Sudhakar Nathuji Kaple & Others vs Vice Chancellor,Nagpur ...
2015 Latest Caselaw 281 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                       
                             NAGPUR BENCH, NAGPUR.

                                WRIT PETITION No.3470 of 1999

    1. Sudhakar Nathuji Kaple,




                                                      
       age 53 years, Occu. Qualified
       Library Assistant and presently 
       holding charge of Assistant 
       Librarian & working as in charge, 




                                                  
       University Campus Library, 
       R/o Nagpur.                
    2.  Chandrashekhar Ramchandra Tirpude,
        age 35 years, Occu. Qualified Library
                                 
        Assistant, presently working as 
        Incharge of the Department of Pharmacy
        Library, R/o Nagpur. 
      

    3. Kum. Sulabha W. Bokade,
       age : Major, Occu. Qualified 
   



       Library Assistant, presently
       holding charge of Assistant Librarian,
       Nagpur University, 
       R/o Nagpur. 





    4.  Deepak Kapade,
        age major, Occ. Qualified Library
        Assistant, Nagpur University, 
        Nagpur.                        ...                         ...    Petitioners. 





                                    - Versus -  

    1.  Vice Chancellor,
        Nagpur University, Nagpur. 

    2.  Nagpur University, Nagpur,
        through its Registrar, 
        University Campus, Nagpur. 

    3.  State of Maharashtra,



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        through its Secretary, 




                                                                                    
        Department of Higher & Technical 
        Education, Employment, 
        Mantralaya, New Extension Bodg.,
        Mumbai - 32.                             ...                              ... Respondents. 
    --------------------------------------------------------------------------------------------------------




                                                                                   
    Mr. R.S. Parsodkar, counsel for petitioners. 
    Mr. Atul Pande, counsel for respondent nos. 1 & 2. 
    Mrs. Kalyani Deshpande, AGP for respondent no.3.
    -------------------------------------------------------------------------------------------------------------------------------




                                                                
                                         CORAM :  B.P. DHARMADHIKARI AND
                                        
                                                         P.N. DESHMUKH, JJ.

                                         DATED    : 2
                                                       nd  / 3
                                                                SEPTEMBER, 2015
                                                              rd
                                       
    J U D G M E N T  ( Per B.P. Dharmadhikari, J )

Four petitioners in the present matter invoke jurisdiction of

this court under Article 226 of the Constitution of India for quashing a

communication dated 11.08.1999 by which it is communicated to

them that they do not have a promotional channel. They also

challenge advertisement dated 21.06.1999 issued by respondent nos.

1 and 2 for direct recruitment to the post of Assistant University

Librarian. By other prayer, a direction is sought to respondent

University not to treat the post of Librarian or Assistant Librarian as

non-vacational academic staff and to treat them as per Section 2(34)

of Maharashtra Universities Act. A direction is also sought not to act

in furtherance of government resolution dated 14.11.1995 whereby

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the State Government has declared their post as non-vacational post.

2. It needs to be noted that when petition was filed, there was

only one advertisement i.e. advertisement dated 21.6.1999. Thereafter

another advertisement has been issued on 24.3.2012. This court has

vide its order dated 20.4.2000 directed that appointment of a

candidate would depend on decision of this writ petition and

successful candidates would not be entitled to claim any equity in the

matter. Similar order has been passed on 5.3.2013 while deciding

CAW 541/2013. In short, appointments made by respondent nos. 1 &

2 in pursuance of such advertisement are already subjected to final

orders in this writ petition.

3. Shri Parsodkar, in this background, has invited our attention

to provisions contained in Maharashtra Non-Agriculture Universities

Standard Code to urge that these provisions, particularly Rule 3

thereof which is on subject of classification, sub-divides non-teaching

employees of University in three classes and vide its sub-rule 3 it lays

down that appointment has to be by promotion or by nomination by

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adhering to ratio of 50:50 unless otherwise directed. He further states

that thus the staff working in library also got benefit and was being

promoted in accordance with above mentioned 50:50 ratio. He states

that petitioners before this court are qualified Library Assistants and as

per channel of promotion in vogue, they are entitled to next

promotion as Assistant Librarian. He invites attention to said channel

as described in paragraph 2 of writ petition. He points out that

petitioners have improved their qualification and hold much higher

qualification than prescribed in the Rules. Our attention is also drawn

to orders dated 13.12.1991 and 29.11.1993 to show that one Smt.

Pawar Qualified Library Assistant was promoted as Assistant Librarian

and though the duration was shown to be of one year, she continued

on that post till 27.3.2000 and on that date she was given a further

promotion as Deputy Librarian. He has also invited our attention to

order issued to one Suresh Randai on 12.5.2000 to urge that that

person also had been promoted. Learned counsel submits that thus,

promotion is being extended only to favoured ones and petitioners

have been discriminated against.

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4. The communication dated 11.08.1999 sent by Assistant

Registrar in response to representation of petitioners on 30.07.1999 is

assailed. It is pointed out that reason given therein is irrelevant and

though post of Assistant University Librarian may be treated as non-

vacational post or holder thereof may be classified as non-vacational

academic staff under section 2(21) of Maharashtra University Act,

1994 ( hereinafter referred to as the 1994 Act), that by itself does not

mean that the promotional channel ceases. He invites our attention to

the provisions of Section 2(34) of the 1994 Act to show that the post

of University and College Librarian has been included therein and thus

petitioners have been recognized as teachers. However, he points out

that for recruitment of petitioners and regular teachers the 1994 Act

contemplates separate procedure. Procedure under section 76 needs

to be followed for selection and appointment of the University

teachers while procedure prescribed in Section 79 could be followed

for appointment of librarian. In this background, he submits that

impugned communication reveals non application of mind and is

liable to be quashed and set aside.

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5. Our attention is also drawn to a letter dated 3.3.2005 sent

by office of Chancellor on clarification regarding amended section

57(3)(ba) of 1994 Act. Office of Chancellor has directed that librarian

cannot be treated as teacher. He states that this situation ought to

have been kept in mind while deciding representation of petitioners.

Office order dated 11.9.2012 issued in favour of Dr. Pramod Dakhole

appointing him as Librarian is also pressed into service for this

purpose.

6. Reply filed by University is read out to substantiate the

contention that only because librarian is included as a non-vacational

staff, the promotion has been denied. He argues that in the light of

Section 76 and Section 79 supra librarian cannot be treated as

university teacher or part of teaching cadre. He also invites attention

to an order dated 30.8.1995 issued by State Government which

according to him only looks at language of section 2(34) and therefore

is not relevant for deciding present controversy. The government

decision dated 29.7.1993 pointing out categorization of various

employees due to wage revision and clarifying the confusion is also

pressed into service. He submits that it does not prohibit the

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promotion from post of Qualified Library Assistant to Assistant

Librarian.

7. Our attention is invited to fact that petitioners are

substantively appointed on a lower post and without promoting them

to higher post, are made to hold additional charge thereof on 10%

officiating basis for years together. He states that when this situation

is compared with treatment extended to Smt. Pawar or Shri Randai,

injustice done to petitioners is apparent. He points out that petitioner

no. 1 had continued to officiate on 10% post till his superannuation on

1.9.2004.

8. Advocate Pande on behalf of respondent University has

strongly opposed the petition. He submits that petitioner no.1 has

proceeded on voluntary retirement in September, 2004 and petitioner

no. 4 has also resigned and presently is not in employment. The

advertisement dated 21.06.1999 which has given rise to filing of

present petition was never acted upon and died its own death. In so

far as the later advertisement is concerned, petitioners did not apply

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and as such there was no reason or occasion to consider them. He

points out that order dated 13.12.1991 issued to Smt. Pawar or orders

of her continuation are prior to coming into force of the 1994 Act. The

posts in library held by petitioners have been treated and accepted as

non-vacational posts as understood in Section 2(21) of the 1994 Act.

This is because of inclusion of that cadre in definition of teacher in

section 2(34) of the 1994 Act. Our attention is invited to provisions

contained in direction no. 7 of 1999. He points out that it has been

issued for implementation of revised university grant commission pay

scales for teachers and for other measures to maintain standard in

higher education. There in clause 9 while prescribing qualification

and recruitment the post of Assistant Librarian, Deputy Librarian and

Librarian have been included. The provisions of clause 12 thereof also

prescribe the constitution of selection committee. Pay scales have

been accordingly prescribed for Deputy Librarians as also Assistant

Librarians while the minimum qualification for direct recruitment to

the post of Librarian, Deputy Librarian and Assistant Librarian are

given in Appendix-V to this direction. He also invited our attention to

order dated 14.11.1995 issued by government after coming into force

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the 1994 Act to dispel the doubts and to clarify how a Librarian or

College Librarian needed to be treated as a teacher. He argues that

because librarians became teachers, as per provisions of section 76 of

1994 Act and Standard Code mentioned supra ceased to apply to

them. He also argues that in fact that Standard Code is impliedly

repealed and cannot be looked into while deciding present

controversy. It is urged that petition as filed, therefore, does not

expressly refer to said Standard Code and does not raise any specific

contention based upon it. Learned counsel submits that respondent

nos. 1 & 2 are obliged to follow the provisions of law and as there is

no promotional channel available to the cadre of librarian, the

advertisement issued on 24.3.2012 is for direct recruitment. He points

out that Dr. Dakhole has been selected in pursuance thereof as

Librarian directly.

9. Learned AGP appearing for respondent no.3 adopted

arguments of Advocate Pande and states that provisions of the 1994

Act only need to be looked into in this petition.

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10. Advocate Parsodkar in his brief reply submits that the

respondents had ignored basic distinction between librarian and

teacher. He states that that distinction has been noticed in section 76

and section 79 of the 1994 Act. Because of that distinction only the

office of Vice Chancellor has on 3.3.2005 issued a clarification and on

14.11.1995 the posts of Librarian or Assistant Librarian have been

recognized as non-vacational academic staff posts. He, therefore,

states that in this situation promotional channel prescribed in

Standard Code must be acted upon in so far as petitioners are

concerned.

11. Maharashtra Universities Act, 1994 has come into force on

21st of July, 1994. As per Section 3 thereof, in relation to existing

University namely, Nagpur University constituted under the Nagpur

University Act, 1974, a corresponding University with name Rashtra

Sant Tukdoji Maharaj University, Nagpur is constituted from

commencement of 1994 Act. Section 115 of 1994 Act repealed

Nagpur University Act, 1974. As per Section 115 (2)(xii), all Statues

and Ordinances made under Nagpur University Act can continue

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insofar as they are not consistent with provisions of 1994 Act. Clause

(xiv) provides that standard code, if any, prescribed under said Act

shall be deemed to have been prescribed under 1994 Act and shall,

save as otherwise provided by or under this Act, continue to remain in

force, until it is superseded in accordance with the provisions of 1994

Act. The perusal of Maharashtra non-Agricultural Universities and

Affiliated Colleges Standard Code shows that it is issued by exercising

powers conferred by Section 77-A of the Nagpur University Act, 1974

for providing terms and conditions of services of the non-teaching

employees of Non-agricultural Universities in Maharashtra.

Accordingly, it has been named as Maharashtra Non-Agricultural

Universities and Affiliated Colleges Standard Code (Terms and

conditions of service of non-teaching employees), Rules 1984.

Nagpur University Act, 1974 defines 'teacher' in its Section (30) and

said definition or then definition of "Teacher of the University"

contained in Section 2(31) does not show that qualified Library

Assistant or Assistant Librarian were then recognized as part of

teaching staff. The Standard Code mentioned supra in Rule 3 while

prescribing the classification, appointment and recruitment, etc.

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therefore regulated even the cadre of Librarians. The argument that

ratio of 50% by nomination and 50% by promotion should have been

followed is, therefore, possible under the said provisions.

12. However, after coming into force of 1994 Act the said

definition of teacher has undergone change and its Section 2(34)

reveals that post like Librarian, Deputy or Assistant Librarian as also

Documentation Officer in the University and College Librarian are

included within said definition.

13. Section 2(21) of 1994 Act defines 'non-vacational academic

staff' to mean that such staff as the Government may classify to be

non-vacational academic staff and it includes all such staff which is

complementary academic staff but does not include staff engaged

purely in discharge of administrative functions. On 14th of November,

1995 the State Government has declared post of University Librarian

and Assistant Librarian and as also Deputy Librarian and College

Librarian to be non-vacational posts.

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14. The moment, post of Librarian or cadre as such found

inclusion in cadre of teacher in 1994 Act, it is clear that in view of

above mentioned provisions of Section 115 of the 1994 Act, the

inconsistent provisions in Standard Code cannot survive beyond 21st of

July, 1994.

15.

The communication dated 3rd of March, 2005 sent by office

of Chancellor has been strongly relied upon by the petitioner to urge

that there it has been specified that Librarian cannot be treated as a

teacher. We find that communication itself is very clear. The

clarification was sought on amended Section 57(3)(ba) of 1994 Act.

Section 57 is on Grievances Committee and Section 57(3) is on its

composition. Clause (ba) states that two members of Senate

nominated by members of Senate are to be members of Grievances

Committee. One of them has to be a woman representative of the

management while the other has to be a "teacher". Clarification

sought for was whether a Librarian can be nominated on Grievance

Committee as such "teacher" under Section 57(3) (ba). The office of

Hon'ble Chancellor has looked into provisions under Section 25 and

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found that Senate consists of the Librarian of University Library as per

Section 25(2)(i) and 20 teachers as per its clause (p). It is in this

background that said word "teacher" in Section 57(3)(ba) has been

construed to exclude Librarian. Section 2 which defines teacher in its

sub-section 34 itself begins the words "unless the context otherwise

requires". Thus word 'teacher' has been interpreted with reference to

context in which it has been used in Section 25(2) of 1994 Act and

communication dated 3rd March, 2005 has been issued. The

communication therefore does not mean that a Librarian is found not

to be a teacher as defined in Section 2(34).

16. While narrating facts, we have already noted that after

advertisement dated 21st of June, 1999 next advertisement has been

published on 24th of March, 2012. It is apparent that Dr.Pradeep

Dakhole has been selected and appointed in pursuance of said

advertisement and office order dated 11th of September, 2012

appointing him therefore mentions Section 19(2) of 1994 Act. That

order also mentions that he has been selected by Selection Committee

constituted under Section 79 thereof.

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17. As against this, Smt.Pawar was first appointed on 13th of

December, 1991 and thereafter second order in her favour is of 27 st of

March, 2000. Developments after 1993 till 27th of March, 2000 are

not pointed out to us but an order dated 27th of March, 2000 has been

produced. By that order it is mentioned that Smt.Pawar, Assistant

Librarian is appointed as a Deputy Librarian on probation for a period

of one year. Petitioners have not pointed out that after 1993 and till

2000 there was any advertisement for post of Deputy Librarian and

Smt.Pawar has been appointed in pursuance of such advertisement.

Smt.Pawar is not party before this Court. As such nothing more can be

said about legality or otherwise of said order dated 27 th of March,

2000 in present matter. Order dated 12th of May, 2000 by which one

Suresh Tulsiram Randai came to be appointed as an Assistant Librarian

expressly stipulates that it is subject to decision of this Court in the

present writ petition. Thus it is again not in furtherance of any

advertisement. If it is a promotion, there is no challenge to it in this

writ petition. Hence, the appointment of Smt.Pawar or Shri Suresh

Randai cannot be said to be in alleged violation of quota prescribed for

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direct recruitment and for promotion. As such their orders cannot be

subjected to result of present writ petition.

18. We have already found that provisions of Standard Code are

not relevant after 21st of July, 1994. Hence, petition as filed by

placing reliance upon it and for claiming promotion is misconceived.

No case is made out for warranting interference. Writ petition is,

therefore, dismissed. Rule is discharged. No costs.

                                      JUDGE                          JUDGE
   





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