directing it to grant approval to the
petitioners' services as lecturers.
10. The learned counsel submitted that. the
impugned inaction on the part of respondent NO.3
university to grant approval to the petitioners is
contrary to the general directions issued by the
university dated 12/10/2011 to all the affiliated
colleges. The directions contained in said
communication states that, the lecturers who have
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acquired NET/SET, Ph.D and M.Phil qualification
before 11/7/2009, should be granted approval on
permanent basis. Hence, the impugned action of the
respondent NO.3, thereby refusing to grant approval to
the petitioners' services as lecturers deserves to be
quashed and set aside in the interest of justice and
equity. The learned counsel further submitted that, in
view of above stated facts and circumstances, it is
apparent that, the impugned inaction on the part of
respondent No.3 university in granting approval to the
petitioners is highly illegal and improper. Moreover, in
view of the regulation issued by U.G.C. and the policy
adopted by the State of Maharashtra as well as by the
respondent NO.3 university, the petitioners are entitled
for permanent approval from the date they acquired the
qualification of M.Phil. Therefore, the learned counsel
appearing for the petitioners submits that, the petition
deserves to be allowed.
11. The learned counsel further submitted that,
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the petitioners are in continuous service in respondent
NO.5 college since last more than 10 years, therefore,
in view of the fact that, the petitioners are entitled for
permanent approval, the respondent NO.3 deserves to
be directed to grant permanent approval to the
petitioners.
12.
The learned counsel appearing for
Respondent No.3, relying upon the averments in the
affidavit in reply, made following submissions.
The respondent NO.3-university is
established under the Maharashtra Universities Act,
1994. The provisions of Maharashtra Universities Act,
Rules and Statues framed there under are applicable to
the respondent NO.3 university. The respondent NO.3
university is bound to implement the policy decision
taken by the Respondent No.1 and UGC. The learned
counsel submitted that, the issue involved in this
Petition is whether NET/SET examination is mandatory
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for securing appointment as Assistant Professor in
respondent No. 4 & 5 colleges which are affiliated to
respondent NO.3 university. It is submitted that, the
University Grant Commission (hereinafter referred to as
"UGC") was established in November 1956 as a
statutory body for coordination, determination and
maintenance of standards of University Education in
India. The learned counsel submitted that, the UGC
mandate includes a) Promoting and coordinating
University Education; b) Determining & maintaining
standards of teaching examination and research
Universities; c) Framing regulations on minimum
standards of education; d) Monitoring development in
the field of Colleges and University Education,
disbursing grant to the University and Colleges,
e) Serving as a vital link between the Union and State
Govt. and Institutions of higher learning and
f) Advancing Central and State Govt. an the measures
necessary far improvement and University Education.
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13. The learned counsel submitted that, the
UGC was entrusted with the task of co-ordination,
formation and maintenance of the Standard of
University education. It engaged itself. in, among other
things, framing regulations on minimum standard of
education, determining standards, of teaching,
examination and research in Universities, monitoring
development in the field of colleges and University
Education, disbursing Grants to Universities and
Colleges and setting up common facilities, services and
programmes far a group of University in the form of
Inter University centers. The learned counsel submitted
that, the Committee formed by UGC in 1983 on revision
of pay scales of teachers in the universities and colleges
under the Chairmanship of Prof. R C Mehrotra
recommended for the post of Lecturer (i) qualifying at
the National test conducted for the purpose by UGC or
any other agency approved by UGC and (ii) Master's
degree with at least 55% marks or its equivalent grade.
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The learned counsel submitted that, the
qualifications should not be relaxed even far candidates
possessing M.Phil/Ph.D. at the time of recruitment.
The Mehrotra Committee also found that, the
stipulation of M.Phil/Ph.D. as an essential qualification
for Lecturers. Neither the same has been followed
faithfully nor contributed to the raising of teaching and
research standards. In fact, it was of the view that, if at
all, it had led to the dilution of research standards on
account of the rush to get a research degree in the
shortest possible time. In view of the diversity of
standards among universities, the Mehrotra Committee
recommended that passing a national qualification
examination before recruitment be made an essential
pre-condition. The National Commission of Teachers on
Higher Education headed by Prof. Rais Ahmed observed
that, it is extremely important to make a rigorous merit
based selection for the entry level of teaching
profession.
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14. The learned counsel submitted that, the
National Policy on Education, 1986, it was suggested
that, "the teachers will be recruited on the basis of a
common qualifying test, the details of which will be
formulated by UGC. Efforts will be made to move
towards the objective of making recruitment of teachers
on all India basis in consultation with the State
Governments". The learned counsel submitted that,
with a view to working out the modalities for the
conduct of such a test, the Commission had
constituted a Committee, which evolved strategies for
the conduct of a national level eligibility test (or the
recruitment of teachers in universities and colleges.
Consequently, the Government of India, through a
notification in 1988 entrusted the task of conducting
the eligibility test for lectureship to UGC. The learned
counsel submitted that, the National Educational
Testing Bureau of University Grants Commission (UGC)
conducts National Eligibility Test (NET) to determine
eligibility for lectureship and for award of Junior
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Research Fellowship (JRF) for Indian Nationals in order
to ensure minimum standards for entrance in the
teaching profession and research. The test is conducted
twice in a year, generally in the month of June and
December in various subjects including History &
Hindi. It was felt that, eligibility test at the national
level may not be completely able to represent the
subjects which are original in their character. Moreover
the demand for enabling the candidate, who appears
for the test in their own mother-tong, was also being
made. The State Government and Union Territory were
therefore given option of conducting their own test for
eligibility for lectureship at the State level and it is
called as State Entrance Test (SET). State level test is
based on the pattern of the NET conducted by UGC.
SET is being conducted in the various States including
the State of Maharashtra. The UGC from time to time
issued various regulations thereby it was made
mandatory for passing of NET/SET examination for
appointment as teacher in university & affiliated
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colleges. The learned counsel submitted that, the UGC
(minimum qualifications required for the appointment
& career advancement of teachers in universities &
institutions affiliated to it) (3rd Amendment) Regulation
2009, which is published in the Gazette of India on
11/07/2009 contemplates that, for the appointment of
teacher in Universities & Institutions affiliated to it
NET/SET is compulsory. As such passing of NET/SET
is mandatory condition applicable to petitioners also.
The Respondent No.3 has placed on record the copy of
UGC (minimum qualifications required for the
appointment & career advancement of teachers in
universities & institutions affiliated to it) (3rd
Amendment) Regulation, 2009. The learned counsel
submitted that, as per Sub Clause 34 of Section 2 of
Maharashtra Universities Act teacher includes
Assistant Professor.
15. The learned counsel further submitted that,
the UGC from time to time amended the provisions in
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respect of NET/ SET by introducing necessary
amendments. As per Clause 2 of UGC (minimum
qualifications required for the appointment and career
advancement of teachers in universities and
institutions affiliated to it, Regulation 2000 UGC
prohibits appointment to a teaching post in university
or in any of institutions including constituent or
affiliated colleges recognized under clause (f) of Section
2 of the University Grants Commission Act, 1956 or in
any institution deemed to be a university under Section
3 of the said Act in a subject if he/she does not fulfill
the requirements as to the qualifications for the
appropriate subjects as provided in the regulation.
Section 14 of University Grants Commission Act 1956
further contemplates serious consequences of failure of
universities to comply with recommendations of the
Commission. The learned counsel submitted that, as
per Clause 1.3.3. of UGC (minimum qualifications
required for the appointment and career advancement
of teachers in universities and institutions affiliated to
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it, Regulation 2000 made it compulsory passing of
NET/SET for for appointment as Lecture even for
candidate having Ph.D degree. However the candidates
who have completed M.Phill degree or have submitted
Ph.D. thesis in the concerned subject up to 31 st
December, 1993 are exempted from appearing in the
Net examination. The said UGC (minimum
qualifications required for the appointment and career
advancement of teachers in universities and
institutions affiliated to it), Regulation 2000 amended
on 31/07/2002. The said amended regulation namely
UGC (minimum qualifications required for the
appointment and career advancement of teachers in
universities and institutions affiliated to it) (1st
Amendment), Regulation 2002, extended date of
submission of Ph.D. thesis from 31st December, 1993 to
31st December, 2002.
16. The learned counsel submitted that, the 2nd
Amendment came to be introduced by UGC on
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14/06/2006. By this amendment NET shall remain
compulsory requirement for appointment as Lecture
even for those with Post Graduate Degree. However, the
candidates having Ph.D degree in the concerned
subject are exempted from NET for PG level and UG
level teaching. The candidates having M. Phill Degree in
the concerned subject are exempted from NET for UG
level teaching only. The learned counsel further
submitted that, the 3rd amendment introduced by UGC
on 11th July, 2009. By this amendment NET shall
remain minimum eligibility condition for requirement
and appointment as Lecturer in Universities/
Colleges/Institutions. Provided, however, that
candidates, who are or have been awarded Ph.D.
Degree in compliance of the "University Grants
Commission (minimum standards and procedure for
award of Ph.D. Degree), Regulation 2009, shall be
exempted from the requirement of the minimum
eligibility condition of NET/SET for recruitment and
appointment of Assistant Professor or equivalent
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positions in Universities/Colleges/Institutions. The
learned counsel further submitted that, the State of
Maharashtra as per Government Resolution dated 25 th
July, 2002 introduced appointments of teaching posts
on contract basis. As per clause 2, it has been
specifically stated that, the appointee should be passed
Net/Set examination. But, from the subject, which
Net/Set candidate is not available, can be appointed on
contract basis. The clause 3 of the said Government
Resolution contemplates that, the candidate should be
registered with the local employment office and the list
should be called from the local Employment Exchange
Office and selection should be made through the
Selection Committee. It has been specifically
contemplated that, the candidate should be appointed
on contract basis for maximum period of two years or
till the regular candidate made available from the
regular selection process, whichever is earlier and till
that time, the candidate appointed on contract basis
should be continued. It has been specifically stated in
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the Clause 4 that, the persons, those are already
appointed on contract basis, have no right for regular
appointment. The Respondent No.3 has placed on
record the copy of the Government Resolution dated
25th July, 2002, introducing appointments on contract
basis on teaching posts with the compilation of the
Affidavit in Reply.
17. The learned counsel submitted that, the
Deputy Secretary, Higher and Technical Education
Department, Maharashtra State issued communication
dated 07.01.2005. By this communication, it has been
clarified that, the candidates, who have been appointed
in pursuance to the Govt. resolutions dated 25.07.2002
and 19.07.2003 and appointed on contract basis,
should be given priority as per the instructions issued
on 01.09.2004 by the Higher and Technical Education
Department. This communication is in respect of those
appointments made in pursuance to the Govt.
resolution dated 25.07.2002 and 19.07.2003. The
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communication dated 01.09.2004 further states that,
those colleges, who have taken approval of
advertisement from the University and appointed
candidates as per the Maharashtra Universities Act,
1994 through Selection Committee, as per the norms,
such candidates, having requisite qualifications,
appointed on contract basis, are not required again to
go through the selection process and their
appointments should be regularized. The learned
counsel submitted that, these candidates should be
treated for the appointment on probation period, for the
period of 2 years from the date of their respective
appointments and if their service record is satisfactory,
their services, should be regularized. The learned
counsel submitted that, by this communication dated
07.01.2005, there was no concession or exception given
to the candidates, who are not holding Net/Set
examination. The respondent no.3 has placed on record
the copy of communication dated 07.01.2005 with the
compilation of the Affidavit in Reply. The learned
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counsel further submitted that, the State of
Maharashtra has issued another communication dated
31.05.2005 in relations to the re-appointment of
candidates, who have been appointed on contract
basis, in pursuance to the Govt. resolution dated
25.02.2002. By this communication, it has been
clarified that, the appointment made on contract basis
should be for only two years, or till the candidate duly
qualified is appointed through the Selection Committee
duly constituted, whichever is earlier. It has been
further clarified that, thereafter, all these appointments
stands terminated. In short, the appointment on the
contract basis is at the most should be continued for
further two years or in other words the scheme for
appointing candidates on contract basis is continued
for further two years from 31.05.2005, apart from other
conditions, which have been stated in Clause, 2 3, 4
and 5. The learned counsel appearing for respondent
No.3 invited our attention to the copy of the
communication dated 31.05.2005 issued by the
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Additional Secretary, Higher and Technical Education
Dept. State of Maharashtra, which is placed on record
with the affidavit in reply.
18. The learned counsel submitted that, the
scheme for appointing candidates on contract basis is
expired on 31.05.2007 i.e. after the period of two years,
as per the communication dated 31.05.2005. The
Additional Secretary, Higher and Technical Education
Department, State of Maharashtra issued another
communication dated 06.07.2007, granting further
approval for re-appointments of such candidates for
further 11 months. The learned counsel appearing for
respondent no.3 invited our attention to the copy of the
communication dated 06.07.2007 issued by the
Additional Secretary Higher and Technical Education
Dept. State of Maharashtra, which is placed on record
with the Affidavit in Reply. The learned counsel further
submitted that, in view of the above referred
communications, the appointments made on the
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contractual basis finally came to an end as per
communication dated 06.07.2007. As per said
communication dated 06.07.2007, further 11 months
period has been given for reappointment/ continuation
to the candidates on contract basis, meaning thereby,
the scheme would be automatically come to an end
thereafter. The learned counsel further submitted that,
while deciding the issue involved in this matter, this
Court is required to consider the above referred various
Govt. resolutions, regulations and communications
issued by the UGC and State of Maharashtra from time
to time. In short, the basic qualification for the
appointments on the teaching post, passing of Net/Set
examination is compulsory. The learned counsel
submitted that, none of the petitioner is qualified for
the appointment on permanent or on regular basis on
teaching post, as the petitioners are not holding basic
required qualification of passing of Net/Set
examination. The learned counsel submitted that, even
as per first amendment of Regulation, 2002, the date of
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submission of Ph.D thesis was extended from
31.12.1993 to 31.12.2002. The candidates, who have
completed M.Phil degree or have submitted Ph.D. thesis
in the concerned subject up to 31.12.1993 was
exempted from appearing in the Net/set examination.
The 2nd Amendment came to be introduced by UGC on
14/06/2006. By this amendment NET shall remain
compulsory requirement for appointment as Lecture
even for those with Post Graduate Degree. However, the
candidates having Ph.D degree in the concerned
subject are exempted from NET for PG level and UG
level teaching. The third amendment introduced by the
UGC on 11.07.2009 also contemplates that, passing of
Net examination is similar eligibility condition for the
requirement of appointment as lecturer in the
University, Colleges and Institutions; provided that,
though the candidates, who are possessing Ph.D.
degree in compliance with the UGC (Minimum
Standard Procedure for awarding Ph.D. degree)
Regulation Act, 2009 shall be exempted from the
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requirement of minimum eligibility condition of passing
of Net/Set examination for the recruitment or
appointment as Assistant Professor or equivalent posts
in the Universities, Colleges and Institutions. The
learned counsel further submitted that, petitioner NO.1
acquired M.Phill qualification on 22.06.2009, the
Petitioner NO.-2 acquired M.Phil qualification on
30.06.2009 and the petitioner no.3 acquired M.Phil
qualification on 30.03.2009. According to the UGC
norms, the regulation and resolutions issued by the
State of Maharashtra from time to time, the petitioners
are not entitled for approval or continuation on the post
of teaching, in view of the fact that, the scheme for
appointing candidates on contract basis came to an
end as per the communication dated 06.07.2007. As
per said communication, the scheme came to an end on
or about June 2008. All these petitioners have acquired
their M.Phill qualification after June, 2008. Therefore,
they have not been given approval. In view of the
communication dated 06.07.2007, the services of the
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petitioners impliedly stands terminated or they are not
eligible to continue in service/contract basis after the
completion of re-appointment period i.e. 11 months.
Therefore, there is no question of grant of any approval
or continuation by the Respondent No.3 to the
petitioners.
19.
The learned counsel submitted that, the
petitioner No.1 came to be appointed on 26.07.2002 on
the contract basis, the petitioner NO.2 is appointed on
30.08.2001 and the petitioner NO.3 is appointed on
10.08.2001. All these candidates are not having
required qualification of passing of Net/Set
examination. The petitioner NO.1 has acquired M.Phill
degree, subsequently, on 22.06.2009 and petitioner
Nos. 2 and 3 on 30.06.2009. The learned counsel
further submitted that, according to the UGC
regulations, Govt. resolutions and communications
issued from time to time, even they cannot get any
benefit of continuation based on subsequent
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acquisition of M.Phil degree on 22.06.2009 and on
30.06.2009. The learned counsel submitted that, the
respondent - University granted approval to the
appointments of the petitioners on contractual basis as
per communication dated 4/5 July, 2006. This
approval itself was granted stating the period of only
two years from the date of joining. All the petitioners
joined the services on contractual basis on 27.01.2004
and their approval is upto 26.01.2006 only. The
Respondent - University thereafter, as per the
communication dated 23/24 of Oct. 2007, further
communicated the approval of the petitioners for
further two years from the date of completion of earlier
two years period i.e. from 26.01.2006. As such, the
approval for the appointment on contractual basis is
granted till 26.01.2008 only. The learned counsel
submitted that, the scheme for re-appointing the
candidate on the contractual basis came to an end on
or about June, 2008 as per the communication dated
06.07.2007. The learned counsel submitted that, after
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completion of approval period upto 26.01.2008, there
was no proposal from the appointing authority for the
continuation or re-appointment of the petitioners on
contractual basis, apart from the fact that, the scheme
for appointing persons or candidate on contract basis
came to an end on June, 2008. The learned counsel
submitted that, even for the sake of argument, if we
consider that, the appointing authority has submitted
proposal for the continuation or re-appointment of
petitioners for 11 months period after 26.01.2008, the
petitioners would have been continued till 26.12.2008
i.e. for 11 months, as per communication dated
06.07.2007, apart from the fact that, the petitioners
have acquired M.Phill qualification on 22.06.2009 and
30.06.2009 respectively, the acquisition of M.Phill is
beyond the period of contractual appointment.
20. The learned counsel submitted that, the
respondent - University issued communication on
27.05.2009 to all the principals of affiliated colleges in
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view of the fact that, the certain proposals have been
forwarded to the UGC for relaxing the condition of
passing of Net/Set examination. The proposal for the
relaxation of condition of passing of Net/Set
examination has been turned down by the UGC in view
of order dated 30.03.2010 issued by the Joint
Secretary, Human Recourses Department, Union of
India. The learned counsel invited our attention to the
copy of order dated 30.03.2010 issued by the Joint
Secretary, Human Resourses Dept. Union of India from
the compilation of the Affidavit in Reply.
The learned counsel appearing for the
Respondent No.3 submitted that, in view of the order
dated 30.03.2010 issued by the Joint Secretary,
Human Recourses Department, Union of India, the
respondent University issued communication on
27/28th January, 2011, referring to the earlier
communication dated 27.05.2009. By the said
communication, the respondent University has taken
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decision and communicated it to all the principals of
affiliated colleges that, the communication dated
27.05.2009 stands cancelled and the Respondent
University will not grant approval to the candidates,
appointed on contractual basis. The learned counsel
appearing for Respondent No.3 invited our attention to
the copy of communication dated 27/28 of January,
2001 issued by the respondent - University, which is
placed on record with the compilation of the Affidavit in
Reply. The learned counsel appearing for the
Respondent No.3 therefore, submits that, there is no
merit in the Writ Petition and same may kindly be
dismissed.
21. The learned counsel appearing for
Respondent No.6 invited our attention to the public
notice dated 12th October, 2012 issued by the U.G.C.
wherein, it has been clarified that, the resolution of the
Commission in 471st and 472nd meeting of the UGC
held on 12.08.2010 and 27.09.2010, has not been
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accepted by the Central Government, and the same
cannot be implemented.
22. We have heard the learned counsel
appearing for the parties at length. With their able
assistance, we have perused the pleadings in the
Petition, annexures thereto, affidavit in reply filed by
Respondent No.3 and documents placed on record by
other respondents. Upon perusal of the pleadings in the
Petition, it appears that, initially the petitioners were
appointed on the post of lecturers in their respective
subjects and their proposal was forwarded with
Respondent No.3- University for approval. It appears
that, in the year 2009, the petitioners have completed
their M.Phil course and at the relevant time of their
appointments, the petitioners were possessing the
Master's Degree in their respective subjects. The
University by communication dated 19th March, 2004
was pleased to grant approval to the services of the
petitioners on clock hour basis for the academic year
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2003-2004. According to the petitioners, they were
appointed on clear vacant and permanent posts.
However, it is the contention of the learned counsel for
the respondent no.3 that, the appointment of the
petitioners were on contractual basis for a particular
period. It further appears that, on 05.07.2006,
Respondent No.3 - University was pleased to grant
approval to the petitioners on contract basis. Thereafter
also the approval was granted for two years vide
communication dated 24th October, 2007. According to
the petitioners, they are discharging their duties
continuously till date.
It appears that, the advertisement was
issued on 4th August, 2001 inviting applications for
filling in the posts of lecturers. In pursuant to the said
advertisement, the petitioners did apply for the
appointment on the post of lecturers in their respective
subjects and accordingly, they were appointed,
however, on contractual basis for a particular period,
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and therefore, the Respondent No.3 - University also
granted approval to their services for a particular
period. It is the contention of the petitioners that, since
they have completed M.Phil in the year 2009, and
therefore, the University should have granted
permanent approval to their services. It appears from
the material placed on record i.e. the copy of the
advertisement at Exhibit-B page 45 of the compilation
of the Petition that, the advertisement was issued by
Respondent No.5 college, wherein the posts were
advertised, however, note given in the said
advertisement mentions that, eligible candidates for the
subjects mentioned in the said advertisement will be
given appointment as per the Rules/Regulations of the
U.G.C. and the University. Therefore, it follows from the
said note given in the advertisement, and also it is not
in dispute that, the appointment of the petitioners, and
also service conditions are governed by the Rules, and
Regulations framed by the U.G.C. and University, and
amendment brought to the said Regulations from time
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to time.
23. Upon perusal of the initial appointment
orders of the petitioners, it appears that, the
appointment orders are issued in the pay scale,
however, purely on temporary basis for the academic
year. These appointment orders are issued to the
petitioners for one year from the academic year 2001 to
2003. Thereafter, again it appears that, the
advertisement was given on 07.11.2003. In the said
advertisement also, it was mentioned that, the
appointments will be made keeping in view the
regulations of the U.G.C. and University. The
appointment orders in pursuant to the said
advertisement were also for the academic year
2003-2004. The petitioners have claimed that, when
they were initially appointed, those appointments were
in pursuant to the advertisement and by properly
constituted Selection Committee. Therefore, it becomes
relevant to find out what was the minimum
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qualifications required for the appointment to the post
of lecturer at the relevant time. In that respect, it is apt
to reproduce hereinbelow the relevant gazette
publication issued by the Secretary, U.G.C. in the
Gazette of India on 11th July, 2009, which reads thus :-
"UGC (MINIMUM QUALIFICATIONS REQUIRED FOR THE
APPOINTMENT AND CAREER ADVANCEMENT OF
TEACHERS IN UNIVERSITIES AND INSTITUTIONS
AFFILIATED TO IT)
rd
(3 AMENDMENT), REGULATION 2009
F.1-1/2002 (PS) Exemp. - In exercise of the powers
conferred by clause (e) & (g) of sub-section (1) of Section
26 read with section 14 of University Grants Commission
Act 1956 (3 of 1956), and in supersession of the
University Grants Commission (Minimum Qualifications
required for the appointment and Career Advancement of
teachers in Universities and Institutions Affiliated to it) (1 st
Amendment), Regulation, 2002 dated 31st July, 2002 and
University Grants Commission (Minimum Qualifications
required for the appointment and Career Advancement of
teachers in Universities and Institutions affiliated to it) (2 nd
Amendment), Regulation 2006 dated 14.06.2006, the
University Grants Commission hereby makes the following
Regulations to amend the University Grants Commission
(Minimum Qualifications required for the appointment and
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Career Advancement of teachers in Universities and
Institutions affiliated to it) Regulation, 2000, namely:-
Short Title, Application and Commencement:
1. These regulations may be called University Grants
Commission (Minimum qualifications required for the
appointment and Career Advancement of teachers in
Universities and Institutions affiliated to it) (3rd
Amendment), Regulation, 2009.
2. They shall apply to every University established or
incorporated by or under a Central Act, Provincial
Act or a State Act, every Institution including a
constituent or an affiliated college recognized by the
Commission, in consultation with the University
concerned under clause (f) of Section 2 of the
University Grants Commission Act 1956, and every
Institution deemed to be a University under section
3 of the said Act.
3. They shall come into force with effect from the date
of their publication in the Gazette of India.
4. In the ANNEXURE to the University Grants
Commission (Minimum Qualifications required for
the appointment and Career Advancement of
teachers in Universities and Institutions affiliated to
it) Regulation, 2000, the following was provided in
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the Note to Regulation 1.3.3, 1.4.3, 1.5.3. and
1.6.1:
"NET shall remain the compulsory requirement for
appointment as Lecturer even for candidates having
Ph.D. Degree. However, the candidates who have
completed M.Phil degree or have submitted Ph.D.
Thesis in the concerned subject upto 31st December,
1993 are exempted from appearing in the NET
examination."
The said Note to Regulation 1.3.3, 1.4.3, 1.5.3 and
1.6.1 was substituted by the following para, vide
University Grants Commission (Minimum
Qualifications required for the appointment and
Career Advancement of teachers in Universities and
Institutions affiliated to it) (1st Amendment),
Regulation 2002:
"NET shall remain compulsory requirement for
appointment as Lecturer even for candidates having
Ph.D. Degree. However, the candidates who have
completed M.Phil. Degree by 31st December, 1993 or
have submitted Ph.D. thesis to the University in the
concerned subject on or before 31 st December, 2002
are exempted from appearing in the NET
examination. In case such candidates fail to obtain
Ph.D. Degree, they shall have to pass the NET
examination.
5336.12WP
Further, the above provision brought in to effect by
the University Grants Commission (Minimum
Qualifications required for the appoitment and
Career Advancement of teachers in Universities and
Institutions affiliated to it) (1st Amendment),
Regulation, 2002, was further substituted by the
following provision of the University Grants
Commission (Minimum Qualifications required for
the
appointment and Career
teachers in Universities and Institutions affiliated to
Advancement of
it) (2nd Amendment), Regulation 2006:
"NET shall remain compulsory requirement for
appointment as Lecturer even for those with Post
Graduate Degree. However, the candidates having
Ph.D. Degree in the concerned subject are exempted
from NET for PG level and UG level teaching. The
candidates having M.Phil. Degree in the concerned
subject are exempted from NET for UG level
teaching only."
Now, the above provision shall be substituted by the
following paragraph:
"NET/SET shall remain the minimum eligibility
condition for recruitment and appointment of
Lecturers in Universities/Colleges/Institutions.
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Provided, however, that candidates, who are or have
been awarded Ph.D. Degree in compliance of the
"University Grants Commission (minimum standards
and procedure for award of Ph.D. Degree),
Regulation 2009, shall be exempted from the
requirement of the minimum eligibility condition of
NET / SLET for recruitment and appointment of
Assistant Professor or equivalent positions in
Universities /Colleges / Institutions."
ig R.K.CHAUHAN
Secy.U.G.C."
(Underlines added)
24. Upon careful perusal of the contents of the
aforementioned requirement of minimum qualification
qua the petitioners, since according to them their
appointments were from the year 2001 onwards, the
clause (4) of the aforementioned minimum qualification
would be relevant. The Regulations 2000 as mentioned
in the clause of the aforementioned Gazette publication,
it is mentioned that, NET shall remain the compulsory
requirement for appointment as Lecturer even for
candidates having Ph.D. degree. However, the
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candidates who have completed M.Phil degree or have
submitted Ph.D. thesis in the concerned subject upto
31st December, 1993 are exempted from appearing in
the NET examination. If the further Regulation, 2002
are perused, in that also the candidates who have
completed the M.Phil by 31st December, 1993 were
exempted from appearing passing NET examination.
Thereafter, there was second amendment and as per
the Regulation 2006, NET shall remain compulsory
requirement for appointment as Lecturer even for those
with Post Graduate Degree. However, the candidates
having Ph.D. Degree in the concerned subject are
exempted from NET for PG level and UG level teaching.
If the petitioners' cases are carefully considered in the
light of the aforementioned relevant clause of the
Regulations 2000, 2002 or 2006, the petitioners were
not possessing the M.Phil qualification at the relevant
time of their appointments, though they were
possessing Master's degree in their respective subjects.
The relevant date for considering the qualification of the
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petitioners for the appointment on the post of Lecturers
was governed by Regulations 2000 and 2002 as the
petitioners claimed that, their selection was by properly
constituted Selection Committee. At the relevant time,
admittedly, the petitioners neither completed M.Phil,
nor they were having Ph.D. degree. As per information
placed on record by the petitioners themselves, first
time in the year 2009, they completed M.Phil.
Therefore, the petitioners case is not covered by the
judgment of the Bombay High Court, bench at Nagpur
in the case of Sudhir S/o Sharadrao Hunge and
another V/s The State of Maharashtra and others in
Writ Petition No. 1489 of 2010, decided on 02.07.2010.
In the facts of that case, the Division bench of the
Bombay High Court bench at Nagpur was considering
all together different fact situation, in as much as, soon
before 3rd amendment Regulation 2009, the petitioners
in that case were possessing M.Phil qualification, and
in pursuant to the advertisement they did apply for the
post of lecturers, and at the time of actual issuance of
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appointment letters, the Regulations came into force
making the NET qualification compulsory for the
appointment of lecturers. Therefore, the Division Bench
keeping in view the facts of that case, held that, the
eligibility of the petitioners would relate back to the
date of first advertisement and the new
conditions/qualifications introduced by the Regulation
2009 would not apply in the cases of those petitioners,
who were already fulfilling the M.Phil qualification on
the date of advertisement and filing application for
appointment on the post of lecturers.
25. The Respondent No.3 has brought on
record, and which is not disputed by the petitioners
that, as per the first amendment of Regulation 2002,
the date for submission of Ph.D. thesis was extended
from 31st December, 1993 to 31st December, 2002.
The candidates, who have completed M.Phil degree or
have submitted Ph.D. thesis in the concerned subject
upto 31.12.1993 were exempted from appearing in the
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Net/Set examination. Even by subsequent 2nd
amendment to Regulations, the same position
continued and those who are having Ph.D. degree and
acquired M.Phil before the cut of date mentioned in the
said Regulations were granted exemption from passing
NET examination. As already observed, at the relevant
time the petitioners were not possessing M.Phil before
cut of date prescribed in the regulations, at the time of
their appointments. All the petitioners have acquired
their M.Phil qualification after June, 2008. Upon
perusal of the documents placed on record, it is clearly
seen that, the petitioners were appointed on contract
basis. The petitioner no.1 was appointed on 26th July,
2002, the petitioner no.2 was appointed on 30th
August, 2001 and the petitioner no.3 was appointed on
3rd August, 2001, and at the relevant time, they were
not having required qualification of passing NET/SET
examination. It is also brought on record by
Respondent No.3 that, the approval for appointment on
contractual basis is granted to the appointments of the
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petitioners till 26th January, 2008, and the scheme for
appointing the candidates on the contractual basis
came to an end on or about June, 2008. However, it
appears that, Respondent - college continued the
petitioners as lecturers as contended by the petitioners
in the Petition. The proposal of the petitioners for the
continuation for eleven months was submitted,
however, the University has declined to grant approval
since according to the learned counsel appearing for
the Respondent - University, the scheme for
reappointing the candidates on contractual basis came
to an end on or about June, 2008.
26. We have also considered the submission of
the learned counsel appearing for the petitioners that,
those candidates who have completed M.Phil degree on
or before 10th July, 2009, shall remain exempted from
the requirement of NET for the purpose of appointment
as Lecturer/Assistant Professor as resolved by the
Commission in 471st and 472nd meeting of the UGC
5336.12WP
held on 12.08.2010 and 27.09.2010. However, the said
suggestion of the Commission has not been accepted by
the Central Government. Therefore, if case of the
petitioners is considered in its entirety, at the relevant
time, when the petitioners were appointed, they were
not possessing the requisite qualification prescribed
under the relevant Regulations issued by the U.G.C.
governing the field during the relevant period. The
contention of the learned counsel appearing for the
petitioners that, the petitioners have completed more
than 10 years service, and therefore, the University
may be directed to grant approval to their services,
cannot be accepted, in the light of the discussion in
foregoing paragraphs. It is true that, the petitioners
have rendered more than 10 years service, however,
once there was communication from the Government of
Maharashtra to the University and all the colleges not
to continue the contractual appointment any further
from June, 2008, merely because the Respondent -
College contrary to the instructions issued by the
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University and Government of Maharashtra continued
the petitioners on the post of lecturers, cannot be
ground to direct Respondent No.3 to grant approval to
the services of the petitioners. In that view of the
matter, we are unable to persuade ourselves to issue
directions to Respondent No.3, to grant permanent
approval to the petitioners' services.
27. However, the Hon'ble Supreme Court in
para 53 of the judgment in the case of Secretary, State
of Karnataka and others V/s Umadevi (3) and
others1 has observed thus :-
"53. One aspect needs to be clarified. There may
be cases where irregular appointments (not illegal
appointments) as explained in S.V. Narayanappa,
(supra), R.N. Nanjundappa (supra), and B.N.
Nagarajan (supra), and referred to in paragraph
15 above, of duly qualified persons in duly
sanctioned vacant posts might have been made
and the employees have continued to work for ten
1 (2006) 4 SCC 1
5336.12WP
years or more but without the intervention of
orders of courts or of tribunals. The question of
regularization of the services of such employees
may have to be considered on merits in the light
of the principles settled by this Court in the cases
abovereferred to and in the light of this judgment.
In that context, the Union of India, the State
Governments and their instrumentalities should
take steps to regularize as a one time measure,
the services of such irregularly appointed, who
have worked for ten years or more in duly
sanctioned posts but not under cover of orders of
courts or of tribunals and should further ensure
that regular recruitments are undertaken to fill
those vacant sanctioned posts that require to be
filled up, in cases where temporary employees or
daily wagers are being now employed. The process
must be set in motion within six months from this
date. We also clarify that regularization, if any
already made, but not sub judice, need not be
reopened based on this judgment, but there
should be no further bypassing of the
constitutional requirement and regularizing or
making permanent, those not duly appointed as
per the constitutional scheme."
5336.12WP
28. In the light of the discussion in foregoing
paras 2 to 26, the Petition fails and same stands
rejected. Rule stands discharged.
However, we make it clear that, rejection of
this Petition cannot be construed as an impediment, in
case, the Respondents wish to take sympathetic view,
keeping in view the length of service of the petitioners,
so as to grant approval to their services as the special
case or one time measure, which can be done by the
Respondents keeping in view the observations of the
Hon'ble Supreme Court in para 53 of the judgment in
the case of Secretary, State of Karnataka and others
(supra).
Sd/- Sd/-
( A. M. BADAR, J. ) (S.S. SHINDE, J.)
...
SGA/-
