Bombay High Court
Vijay Digambar Hande vs The State Of Maharashtra And Ors on 29 October, 2015
Bench: S.S. Shinde
4787.12WP
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4787 OF 2012
Vijay S/o Digambar Hande
Age : 34 years, Occ : Service,
R/o Lecturer Colony, Ausa,
Tq. Ausa, Dist. Latur.
..PETITIONER
-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. Sharadopasak Shikshan Sanstha
Aurad Shahjani, Tq. Nilanga,
Dist. Latur, through its Secretary.
5. Master Dinanath Mangeshkar Senior College,
Aurad Shahjani, Tq. Nilanga,
Dist. Latur
Through its Principal
..RESPONDENTS
...
Advocate for Petitioners : Mr. A.V. Patil
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 Nos.4 and 5 : Mr. V.D. Gunale
...
CORAM : S.S. SHINDE &
A. M. BADAR, JJ.
::: Uploaded on - 29/10/2015 ::: Downloaded on - 31/10/2015 00:00:55 :::
4787.12WP
2
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 :-
"C) By issuing appropriate writ, order or
directions, the impugned communication dated
02.03.2012 issued by respondent no.3 University be
quashed and set aside. Consequently, the
appointment of petitioner be approved from his
initial date of appointment and he be paid arrears of
salary as well as regular salary admissible for the
post of Director of Physical Education and for that
purpose, necessary directions may be issued."
3. It is the case of the petitioner that, the
petitioner possesses the qualification of M.A., M.P.Ed.
in first class. The petitioner has also qualified the fitness
test conducted by U.G.C. The petitioner has participated in
national level volleyball competition, wherein he was
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conferred with Silver medal. Similarly, he had participated
in Ashwamegh Inter University Volleyball tournament,
wherein he was conferred with Gold medal. The petitioner
has worked as a Coach of Volleyball tournaments at
National as well as State level. The petitioner has also
cleared the Maharashtra State Volleyball Referee
examination. It is the case of the petitioner that, the
petitioner was in need of service, came across with the
advertisement issued by respondent nos. 4 and 5 wherein
the requisition for the post of Director of Physical Education
alongwith other posts admissible in respondent No.5 college
was made. The petitioner being qualified and eligible for the
post of Director of Physical Education applied for the said
post, which is the isolated post. In the said advertisement,
the requisite qualification and the terms and conditions are
mentioned. In the said advertisement, it has been
mentioned that, the eligibility criterion and pay-scales
would be as per U.G.C. guidelines and circulars issued by
Government of Maharashtra. In so far as the post of
Director of Physical Education, the clause no. 2 (e) of the
advertisement states that, minimum qualification
prescribed by U.G.C. for the post of Director of Physical
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Education will be applicable from the date on which the
Government of Maharashtra implements the same rules and
regulations.
4. It is the case of the petitioner that, in pursuant
to the advertisement, the petitioner applied for the post of
Director of Physical Education. After verification of
certificates in respect of his educational qualification, the
petitioner was called for oral interview before the duly
constituted selection committee of the University. The
petitioner had appeared before the duly constituted
selection committee alongwith another candidate. The duly
constituted selection committee, after oral interview of the
petitioner and another candidate, gave first preference to
the petitioner for the post of Director of Physical Education.
It is the case of the petitioner that, in view of the
first preference given by the duly constituted selection
committee to the petitioner, the respondent No.5 college
pleased to issue appointment order to the petitioner for the
post of Director of Physical Education on probation.
Accordingly, the petitioner joined the service on 14.02.2011.
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It is the case of the petitioner that, in view of above
appointment and joining of the petitioner on the post of
Director of Physical Education, the respondent nos.4 and 5
forwarded the proposal of the petitioner and others for
approval to respondent No.3 University. It is the case of the
petitioner that, the Respondent No.3 University refused to
grant approval to the services of the petitioner and others
vide order dated 10.05.2011. In so far as the petitioner is
concerned, the approval was rejected on the ground that,
the petitioner is not possessing the qualification of
NET/SET, whereas the approval of the other lecturers was
rejected for different reasons.
5. It is the further case of the petitioner that, the
respondent No.5 college, by letter addressed to respondent
No.3 University, informed that the order by which approval
to the draft advertisement submitted by respondent No.5
college was granted, specifically mentioned that, in the said
advertisement clause 2 (d) should be incorporated. As such,
it was informed that the petitioner at the time of his
appointment, and at the time of issuance of the
advertisement, was very well qualified for the post of
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Director of Physical Education and therefore, only the
concerned duly constituted selection committee, after
verifying the advertisement proceeded to make selection of
the petitioner on merits. With the aforesaid specific
explanation, the respondent No.5 college requested for
approval to the appointment of the petitioner.
It is the further case of the petitioner that, after
above explanation, the respondent No.5 college again, vide
reminder letter dated 03.09.2011 informed that, as per the
conditions stipulated in the advertisement in question, the
State of Maharashtra has made applicable the service
conditions and eligibility criterion for the post of Director of
Physical Education in the State of Maharashtra vide circular
dated 15.02.2011 i.e. after the appointment of the petitioner
as Director of Physical Education and therefore, requested
to grant approval to the services of the petitioner.
6. It is the case of the petitioner that, inspite of
above explanation followed by the reminder letter, no steps
were taken to accord approval to the appointment of the
petitioner, therefore, by representation/application dated
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07.12.2011, the respondent No.5 college pointed out that
the minimum qualification of NET/SET introduced by the
U.G.C. for the post of Director of Physical Education has
been made applicable in the State of Maharashtra w.e.f.
15.02.2011, therefore, in view of the recommendations
made by the duly constituted selection committee, the
petitioner is rightly appointed as he being qualified and
eligible and hence it was requested to grant approval.
It is the case of the petitioner that, one
Mr. Ganesh Prakash Mangire who was appointed on the
post of Director of Physical Education on 04.10.2010
working in Kumarswami Mahavidyalaya, Ausa, Tq. Ausa,
Dist. Latur, has been granted approval by respondent no.3
University though he is not possessing the NET/SET
qualification. It is the case of the petitioner that, w ithout
considering the representations made by respondent
no.5 and the actual position, the respondent no.3
University has been pleased to reject the approval to
the petitioner vide order dated 02.03.2012 on the
ground that the petitioner is not possessing the
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qualification of NET/SET which is not legal and proper.
7. It is the further case of the petitioner that,
the conduct of respondent no.3 University to refuse
approval to the services of the petitioner without
considering the facts and circumstances of the matter
is highly illegal and improper. Therefore, the impugned
order issued by respondent no.3 is against the facts,
circumstances and legal position and therefore,
deserves to be quashed and set aside.
8. The learned counsel appearing for petitioner
submitted that, the petitioner's appointment is in
pursuant to the advertisement, after verification of the
educational certificate by the selection committee, the
petitioner was called for oral interview before the duly
selection committee of the University and thereafter,
first preference was given to the petitioner for
appointment on the post of Director of Physical
Education. The learned counsel appearing for the
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petitioner invited our attention to the copies of various
certificates showing participation of the petitioner in
various sports. It is submitted that, the petitioner
joined the services on 14th February, 2011. However,
the University by letter dated 10 th May, 2011 refused to
grant approval to the petitioner and other lecturers on
the ground that, the petitioner is not possessing
qualification of NET/SET. It is submitted that, at the
time of appointment and issuance of advertisement the
petitioner was very well qualified for the post of Director
of Physical Education, and therefore, the University
ought to have granted approval to the services of the
petitioner. The learned counsel appearing for the
petitioner also invited our attention to the pleadings
and grounds taken in the Petition and submits that,
the Petition deserves to be allowed.
9. On the other hand, the learned counsel
appearing for Respondent No.3, relying upon the
averments in the affidavit in reply, made following
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submissions.
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. 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.
10. The UGC was entrusted with the task of co-
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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 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.
The qualifications should not be relaxed
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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.
11. The National Policy on Education, 1986, it
was suggested that, "the teachers will be recruited on
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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". 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 National Educational Testing Bureau of
University Grants Commission (UGC) conducts
National Eligibility Test (NET) to determine eligibility for
lectureship and for award of Junior Research
Fellowship (JRF) for Indian Nationals in order to ensure
minimum standards for entrance in the teaching
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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 State of Maharashtra and 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 colleges.
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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 Director of Physical Education.
12. As per Government Resolution dated 12th
August, 2009 issued by the State of Maharashtra made
compulsory for passing of NET/SET examination for
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teaching and non-teaching posts. Sub-Clause (iii) of
Clause 6 of said resolution contemplates that all
existing conditions of eligibility and academic
qualification laid down by the UGC shall continue to be
applicable for direct recruitment of Assistant Director of
Physical Education/College Director of Physical
Education. The learned counsel relied upon the clause
6(a) of the Government Resolution dated 12.08.2009,
which is reproduced in para 9 of the Affidavit in reply
filed by Respondent No.3 - University.
13. The UGC issued regulation dated
30.06.2010 namely UGC regulations on minimum
qualification for appointment of teachers and other
academic staffs in Universities and Colleges and
measures for the maintenance of standards in Higher
Education 2010. The clause 4.6.3 states about the
qualification for the post of College Director of Physical
Education and Sports. Sub-clause - III specifically
states about passing of national level test conducted for
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the purpose by the UGC or any other agency approved
by the UGC. Sub-clause - V has given exemption to the
candidates, who are, or have been awarded Ph.D.
degree in accordance with the UGC. The learned
counsel appearing for the Respondent No.3 relied upon
the clause 4.6.3 of the Regulations dated 30.06.2010
which is quoted in para 10 of the Affidavit in Reply filed
by Respondent No.3 - University. The learned counsel
relying upon the said regulations submitted that, it is
mandatory on the part of University, State Government
and UGC to appoint the candidates, who are fulfilling
the required qualification as contemplated under
Government Resolution dated 12th August, 2009 and
UGC Regulations, 2010.
14. The learned counsel submitted that, the
petitioner is appointed on 14th February, 2011. The
petitioner, at the time of appointment, was not holding
required/prescribed qualification i.e. passing of
NET/SET. The learned counsel submitted that, as per
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advertisement dated 30th November, 2010 calling
application for the post of Director, Physical Education
issued by the College and approved by the University,
specifically contemplates passing of NET/SET
examination. Hence petitioner is not entitled for
appointment on the said post. The learned counsel
further submitted that, in view of this, respondent-
University refused to grant approval to the petitioner
and the action of Respondent- University is in
accordance with law. The learned counsel appearing for
Respondent No.3, therefore, submitted that, there is no
substance in the Writ Petition and therefore, Writ
Petition may kindly be rejected.
15. Upon hearing the learned counsel appearing
for the petitioner, the learned A.G.P. for State and the
learned counsel appearing for the remaining
respondents, we are of the considered view that, the
Petition deserves no consideration for the reasons set
out hereinafter. Admittedly, the petitioner has not
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passed NET/SET examination, which is mandatory.
Upon perusal of the Regulations of 2009, which are
brought in to force by 3rd Amendment, which is
published in Gazette of India on 11th July, 2009, for the
appointment of teachers in Universities and
Institutions affiliated to it, NET/SET is compulsory. As
such passing of NET/SET is mandatory condition
applicable even in the case of the petitioner. As per
sub-clause 34 of Section 2 of the Maharashtra
Universities Act, the teacher includes Director of
Physical Education. As rightly contended by the learned
counsel appearing for Respondent No.3 that, the said
issue is also dealt with by the Bombay High Court
bench at Nagpur in Writ Petition No. 1489 of 2010 and
other connected matters.
16. In the light of discussion hereinabove and in
view of the fact that, the petitioner has not passed the
NET/SET examination, we do not see any reason to
entertain the prayer of the petitioner and direct
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Respondent No.3 to grant approval to the services of
the petitioner. As per Regulation of 2009, which have
come into force w.e.f. 11th July, 2009, the change that
is made from the said date namely 11th July, 2009 is as
under :-
ig "NET/SET shall remain the minimum
eligibility condition for recruitment and
appointment of Lecturers 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 / SLET for recruitment and
appointment of Assistant Professor or
equivalent positions in Universities /Colleges /
Institutions."
17. Admittedly, the petitioner has neither passed
NET/SET nor awarded Ph.D. degree. In that view of the
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matter, the Petition sans merit, and hence rejected.
Sd/- Sd/-
( A. M. BADAR, J. ) (S.S. SHINDE, J.)
...
SGA/-
