Bombay High Court
Balaji Uttam Mogale vs The State Of Maharashtra, Through ... on 5 August, 2016
Bench: A.S. Oka
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ssp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELATE JURISDICTION
WRIT PETITION NO.9685 OF 2012
Balaji Uttam Mogale ...Petitioner
vs.
The State of Maharashtra & Ors. ...Respondents
ALONG WITH
WRIT PETITION NO.9690 OF 2012
Pradip Manohar Shitole ...Petitioner
vs.
The State of Maharashtra & Ors. ...Respondents
ALONG WITH
WRIT PETITION NO.10808 OF 2012
Haridas Manifnath Baraskar ...Petitioner
vs.
The State of Maharashtra & Ors. ...Respondents
Mr.S.G.Kudle for the Petitioner in all petitions
Ms M.P.Thakur, AGP for the respondent Nos.1 and 2.
Mr.Sanjay Thokade for respondent No.3
CORAM : A.S.OKA AND P.D.NAIK, JJ.
DATE ON WHICH THE JUDGMENT IS RESERVED: MAY 6, 2016
DATE ON WHICH JUDGMENT IS PRONOUNCED: AUGUST 3, 2016
JUDGMENT: (PER A.S.OKA,J.)
1 With a view to appreciate the submissions
canvassed across the bar, it will be necessary to
make a brief reference to the facts of the case.
Writ Petition No.9685 of 2012 is preferred by a
petitioner who was appointed under the order dated
1st December 2009 as a Full Time Teacher in Sojar
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Arts and Commerce Mahavidyalaya, Barshi. The said
college is run by the fourth respondent-trust. It
is the case made out in the petition that the
appointment of the petitioner was made on the basis
of the selection made by the Selection Committee
duly constituted by the Solapur University. It is
contended that the appointment of the petitioner was
made as a probationer. On 13 th June 2011, the
Solapur University granted approval to the
appointment of the petitioner as a probationer under
the letter of the same date addressed to the
Principal of the College. On 1st July 2012, an order
was made by the Solapur University directing
withdrawal of the affiliation of the said college
(Sojar Arts and Commerce Mahavidyalaya, Barshi).
The letter provided for withdrawal of the
affiliation in a phase wise manner. A direction was
issued not to admit the students to the said college
to the First Year from the academic year of 2012-
2013. On the ground that not a single student was
admitted in the year 2012-2013, the fourth
respondent terminated the appointment of the
petitioner by a letter dated 30th July 2012. The
petitioner is relying upon the Government
Resolution/Order dated 30th October 1996. The prayer
in this petition under Article 226 of the
Constitution of India is for issuing a writ of
mandamus directing the State Government to absorb
the petitioner in any other senior college in the
State Government as per the Government Resolution
dated 30th October 1996.
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2 There is a reply filed to this petition by
Dr.Aruna Vinchurkar, Regional Joint Director, Higher
Education, Solapur Region, Solapur on behalf of the
State Government. By relying upon the circular
dated 24th March 1994, Dr.Vinchurkar contended that
it is the responsibility of the fourth respondent to
absorb the petitioner. There is a further affidavit
filed by the same Officer on 19 th July 2016 for
pointing out the corrigendum dated 21st March 1997
which records that the Government Order dated 30 th
October 1996 will not apply to the colleges run on
"No Grant-in-aid basis". It was contended that the
college in which the petitioner was employed was
permitted to be opened on permanent "no Grant-in-aid
basis". There is a rejoinder dated 19th September
2014 filed by the petitioner dealing with the said
reply. There is an affidavit filed by Shri
S.K.Mali, the Registrar of the Solapur University
contending that the relief of absorption cannot be
claimed by the petitioner against the University.
3 There is common affidavit filed in these three
petitions by Shri Satish Deshpande Regional Joint
Director, Higher Education of the Government of
Maharashtra. Reliance is placed in the said
affidavit on the order passed by this Court dated
17th September 2013 in Writ Petition No.7333 of 2013.
Lastly, there is another affidavit in all the three
petitions by Dr.Siddharth Kharat, the Deputy
Secretary, Higher and Technical Education Department
of the Government of Maharashtra. He relied upon
the Corrigendum dated 21st March 1997 issued by the
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Government which is already relied upon in the
affidavit of Dr.Vinchurkar.
4 Writ Petition No.9690 of 2012 is filed by a
petitioner who was employed in the said college of
the fourth respondent under the letter of
appointment dated 14th July 2009. His appointment
was approved by the University of Solapur on
probation basis. As in case of the petitioner in
Writ Petition No.9685 of 2012, the employment of the
petitioner was terminated by the fourth respondent
by a letter dated 30th July 2012 on the ground that
there have been no admissions of fresh students in
the college. There is a similar affidavit in reply
filed by Dr.Aruna Vinchurkar, Regional Joint
Director, Higher Education, Solapur Region, Solapur
to which a rejoinder has been filed by the
petitioner.
5 Writ Petition No.10808 of 2012 is filed by a
petitioner who was appointed in the same college of
the fourth respondent on the basis of the selection
made by the Selection Committee. He was appointed
as a Director, Physical Education in the same
college on full time basis subject to passing NEET
examination. The University of Solapur approved the
appointment of the said petitioner on probation
basis. As in the case of the petitioners in the
other two petitions, the fourth respondent by a
letter dated 30th July 2012, terminated the
employment of the petitioner on the ground that
there have been no fresh admissions in the college.
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There is is similar affidavit filed by Dr.Aruna
Vinchurkar, the Regional Director, Higher Education,
Solapur Region, Solapur.
6 The learned counsel for the petitioner
submitted that under the Government order dated 30 th
October 1996, reliance has been placed upon the
earlier order dated 24th March 1994 under which it
was decided to grant protection to those permanent
lecturers who have been rendered surplus on account
of reduction of workload by absorbing them in other
colleges. He pointed out that under the said order
dated 30th October 1996, a direction was issued to
absorb the said surplus teachers in other colleges.
He pointed out that the said order is applicable to
the surplus teachers in aided as well as non-aided
colleges. His submission is that the Government
Resolution dated 21st March 1997 by which the
Government order dated 30th October 1996 was modified
is unconsitutional. He submitted that by the said
modification, the benefit granted under the
Government order dated 30th October 1996 to the
permanent teachers in non-aided colleges has been
arbitrarily withdrawn. He urged that the State
Government cannot make a distinction between the
surplus teachers of aided and non aided colleges.
He relied upon the decision of the Apex Court in the
case of Frank Anthony Public School Employees'
Association Vs. Union of India and others 1. He
submitted that the said decision holds that the
teachers and employees in recognised un-aided
1 1986 4 SCC 707
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private schools are entitled to the same pay scale
and other service conditions available to their
counterparts in Government aided Schools in Delhi.
He invited our attention to sub-section (3) of
section 8 of the Maharashtra University Act,1994
(for short `the said Act') and submitted that it is
the duty of the State Government to take a policy
decision and prescribe a standard Code providing for
mode of selection, appointment, absorption of
teachers rendered surplus etc and without exercising
the powers under section 8(3), the State Government
cannot issue a Government Resolution modifying the
order dated 30th October 1996. He relied upon the
decision of the Division Bench of this Court in the
case of Malti d/o Deoram Vs. State of Maharashtra
and others2.
7 The learned AGP submitted that the petitioner
has not challenged the subsequent corrigendum dated
21st March 1997 which excludes the teachers in the
non-aided colleges from the benefits under the
Government Order dated 30th October 1996. She would
urge that in absence of a challenge to the said GR,
the petitioners have no case as admittedly, the
college in which they are employed was permitted to
be opened on permanent "No Grant Aid basis". Her
submission is that the relief of absorption will
have to be sought by the petitioners against the
fourth respondent. The learned counsel for the
third respondent (University of Solapur) submitted
that no relief can be granted against the said
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respondent and the remedy of the petitioners, if
any, is against their own college or the management
i.e the fourth respondent.
8 We have carefully considered the submissions.
Sub-section 3 of section 8 of the said Act
reads thus:
"(3) The State Government may in accordance
with the provisions contained in this Act for
the purpose of securing and maintaining
uniform standards, by notification in the
Official Gazette, prescribe a Standard Code
providing for the classification, manner and
mode of selection and appointment, absorption
of teachers and employees rendered surplus,
reservation of posts in favour of members of
the Scheduled Castes, Scheduled Tribes,
[Denotified Tribes (Vimukta Jatis), Nomadic
Tribes] and other Backward Classes duties
workload, pay, allowances post-retirement,
benefits, other benefits, conduct and
disciplinary matters and other conditions of
service of the officers, teachers and other
employees of the universities and the
teachers and other employees in the
affiliated colleges and recognised
institutions (other than those managed and
maintained by the State Government, Central
Government and the local authorities). When
such Code is prescribed, the provisions made
in the Code shall prevail, and the provisions
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made in the Statutes, Ordinances, Regulations
and Rules made under this Act, for matters
included in the Code shall, to the extent to
which they are inconsistent with the
provisions of the Code, be invalid."
(emphasis added)
9 As far as the sub-section (3) of section 8 of
the said Act is concerned, the State Government is
empowered to make a standard Code providing for
classification/manner and mode of selection,
appointments, absorption of teachers rendered
surplus, reservation of posts, workload, pay and
allowances, post retirement benefits, conduct of
disciplinary matters and other aspects regarding
conditions service. The Code when made by the State
Government will apply to the Officers, teachers and
other employees of the Universities as well as
teachers and employees in the affiliated colleges of
the Universities covered by the said Act. In
paragraph 6 of the affidavit of Dr.Satish Deshpande,
Regional Director of Higher Education, Solapur
Region, Solapur filed on behalf of the State
Government which is dated 12th October 2015,
Dr.Deshpande has accepted that under sub-section (3)
of section 8 of the said Act, the State Government
is empowered to make a standard Code. In paragraph
7 of the affidavit, he has stated thus:
"7 I say and submit that the Higher and
Technical Education Department has not framed
the standard Code. However, the absorption
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of the teachers which is one of the parts of
section 8 (3) of Maharashtra Universities
Act,1994 is governed by the decisions of
Government vide G.R dated 24.3.1994,
30.10.1996 and the corrigendum dated
21.3.1997 and thus it does not appear
contrary to the provisions of section 8 (3)
of Maharashtra Universities Act,1994."
(emphasis added)
10 We have perused the Government Resolutions/
Orders dated 24th March 1994 and 30th October 1996 as
well as the corrigendum dated 21st March 1997. The
Government Resolutions/orders do no refer to sub-
section (3) of section 8 at all. Thus, what appears
to have been done by the said Resolutions is an
arrangement pending the exercise of powers under
sub-section (3) of section 8.
11 In the present case, the appointment of the
petitioners was approved by the University of
Solapur. Their appointment was on probation. The
termination of employment of the petitioners is made
two years after the orders of appointment were
issued to them. It is not the case that the
petitioners were not found to be suitable to
confirm them in their respective posts on completion
of the probation period. The orders of the
termination issued to the petitioners are on the
ground that there was no sufficient workload. But
for the said orders, the petitioners would have been
in permanent employment.
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12 The State Government has not formulated the
standard Code for dealing with the absorption of
members of the staff/teachers who have rendered
surplus. Though the State Government has failed to
perform its obligation under sub-section (3) of
section 8, on the basis of the Government
Resolution/Order dated 30th October 1996, the
petitioners could have been absorbed. But the said
Government Resolution/Order has been modified on 21 st
march 1997 by excluding the teachers in the colleges
run on "No grant-in-aid basis". What is contemplated
by sub-section (3) of section 8 is the preparation
of a standard Code. It provides that when such Code
is prescribed, the provision of such Code shall
prevail and the provisions made in the Statutes,
Ordinances, Regulations and Rules to the extent to
which the same are inconsistent with the Code will
be invalid.
13 A stand is taken in the affidavit of Dr.Satish
Deshpande that the corrigendum dated 21 st March 1997
to the Government Resolution dated 30th October 1996
is not contrary to sub-section (3) of section 8.
There is no statement made by the State Government
before the Court as to when it proposes to exercise
the power of making a standard Code.
14 In these group of petitions, there is no
challenge to the corrigendum dated 21st March 1997
which restricts the applicability of the earlier
Resolution dated 30th October 1996 to the colleges
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running on grant in aid basis. Therefore,
in view of the decision of this Court dated 27 th
September 2013 in Writ Petition No.7333 of 2013
(Bormalnat Shikshan Sanstha and another Vs. State of
Maharashtra and others), a writ as prayed cannot be
issued. So long as the corrigendum dated 21 st March
1997 is in force, no relief can be granted to the
Petitioners by the Writ Court as they were employed
in a college run on "No grant-in-aid basis".
However, we propose to permit the petitioners to
make a representation both to the University of
Solapur as well as to the State Government and
direct them to consider the same sympathetically. We
propose to issue directions to the State Government
as regards exercise of powers under sub-section (3)
of section 8 of the said Act of 1994.
15 Accordingly, we dispose of the petitions by
passing the following order:
(I) It will be open for the petitioners to make
a fresh representation to the Solapur
University as well as to the Department of
Higher and Technical Education, Government of
Maharashtra praying for their absorption in any
other College. If such a representation is
made within a period of six weeks from today,
the same shall be sympathetically decided by
the State Government as well as by the Solapur
University within a period of three months from
the date on which the representation is
received;
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(II) We direct the State Government to file an
affidavit setting out the outer limit within
which the power under sub-section (3) of
section 8 of the Maharashtra Universities
Act,1994 will be exercised by prescribing a
standard Code;
(III) We direct the State Government to exercise
the said power as expeditiously as possible and
preferably within a period of six months from
today;
(IV) The outer limit within which the standard
Code will be framed shall be specified by the
State Government by filing an affidavit within
a period of one month from today;
(V) Rule is partly made absolute on above terms
with no order as to costs.
(P.D.NAIK,J.) (A.S.OKA,J.)
