Bombay High Court
Shri Sambhaji Shivaji Mali vs The Hon'Ble Vice ... on 31 August, 2016
Bench: R.D. Dhanuka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3352 OF 1999
Shri Sambhaji Shivaji Mali )
Adult, Occupation : Nil, )
Residing at : Kore Building, )
near Ram Mandir, Sangli, )
District Sangli, Pin - 416 416. ) .. Petitioner
Versus
1. The Honourable Vice Chancellor )
Shivaji University, Vidyanagar,
Kolhapur 416 004.
ig)
)
2. The Honourable Secretary )
Latthe Education Society, )
Rajnemi Campus, Timber Area, )
Sangli - 416 416. )
3. The Principal )
Latthe Education Society, )
Ganpatrao Arawade, )
College of Commerce, )
Rajnemi Campus, North Shivajinagar, )
Timber Area, Sangli - 416 416. )
4. The Collector, )
office of the Collectorate )
Sangli - 416 416. )
5. Prof.Milind Warmare, )
1, Shastri Nagar, Dr.Ambedkar Road, )
Sangli - 416 416. )
6. Joint Director of Education )
(Higher Education), )
Maharashtra State, Pune. ) .. Respondents
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Mr.N.V. Bandiwadekar i/by Mr.G.M. Savagave for the petitioner.
Mr.A.B.Borkar for the respondent no.1.
Mr.T.S.Ingale for the respondent no.3.
Mrs.M.S. Bane and Mrs.Vaishali Nimbalkar, AGP for the respondent
nos.4 and 6 - State.
---
CORAM : R.D. DHANUKA, J.
RESERVED ON : 28th June 2016
PRONOUNCED ON : 31st August 2016
Judgment :-
. By this petition filed under Articles 226 and 227 of the
Constitution of India, the petitioner has prayed for a writ of certiorari for
quashing and setting aside the order and judgment dated 19 th April 1999
passed by the learned Presiding Officer, Pune Shivaji University and
College Tribunal in Appeal No.38 of 1996 thereby dismissing the appeal
filed by the petitioner and seeks writ of mandamus for quashing and
setting aside the order dated 27th October 1995 passed by the Tehsildar,
Miraj and for other reliefs. Some of the relevant facts for the purpose of
deciding this writ petition are as under :-
2. The petitioner belongs to Lingayat Community. The
petitioner is M.A.(English) and LL.B.(Special). On 23rd June 1968, the
petitioner was appointed as a lecturer in the college run by the respondent
no.1 as an open category candidate and was posted at Sangli College,
Sangli. On 23rd July 1971, the petitioner was confirmed in the post of
lecturer w.e.f. 23rd July 1971. On 30th June 1989, the petitioner was
appointed as a Vice Principal in the respondent no.3 college w.e.f. 1 st
July 1989. On 24th July 1995, the petitioner was promoted as Principal
of N.D. Patil Night College of Arts and Commerce, Sangli.
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3. On 15th May 1995, the Tehsildar, Miraj issued a caste
certificate to the petitioner certifying that the petitioner belonged to
Hindu Lingader, Scheduled Caste. On 21st September 1995, the Tehsildar,
Miraj issued a notice to the petitioner to remain present on 25th September
1995 for the purpose of enquiry into the complaint received in respect
of the said cast certificate dated 15th May 1995 which was issued to the
petitioner by the Tehsildar, Miraj. The said complaint was filed by the
Phule Ambedkar Shahu Teachers' Association alleging that the petitioner
had obtained a false caste certificate.
4.
It is the case of the petitioner that though the petitioner
received the said notice from Tehsildar, Miraj, on 25 th September 1995,
the petitioner could not remain present before the Tehsildar for the said
enquiry. On 26th September 1995, the Tehsildar issued another notice
to the petitioner directing the petitioner to remain present for enquiry on
6th October 1995. In the said notice dated 26 th September 1995, the
Tehsildar had once again asked the petitioner to produce requisite
documents immediately and threatened that in the event of failure on the
part of the petitioner to produce the documents, a presumption would be
drawn against the petitioner and the petitioner would be prosecuted. On
6th October 1995, the petitioner received the said notice dated 26 th
September 1995.
5. On 28th September 1995, the petitioner was arrested by the
local police and was released on bail on 5 th October 1995. On 6th
October 1995, the petitioner informed the Tehsildar that he was arrested
and the relevant documents were in custody of police and it was therefore
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not possible for him to produce those documents before the Tehsildar.
The petitioner therefore could not remain present before the Tehsildar on
6th October 1995.
6. On 25th September 1995, the respondent no.2 management
issued an order reverting the petitioner from the post of Principal to the
post of Lecturer on the ground that several complaints were received by
the management against the petitioner regarding his caste certificate and
also on the ground that an enquiry in that respect was going on at
University level. It is the case of the petitioner that the respondent no.2
management took the said decision as per Statute 196(2)(a) framed by
the Shivaji University. It is the case of the petitioner that the said decision
was taken by the management without giving an opportunity of hearing
to the petitioner and without conducting any enquiry.
7. On 27th October 1995, the Tehsildar issued an order thereby
cancelling the caste certificate which was issued to the petitioner based
on the complaint made by the said Phule Ambedkar Shahu Teachers'
Association. It is the case of the petitioner that copy of the said complaint
made by the said Phule Ambedkar Shahu Teachers' Association was not
supplied to the petitioner. The Tehsildar passed the said order on 27 th
October 1995 without giving an opportunity of hearing to the petitioner.
8. On 13th November 1995, the petitioner sent a reply to the
Tehsildar contending that the order passed by the Tehsildar thereby
canceling the caste certificate was passed behind the back of the
petitioner. The petitioner also contended that the petitioner had not
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submitted any School Leaving Certificate of the school of which the
name was mentioned in the said order while obtaining the caste
certificate. The petitioner also made a grievance that a copy of the said
complaint made by the said Phule Ambedkar Shahu Teachers' Association
had not been supplied to the petitioner.
9. On 13th November 1995, the petitioner also made a
complaint to the Sub-Divisional Officer, Miraj against the said order
dated 27th October 1995 passed by the Tehsildar. On 27th October 1995,
the Management Council passed a Resolution and decided to conduct
an enquiry in the matter of caste certificate of the petitioner and in view
of the detention of the petitioner by the police, it was decided to
constitute a Preliminary Enquiry Committee as per Statute 216(A) and
to obtain explanation from the petitioner along with all necessary
documents through Head of the Department, G.A. College of Commerce.
10. The respondent no.3 sent a letter dated 2nd November 1995
to the Shivaji University and requested to nominate two persons for
constituting a preliminary Enquiry Committee as per Statute 216(A)
framed by the Shivaji University. On 5th December 1995, the Shivaji
University sent a reply to the management informing that since there was
allegation against the petitioner that he had submitted a false caste
certificate of Scheduled Caste category for appointment as Principal, the
University had appointed a committee. The University informed the
management that the University had not approved the decision of the
management to revert the petitioner from the post of Principal to his
original post as Lecturer as per Statute 196(2)(a). It was stated in the said
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letter that the management should have taken action as per Statute
217(A).
11. By the said letter, the University directed the management
to submit explanation as to why such action was not taken by the
management as per Statute 217(A). The University also informed the
management that the management had no authority to conduct the
enquiry against the petitioner. It is the case of the management that in
view of the said letter dated 5th December 1995, the management did
not conduct any enquiry against the petitioner though it had proposed as
per Statute 216 (A).
12. On 14th November 1995, the Shivaji University informed
the petitioner that the Vice Chancellor had appointed an enquiry
committee and had proposed to hold preliminary discussion with the
petitioner in the enquiry in respect of his caste certificate submitted by
the petitioner and directed the petitioner to remain present for recording
his statement before the said committee on 17 th November 1995. Pursuant
to the said notice, the petitioner appeared before the said enquiry
committee. The petitioner was asked two questions and was asked to
produce certain documents.
13. On 17th February 1996, the said enquiry committee
appointed by the Vice Chancellor of the Shivaji University submitted its
report to the Shivaji University. On 7 th March 1996, the Management
Council of the Shivaji University passed a Resolution. The text of the
said resolution is referred to in the letter dated 7 th March 1996 addressed
by the Shivaji University to the management of the College. By the said
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letter, University informed the management that three member committee
appointed by the Management Council had submitted its report. The said
report was discussed in the meeting of the Management Council held on
7th February 1996. In the said meeting, it was decided that since the
petitioner had submitted false documents to obtain caste certificate of
Scheduled Caste category and had taken undue advantage of the said
caste certificate, the approval given to the petitioner by the Shivaji
University vide order dated 15th September 1972 should be immediately
withdrawn and the same should be intimated to the petitioner and the
Management Council. It is the case of the petitioner that the petitioner
was not supplied with a copy of the report of the said three member
committee which was submitted to the Management Council of the
Shivaji University.
14. On 9th March 1996, the management informed the petitioner
that in view of withdrawal of the approval which was granted to the
petitioner as teacher/lecturer, the services of the petitioner as teacher had
come to an end and the petitioner would be relieved from service w.e.f.
11th March 1996. On 9th April 1996, the petitioner filed an appeal (38 of
1996) under Section 59(1) of the Maharashtra Universities Act, 1994
impugning the said order of termination dated 9th March 1996. In the
said appeal filed by the petitioner before the University and College
tribunal, the Shivaji University filed an application raising a preliminary
objection about maintainability of the said appeal filed by the petitioner.
15. On 26th August 1996, the University and College tribunal
rejected the said application filed by the Shivaji University. Being
aggrieved by the said order dated 26 th August 1996, Shivaji University
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filed a writ petition (5153 of 1996) in this Court. By an order dated 15 th
October 1996, Division Bench of this Court rejected the said writ petition
and granted liberty to the Shivaji University to approach this Court if so
advised but after the said appeal filed by the petitioner was decided.
The said Shivaji University filed written statement on 7 th August 1996.
By an order and judgment dated 19th April 1999, the University and
College tribunal dismissed the said appeal (38 of 1996) filed by the
petitioner on various grounds. This order and judgment of the University
and College tribunal dated 19th April 1999 has been impugned by the
petitioner in this writ petition filed under Articles 226 and 227 of the
Constitution of India on various grounds.
16. Mr.Bandiwadekar, learned counsel for the petitioner submits
that the learned Tehsildar had no power to cancel the caste certificate of
the petitioner. Learned Tehsildar could not review his own order. He
submits that the Tehsildar had passed the said order thereby canceling
the caste certificate which was issued to the petitioner, without giving
him proper opportunity of being heard. By a notice dated 21 st September
1995, Tehsildar had called upon the petitioner to remain present on 25 th
September 1995 for the enquiry. The said notice was received by the
petitioner belatedly. The notice dated 26th September 1995 was received
by the petitioner on 6th October 1995. The petitioner however was
arrested by the police on 28 th September 1995 in view of the complaint
made by the Phule Ambedkar Shahu Teachers' Association. The petitioner
was released on bail only on 5th October 1995. He submits that the
petitioner had informed the Tehsildar on 6th October 1995 that all the
documents were in custody of the police and thus the petitioner would
not be able to produce those documents. He submits that the learned
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Tehsildar did not give any proper opportunity to the petitioner to
produce those documents subsequently and passed the order of
cancellation of the earlier caste certificate.
17. It is the case of the petitioner that the entire action initiated
by the Shivaji University based on the cancellation of the caste certificate
by the Tehsildar was thus totally illegal and without authority of law.
The petitioner was not supplied with a copy of any complaint made by
the said Phule Ambedkar Shahu Teachers' Association. The Tehsildar
appears to have considered the said complaint behind the back of the
petitioner and passed the impugned order canceling the caste certificate.
18. It is submitted by the learned counsel for the petitioner that
the petitioner was initially appointed as a lecturer and his appointment
was in open category. He submits that the allegation made by the
management as well as the Shivaji University was that while seeking
promotion as a Principal, the petitioner had submitted a caste certificate
showing the petitioner as Scheduled Caste which caste certificate was
subsequently cancelled by the Tehsildar. He submits that services of the
petitioner were terminated by the management without holding any
enquiry against the petitioner and in violation of the provisions of the
Statutes framed by the Shivaji University.
19. In support of this submission, learned counsel for the
petitioner invited my attention to Statutes 212 and 216(A). He submits
that the management could not have terminated the services of the
petitioner without conducting a full-fledged enquiry and could not
have inflicted any major penalty. Reliance is also placed on Statute
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211(3) of the said Act. He submits that admittedly the management had
passed a resolution proposing to conduct an enquiry against the
petitioner under Statute 216(A), however, no such enquiry was admittedly
conducted by the management. Though the management had rightly
proposed to conduct an enquiry under Statute 216(A), in view of the
illegal instructions issued by the Shivaji University, the management did
not conduct the said enquiry under Statute 216(A) though was required
to be held before inflicting any major penalty upon the petitioner. The
letter sent by the Shivaji University disapproving the reversal of the
petitioner made by the management was not sent by the management to
the petitioner.
20. It is submitted that the management admittedly did not
challenge the direction issued by the Shivaji University not to conduct
any enquiry against the petitioner under Statute 216(A) and disapproving
the action of the management in reverting the petitioner to the post of
Lecturer from the post of Principal. He invited my attention to Statute
216(A) of the said Act and would submit that the enquiry against the
Principal of College is mandatory under the said provision which has to
be a full-fledged departmental enquiry in accordance with the procedure
prescribed therein. He submits that neither the Shivaji University nor the
management had followed any requisite procedure under the provisions
of the said Maharashtra Universities Act, 1994 and under the Statutes
framed by the Shivaji University. It is submitted by the learned counsel
that though there was a specific direction issued by the Shivaji University
to conduct an enquiry against the petitioner under Statute 217(A),
admittedly the management did not conduct any such enquiry even
under the said provisions.
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21. Learned counsel for the petitioner invited my attention to
various provisions of the Maharashtra Universities Act, 1994 and would
submit that the Shivaji University had no power to make any enquiry
regarding validity of the caste certificate issued by the Tehsildar in favour
of the petitioner. He submits that the petitioner was only called upon by
the said enquiry committee to give certain explanation regarding caste
certificate and to produce documents. The petitioner was never informed
about the nature and purpose of such enquiry against the petitioner. He
submits that merely because the petitioner had appeared before the said
enquiry committee pursuant to the notice issued to him for a limited
purpose, participation of the petitioner for such limited purpose would
not confer jurisdiction on the Shivaji University.
22. It is submitted by the learned counsel for the petitioner that
the university did not give any notice informing the petitioner that the
university had proposed to conduct an enquiry for the purposes of taking
a decision of the termination of the services of the petitioner. The
petitioner was not even informed before constitution of an enquiry
committee by the university. The university had recognized the petitioner
as Principal but had cancelled the approval of the petitioner to the post of
Lecturer which was granted in the year 1972. He submits that the
university could not cancel the approval of the petitioner as a Lecturer .
The petitioner had not submitted any caste certificate while applying for
the post of Lecturer . Similarly the management also could not terminate
the services of the petitioner as a Lecturer on the ground that the
petitioner had alleged to have submitted a false caste certificate while
applying for the post of Principal.
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23. Learned counsel appearing for the petitioner placed reliance
on the judgment of the Supreme Court in case of Kumari Madhuri Patil
vs. Additional Commissioner (1994) 6 SCC 241, and more particularly
on pages 103 to 106. He submits that the university had appointed three
members committee for the purpose of enquiry after the judgment of the
Supreme Court in case of Kumari Madhuri (supra) was already
pronounced. The appointment of the enquiry committee by the university
was thus illegal and contrary to the said judgment of the Supreme Court.
24. It is submitted by the learned counsel for the petitioner that
the learned Tehsildar while recalling his order granting the caste
certificate had relied upon the alleged school leaving certificate alleged to
have been issued by a school. The petitioner had never attended the said
school nor had produced the said alleged school leaving certificate before
the Tehsildar. Without giving a proper opportunity to the petitioner, the
Tehsildar relied upon the said school leaving certificate and illegally
recalled his earlier order granting caste certificate in favour of the
petitioner. The petitioner had accordingly disputed the said alleged school
leaving certificate relied upon by the Tehsildar immediately upon the
petitioner having come to know about the said order passed by the
Tehsildar.
25. It is submitted by the learned counsel for the petitioner that
the Statute 196(2)(a) of Statute does not provide for reversion of any
employee. The reversion of the petitioner from the post of Principal to
Lecturer was not a reversion simplicitor but was punishment without
conducting an enquiry which action was totally contrary to the said
provision.
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26. It is submitted by the learned counsel for the petitioner that
the management has terminated the services of the petitioner based on the
illegal order passed by the university by which the university had
cancelled the approval granted to the petitioner. He submits that the
management did not challenge the earlier order passed by the university
directing the management not to conduct any enquiry against the
petitioner under section 216(A) of the Maharashtra Universities Act, 1994
though the management had initially proposed to conduct a full fledged
enquiry against the petitioner under the said provision.
27.
Learned counsel appearing for the petitioner placed reliance
on the judgment of this Court in case of Daulat Dhana Mali vs. State of
Maharashtra & Ors. (1994) Mh.L.J. 1710 and in particular paragraphs 2
and 5 and would submit that the issue of caste certificate can be
considered only by the Caste Scrutiny Committee and not by the
Tehsildar or by the university. He submits that the enquiry conducted by
the university in the validity of the caste certificate itself was totally
illegal and contrary to the law laid down by this Court in case of Daulat
Dhana Mali (supra).
28. Learned counsel for the petitioner placed reliance on the
judgment of the Division Bench of this Court in case of Miss Priti
Prataprao Shinde vs. The State of Maharashtra & Ors. delivered on 10th
December, 2007 in Writ Petition No.2359 of 2007 and in particular
paragraph 2 in support of the submission that once the university had
already granted approval to the appointment of the petitioner after
ascertaining the facts from the management, there could be no
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justification for cancelling the approval without issuing any notice to the
petitioner. Learned counsel for the petitioner relied upon the said
judgment in support of his submission that the notice was required to be
given by the university thereby informing the petitioner and the
management the reasons as to why the university wanted to recall its
approval. He submits that similarly the Tehsildar also ought to have given
appropriate notice to the petitioner informing the petitioner about the
proposed action of the Teshildar to recall the earlier caste certificate
granted in favour of the petitioner.
29.
Learned counsel for the petitioner placed reliance on the
judgment of the Division Bench of this Court in case of Satpute Vidya
Machindra vs. The state of Maharashtra & Ors. delivered on 2nd
August, 2013 in Writ Petition No.3811 of 2013 and other companion
matter and in particular paragraphs 2 and 3 in support of the submission
that the learned Tehsildar had no power to review his own order. The
university also could not have reviewed its approval granted to the
appointment of the petitioner. He submits that admittedly no show cause
notice was issued by the university to the petitioner to show cause as to
why the approval to the appointment of the petitioner granted by the
university was required to be recalled. The entire action on the part of the
university as well as the management is in violation of principles of
natural justice.
30. Learned counsel for the petitioner invited my attention to the
prayers in the appeal filed by the petitioner before the tribunal and also
the order passed by the tribunal. He submits that the tribunal did not
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frame any issue as to whether the university could cancel the approval
already granted and if could cancel whether any requisite procedure for
cancellation of the approval was followed by the university. Reliance is
also placed on sections 58 and 59 of the Maharashtra Universities Act,
1994.
31. Learned counsel for the petitioner placed reliance on
sections 8 and 9 of the MEPS Act and would submit that the said two
provisions were in pari materia with sections 58 and 59 of the
Maharashtra Universities Act, 1994. Leaned counsel placed reliance on
the judgment of this Court in case of Arti Vithalrao Warkhede vs.
Education Officer (Secondary), Zilla Parishad, Wardha & Ors., (2011)
1 Mh.L.J. 638 and in particular paragraphs 2 and 6. It is submitted by the
learned counsel for the petitioner that it is not in dispute that on 25 th
November, 2014, the petitioner has been already acquitted by the learned
Magistrate, Islampur in the criminal proceedings filed on the basis of the
complaint made by the Teachers" Association. He submits that there were
no allegations against the petitioner that he was appointed as a Lecturer
in open category on the ground of any alleged fraud. The university had
already granted approval to the appointment of the petitioner as a
Lecturer. He submits that the caste certificate produced by the petitioner
did not show that any documents were produced by the petitioner for
obtaining such caste certificate as referred in the impugned order passed
by the learned Tehsildar.
32. It is submitted by the learned counsel for the petitioner that
neither any directions were given by the university to the management to
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terminate the services of the petitioner nor such directions could be given.
He submits that only after conducting proper enquiry in accordance with
law, the management could have terminated the services of the petitioner
and that also as a Principal and not as a Lecturer. He submit that the
university could not have cancelled the approval granted to the petitioner
as as Lecturer after 24 years. He submits that even if the university
could have conducted an enquiry against the petitioner, the said enquiry
could have conducted only in respect of the appointment of the petitioner
as a Principal and not as a Lecturer. He submits that though this issue
was raised by the petitioner specifically before the tribunal, the tribunal
has not dealt with this crucial issue at all in the impugned order.
33. Learned counsel for the petitioner invited my attention to the
statutory rules framed by Shivaji University which provided for a
mandatory procedure for conducting a full fledged enquiry before
inflicting any major penalty. He submits that though the university as
well as the management had taken a decision to terminate the services of
the petitioner which punishment was major punishment, the university as
well as the management dispensed with the regular enquiry before
initiating any such action. He submits that the conduct of the regular
enquiry cannot be dispensed with. Reliance is placed on Statute 214 and
it is submitted that power to inflict penalty vests on the Governing Body
of the Affiliated College recognized with the university.
34. It is submitted that only the management of the college could
take action against the petitioner after conducting appropriate regular
enquiry contemplated under the Maharashtra Universities Act, 1994 and
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Statutory Rules framed under the said Act an the Statutes. Learned
counsel for the petitioner placed reliance on the judgment of the Supreme
Court in case of Ramana Dayaram Shetty vs. International Airport
Authority of India & Ors., (1979) 3 SCC 489 and in particular
paragraphs 10 to 12 in support of the submission that every action by the
executive government must be informed with reasons and should be free
from arbitrariness.
35. Mr.Borkar, learned counsel for the university submits that
the Tehsildar being Quasi and Judicial Authority had inherent powers to
recall his own order. He submits that the findings recorded by the
Tehsildar and the order passed by him cancelling the caste certificate was
admittedly not stayed or challenged when the management council had
passed an order. He submits that the university had passed a resolution to
conduct an enquiry for looking into the conduct of the petitioner while
obtaining a false caste certificate and submitting such false certificate
while applying to the post of Principal. He placed reliance on section 42
of the Maharashtra Universities Act, 1994. He submits that the Statutes
framed by Shivaji University were continued to be in force even after
enactment of the Maharashtra Universities Act, 1994 in view of the
specific provision made under the said Act. Reliance is placed on Statute
195 of the Statutes framed by Shivaji University which provides for
mode of recruitment of teachers and principal.
36. Learned counsel for the university placed reliance on the
judgment of the Division Bench of this Court in case of Sunil
Gayaprasad Mishra vs. Rashtra Sant Tukdoji Maharaj University &
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Ors, 2012(6) Bom.C.R. 37 and in particular paragraphs 9 to 12, 39, 42 to
49, 52, 55, 57, 58, 61 to 63 and 66. He submits that the university has
ample powers to cancel the approval granted to any of the Lecturer to
whom the university had granted approval earlier if any fraud is noticed
by the university committed by such Lecturer or any member of the staff
during his recruitment or even thereafter.
37. Learned counsel for the University submits that the
petitioner was admittedly charged for obtaining caste certificate based
on forged document. The petitioner was a resident of Village Valve,
District Sangli. He had however obtained caste certificate from the
Tehsildar, Miraj. He submits that the petitioner was appointed as a
Lecturer in the year 1968 and was granted approval in the year 1972.
Till 1994, the petitioner did not claim that he belonged to Schedule
Caste. He submits that the School Leaving Certificate produced before
the Tehsildar by the petitioner was falsified by the letter of the Head
Master of the said school stating that no such School Leaving Certificate
was issued by the said school to the petitioner.
38. It is submitted that the petitioner had disowned the said
School Leaving Certificate after obtaining the caste certificate from the
Tehsildar. He submits that the petitioner was beneficiary of the said
caste certificate and thus could not be allowed to disown the said School
Leaving Certificate produced before the Tehsildar when the caste
certificate was obtained by the petitioner. It is submitted that another
teacher of the same school had made a statement that he had forged the
School Leaving Certificate and had sold the said certificate to the
petitioner. It is submitted by the learned counsel that merely because the
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petitioner was acquitted in the criminal proceedings, the same was not
relevant for the purpose of taking any decision in the enquiry
proceedings which are in the nature of civil proceedings. He submits
that the nature of the evidence in the criminal proceedings is different
than the nature of the enquiry in the enquiry proceedings.
39. It is submitted by the learned counsel for the University that
cancellation of the approval by the University which was granted to the
petitioner earlier was based on cancellation of the caste certificate issued
by the Tehsildar. He submits that the petitioner was fully aware that the
caste certificate issued to the petitioner was already cancelled by the
Tehsildar, Miraj. The petitioner was also aware about the factum of
enquiry being conducted by the University against the petitioner. He
submits that the enquiry committee had rightly considered the order of
Tehsildar as well as the complaint filed by the Phule Ambedkar Shahu
Teachers' Association and other material. He submits that the petitioner
had not challenged the order passed by the Tehsildar, Miraj cancelling
the caste certificate.
40. In so far as the issue raised by the petitioner that the entire
procedure was in violation of the principles of natural justice is
concerned, it is submitted by the learned counsel for the University that
since no prejudice of whatever nature was caused to the petitioner as
canvassed, the action taken by the University cannot be questioned or
set aside. In support of this submission, learned counsel for the University
placed reliance on the judgment of the Supreme Court in the case of
Dharampal Satyapal Limited Vs. Deputy Commissioner of Central
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Excise, Gauhati and Ors., reported in (2015) 8 SCC 519 and in
particular paragraph 45 thereof.
41. It is submitted by the learned counsel for the University that
in view of the fradulent conduct of the petitioner in obtaining a caste
certificate by producing fabricated documents before the Tehsildar, the
petitioner was not even otherwise entitled to be granted any relief by
the Tribunal or by this Court. In support of this submission, learned
counsel placed reliance on the judgment of this Court in the case of
Seema Dattatraya Phuge Vs. Municipal Commissioner, reported in
2013 (5) Mh.L.J. 814 and in particular paragraphs 14 to 16 and 18 to
20 thereof.
42. Mr.Ingale, learned counsel for the respondent no.3, the
Principal of the College invited my attention to the prayers in the appeal
filed by the petitioner before the University and College Tribunal. He
submits that the petitioner had not challenged the order of Tehsildar
before the University tribunal. He submits that the petitioner thus cannot
be allowed to challenge the order of the learned Tehsildar cancelling the
caste certificate for the first time in this writ petition. He submits that
in any event, the said prayers could not have been made in this petition
under Articles 226 and 227 of the Constitution of India before the learned
Single Judge. He submits that the petitioner had already filed his
representation before the Deputy Collector.
43. In so far as the submission of the learned counsel for the
petitioner that the management could not have reverted the petitioner
ppn 21 wp-3352.99 (j).doc
from the post of Principal to the post of Lecturer is concerned, it is
submitted by the learned counsel for the respondent no.3 that it is a
matter on record that the petitioner had accepted the order of reversion
from the post of Principal to the post of Lecturer and had joined the said
post of Lecturer. Upon such acceptance of the order, the petitioner thus
cannot be allowed to challenge the said order of reversion.
44. In so far as the issue raised by the petitioner that the
management could not have terminated the services of the petitioner
without conducting any enquiry under Statute 216(A) framed by the
Shivaji University against the petitioner is concerned, learned counsel
for the management invited my attention to the resolution passed by the
Managing Committee of the respondent no.3 dated 27th October 1995
proposing to conduct a preliminary enquiry about the alleged misconduct
of the petitioner under Statute 216(A).
45. It is submitted that the management could not have
challenged the said directives issued by the University and thus did not
conduct any enquiry under Statute 216(A) though had proposed the
same by passing an appropriate resolution in that regard.
46. Learned counsel appearing for the management placed
reliance on Section 195(3) of the Maharashtra Universities Act, 1994
which prescribes the procedure for mode of recruitment to the post of
Lecturer. He submits that all such appointments made by the college
are subject to the approval of the Vice Chancellor of the Shivaji
University. He submits that Section 196 (3) of the said Act applies to
the appointment of the petitioner. He submits that since the University
ppn 22 wp-3352.99 (j).doc
had granted approval to the appointment of the petitioner and since
University had withdrawn the said approval granted earlier to the
petitioner, the appointment of the petitioner as a Principal or as a Lecturer
could not have been continued by the management of the college. He
submits that the appointment of the petitioner was made by the
management only after approval by the selection committee of the Shivaji
University was granted.
47. It is submitted that the appointment as a Lecturer can be
made only on the recommendation of the selection committee and
approved by the Vice Chancellor. It is submitted that an independent
enquiry was thus not necessary in this matter. It is submitted by the
learned counsel that from the date of appointment of the petitioner as a
Lecturer in the college run by the respondent no.3 till the post of
Principal was advertised by the respondent nos.2 and 3, till 1995, the
petitioner did not apply for change of record regarding caste mentioned
on record of the respondent nos.2 and 3. He submits that admittedly
the petitioner was appointed in the post reserved for open category and
he belonged to the said category. It is submitted that admittedly the post
of Principal was reserved for a Scheduled Caster candidate. The
petitioner had obtained a false caste certificate from Special Executive
Magistrate, Nagpur though he was a resident of Sangli who was not
authorized to issue such caste certificate.
48. It is submitted by the learned counsel that though the
selection committee had asked the petitioner to obtain caste certificate
from Tehsildar, Islampur, the petitioner obtained such caste certificate
ppn 23 wp-3352.99 (j).doc
from Tehsildar, Miraj. He submits that the petitioner had submitted two
forged documents i.e. one School Leaving Certificate obtained from
Vidya Mandir High School and Junior College at Islampur and another
is the caste certificate obtained from Police Patil of his village Dhavali,
Talathi of Dhavali showing that he belonged to Hindu Lingader
(Scheduled Caste). He submits that learned Tehsildar, Miraj on the basis
of the complaint filed by the Phule Ambedkar Shahu Teachers'
Association had rightly cancelled the caste certificate obtained by the
petitioner on producing the forged documents. He submits that even the
said caste certificate was issued on the condition that if any false
information was given by the person in obtaining caste certificate, the
said caste certificate could be cancelled and a criminal action could be
initiated against such person.
49. Learned counsel for the management placed reliance on the
approval letter dated 21st July 1995 issued by the Shivaji University to
the management stating that if any complaint was received in respect
of the said approval, the said approval would be cancelled and
withdrawn. Learned counsel for the management placed reliance on the
judgment of the Division Bench of this Court in the case of Sunil
Gayaprasad Mishra Vs. Rashtra Sant Tukdoji Maharaj University,
reported in 2012 (6) Bom.C.R. 37. Learned counsel for the management
placed reliance on Section 2(34) of the Maharashtra Universities Act,
1994 which provides for definition of "teacher"which would mean the
full time approved Professor, Associate Professor, Assistant Professor,
Reader, Lecturer, Librarian (Principal, Deputy or Assistant Librarian and
Documentation Officer in the University and College Librarian) Director
ppn 24 wp-3352.99 (j).doc
or Instructor of Physical Education in any university department,
conducted, affiliated or antonymous college, antonymous institution or
department or recognised institution in the university.
50. It is submitted that mere approval granted to the appointment
of the petitioner as a teacher by the Shivaji University would not give
him any unfettered right. It is submitted by the learned counsel that
such approval granted by the Vice Chancellor can be withdrawn by the
Shivaji University if it is found that such teacher had committed a fraud
in obtaining such approval from the University. He submits that if such
approval granted by the Shivaji University is ultimately withdrawn, such
teacher ceased to be a teacher and thus no enquiry was required to be
initiated against an employee who ceased to be an employee. It is
submitted by the learned counsel that Shivaji University had withdrawn
the approval granted to the appointment of the petitioner and that the
management has not terminated the services of the petitioner but had
relieved him from service.
51. It is submitted by the learned counsel that merely because
the petitioner was acquitted in the criminal proceedings, such employee
is not absolved in the disciplinary proceedings. In support of this
submission, learned counsel for the management placed reliance on the
judgment of the Calcutta High Court in the case of Ajit Kumar Nag
Vs. General Manager (PJ), Indian Oil Corporation, Ltd. & Ors.,
reported in 2004 (4) L.L.N. 512 and more particularly paragraph 24
thereof. Reliance is also placed on the judgment of the Madras High
Court in the case of Joint Director of School Education (Personnel),
Chennai Vs. N. Venugopal and Registrar, Tamil Nadu Administrative
ppn 25 wp-3352.99 (j).doc
Tribunal, Chennai, reported in 2006 (2) L.L.N. 281 and in particular
paragraph 14 thereof.
52. Learned counsel for the management placed reliance on the
judgment of the Supreme Court in the case of Lalit Popli Vs. Canara
Bank & Ors., reported in (2003) 3 SCC 583 and in particular paragraph
16 in support of the submission that approach and objective in criminal
proceedings and disciplinary proceedings are altogether distinct and
different. The standard of proof, the mode of enquiry and the rules
governing the enquiry and trial are conceptually different.
53. Mr.Bandiwadekar, learned counsel for the petitioner in
rejoinder to the submissions made by the learned counsel for the
management submits that no affidavit-in-reply has been admittedly filed
by the college and the management in these proceedings. The letter
dated 21st July 1995 relied upon by the learned counsel for the
management was not part of the record.
54. In so far as the caste certificate issued by the Special
Executive Magistrate, Nagpur is concerned, it is submitted that the said
caste certificate was not subject matter of any enquiry by any authority.
The petitioner had produced the relevant certificate in the year 1994
which was accepted by the College and based on such certificate, the
management had made entry in their record. The management did not
raise any objection about such certificate before appointment of the
petitioner as a Principal. He submits that the caste certificate dated 15 th
May 1995 does not refer to any document alleged to have been submitted
by the petitioner before the learned Tehsildar viz. The School Leaving
ppn 26 wp-3352.99 (j).doc
Certificate alleged to have been issued by the Vidya Mandir High School
and Junior College, Islampur which school was not attended by the
petitioner. He submits that the petitioner has disputed that the petitioner
had produced any such School Leaving Certificate alleged to have been
issued by the Vidya Mandir High School and Junior College, Islampur.
55. Learned counsel invited my attention to the finding recorded
by the University and College Tribunal holding that at that stage, one
could not say that the petitioner herein had forged the said School
Leaving Certificate alleged to have been issued by the Vidya Mandir
High School and Junior College, Islampur. He submits that it is thus
clear that on the basis of a finding alleged to have been rendered by the
enquiry committee appointed by the Shivaji University that though the
petitioner had forged the said School Leaving Certificate, the approval
already granted to the appointment of the petitioner could not have been
recalled by the Shivaji University, the fact remains that the petitioner
was already acquitted in the said criminal proceedings.
56. Learned counsel appearing for the petitioner submits that
there is no dispute about the proposition that the nature of the enquiry in
the criminal proceedings and in the departmental proceedings is
different. He submits that in the departmental enquiry, the matter is
decided on the basis of preponderance of probabilities. However, since
no departmental enquiry was held by the management in this case,
admittedly no action of termination or reversion could be taken by the
management against the petitioner. He submits that disciplinary action
against the petitioner could be taken only by the management and not
ppn 27 wp-3352.99 (j).doc
by the Shivaji University. It is submitted that the enquiry committee
appointed by the Shivaji University could not have held any disciplinary
enquiry proceedings nor held any such disciplinary enquiry against the
petitioner.
57. In so far as the submission made by the learned counsel for
the Shivaji University is concerned, Mr.Bandiwadekar, learned counsel
for the petitioner in rejoinder submits that admittedly no copy of the
enquiry report submitted by the enquiry committee appointed by the
Shivaji University was served upon the petitioner before taking any
action against the petitioner. No such enquiry committee report thus
could be relied upon by the Shivaji University before cancelling the
approval granted to the appointment of the petitioner. He submits that
the Shivaji University could not point out before the University and
College Tribunal that under which provision of the Maharashtra
Universities Act, 1994, the Shivaji University had appointed such
enquiry committee for considering the complaint made by the Phule
Ambedkar Shahu Teachers' Association and for the purpose of
withdrawal of the approval granted to the appointment of the petitioner.
58. In his alternate submission, it is submitted by the learned
counsel for the petitioner that the said fact finding enquiry committee
appointed by the Shivaji University alleged to have visited the Vidya
Mandir High School and Junior College, Islampur and had alleged to
have collected the evidence from the said school to ascertain whether
the said School Leaving Certificate alleged to have been submitted by
the petitioner was issued by the said school or not. However, no such
material collected by the said fact finding enquiry committee was
ppn 28 wp-3352.99 (j).doc
admittedly furnished to the petitioner. No opportunity including right
to cross examine was given to the petitioner to deal with such material
alleged to have been collected by the said committee behind the back of
the petitioner.
59. It is submitted that the entire enquiry proceedings initiated
by the Shivaji University were not only without jurisdiction but the
same were in violation of the principles of natural justice. He submits
that since the criminal complaint was already pending at the material
time in which the finding on the allegation of fabrication could be
rendered, the enquiry committee could not have taken the task of
rendering such finding on fabrication and that also without giving any
opportunity of being heard to the petitioner. He submits that in any
event, the scope of such enquiry was very limited. Enquiry committee
had to verify the authenticity of the cast certificate submitted by the
petitioner. There was no enquiry contemplated for withdrawal of
approval granted to the appointment of the petitioner.
60. It is submitted by the learned counsel for the petitioner that
a perusal of the said report of the enquiry committee now placed on
record also indicates that there was difference of opinion between the
majority of the members of the enquiry committee and the minority
member. The Shivaji University had produced the full text of the said
report of the enquiry committee before the University and College
Tribunal. Learned counsel for the petitioner placed reliance on Statute
195 framed by the Shivaji University and more particularly clauses 'D'
and 'E' and would submit that under the said statute, there was no
provision conferring power on the University to cancel the approval
ppn 29 wp-3352.99 (j).doc
already granted. There was only a procedure for pre-appointment
approval by the University. Post appointment approval was provided
only for the purpose of change in staff every year.
61. Learned counsel for the petitioner distinguishes the
judgment of the Division Bench of this Court in the case of Sunny Sunil
Gayaprasad Mishra (supra) on the ground that in the said matter,
employee had challenged the order passed by the Vice Chancellor of
withdrawing and cancelling the approval granted to the appointment of
the said employee. The employee in that matter was prosecuted in a
criminal case and was convicted. In appeal filed by the employee, the said
order of conviction was partly modified. One of the punishment awarded
was confirmed. The appointment granted to the employee was ad-hoc
appointment and not permanent. Show cause notice was issued to the
said employee calling upon him to show cause as to why his approval
should not be withdrawn. It is submitted that in this case, the petitioner
was acquitted when the order was passed by the University. No show
cause notice was issued to the petitioner as to why the approval granted
by the University should not be cancelled. No enquiry for cancellation of
the appointment of the petitioner was conducted. No order was passed
by the Vice Chancellor in this case. The order was passed based on the
resolution passed by the Management Council of the University. The
directions were issued by the Chancellor in the case before the Division
Bench. However, no such directions were issued by the Chancellor or
Vice Chancellor in this case.
62. Learned counsel for the petitioner placed reliance on
Section 9 and 10 of the Maharashtra Universities Act, 1994 and would
ppn 30 wp-3352.99 (j).doc
submit that the powers of the Chancellor and other Officers of the
University described in those two provisions do not include any
power to revoke the approval to the appointment already granted to any
of the employees. Reliance is also placed on Section 14 of the
Maharashtra Universities Act, 1994 which provides for powers and duties
of the Vice Chancellor, Section 24 which provides for authorities of the
University and Section 28 which provides for powers and duties of
the Management Council. He submits that the Vice Chancellor has not
passed any order of withdrawal of the appointment of the petitioner. No
notice had been given by the Vice Chancellor. No action has been taken
by the Vice Chancellor in this case. The powers of the Management
Council are not at par with the powers of the Vice Chancellor. He
submits that the post of the Principal is admittedly kept vacant by the
respondent nos.2 and 3 after termination of the petitioner from the said
post.
63. It is submitted by the learned counsel for the petitioner on
instructions that if the impugned order passed by the University and
College Tribunal is set aside, the petitioner will not claim any back
wages which the petitioner is otherwise entitled to from the date of
termination till his superannuation i.e.31st December 2004. The petitioner,
however, shall be granted notional benefit including the pension which
shall be fixed on such notional benefit. He submits that the petitioner
would be entitled to pension from 1st January 2005 on the basis of the
entire period of service to be computed till 31st December 2004.
Learned counsel placed reliance on Statute 217(4) which provides for an
action which can be taken by the University on conviction or acquittal
ppn 31 wp-3352.99 (j).doc
of an employee. He submits that the action taken by the University is
much beyond the action permissible under the provision against the
petitioner. Learned counsel appearing for the petitioner distinguishes the
judgments relied upon by the learned counsel for the management as
well as the Shivaji University on the ground that none of those judgments
were applicable to the facts of this case and clearly distinguishable in the
facts of this case.
64. Mr.Borkar, learned counsel appearing for the Shivaji
University produced a portion of the enquiry committee report which
was submitted by the enquiry committee before the University and
College Tribunal. He submits that the said committee was constituted as
per the order passed by the Vice Chancellor. He submits that in the said
report, the committee had considered the complaint received from the
Phule Ambedkar Shahu Teachers' Association and various other facts
which were brought to the notice of the enquiry committee. The enquiry
committee recommended the action against the petitioner which was
also based on the order passed by the Tehsildar cancelling the earlier
caste certificate issued in favour of the petitioner. He submits that there
was no difference of opinion amongst the members of the enquiry
committee on merits of the enquiry.
65. Mr.Bandiwadekar, learned counsel appearing for the
petitioner, however, submits that in the said enquiry committee report,
there was a difference of opinion between the members of the enquiry
committee so also on the conclusion drawn by the enquiry committee.
He submits that in any event, copy of such enquiry committee report
was not furnished to the petitioner.
ppn 32 wp-3352.99 (j).doc
REASONS AND CONCLUSIONS :-
66. The question that arises for consideration of this Court is :
(a) whether the Tehsildar had powers to recall his earlier order issuing
caste certificate in favour of the petitioner under any of the provisions of
law and if he had any such power, whether principles of natural justice
was followed by him while cancelling the earlier order of issuance of
caste certificate.
(b) Whether the University could have conducted any enquiry to
decide the validity of the caste certificate submitted by the petitioner and
could have recalled the approval granted to the appointment of the
petitioner as a Lecturer in English though the allegations against the
petitioner was that he had submitted a false caste certificate while seeking
an appointment to the post of Principal in the college.
(c) Whether an appropriate action against the petitioner could have
taken for termination of his services only by the management after
conducting the full fledged enquiry under Statutes 216(A) or 217(A) of
the statutes framed by Shivaji University.
(d) Whether Shivaji University ought to have informed the petitioner
by notice, the purpose and the nature of enquiry proposed to be
conducted by the University against the petitioner and if not informed
about the nature and purpose of the enquiry, an action of termination of
services of the petitioner could be considered as illegal being in violation
of principles of natural justice rightly taken by the University against the
petitioner.
67. A perusal of the order passed by the tribunal indicates that
the tribunal has held that it was an admitted fact that the petitioner
ppn 33 wp-3352.99 (j).doc
showed his caste as Hindu Mali-Lingayat when he was serving as a
teacher on the date of confirmation of his services with effect from 23 rd
July, 1971 till 4th April, 1994. The petitioner herein had produced a caste
certificate dated 24th March, 1994 issued by the Special Execution
Magistrate, Nagpur before the Principal, G.A. College of Commerce,
Sangli and accordingly an entry in his service book was made by the
Principal on 4th April, 1994 entering the caste of the petitioner as Hindu
Lingader which is recognized as scheduled caste. The tribunal also
observed that it was an admitted fact that the petitioner had studied in
Zilla Parishad School, Dhavali, Taluka Walwa, District Sangli upto 7 th
standard and his caste was shown as Hindu Lingayat in the school leaving
certificate issued by the said school.
68. It is held that the petitioner had not disputed that his caste
was shown as Hindu Lingayat in the said school leaving certificate. It is
held that the the petitioner for the first time had obtained the certificate
showing the change in his caste certificate from Hindu Lingayat to Hindu
Lingader by obtaining a caste certificate from Dr.Padole, Special
Executive Magistrate, Nagpur on 24th March, 1994 and produced the
same before the college and got his caste entered in the service book
maintained by the college from Hindu Mali to Hindu Lingader on 4th
April, 1994.
69. In the impugned order, the tribunal held that it was clear
from the book published by the Government of Maharashtra that Hindu
Lingayat caste was from open category and Hindu Lingayat was
schedule caste category, whereas the person belonging to Hindu Lingader
ppn 34 wp-3352.99 (j).doc
belonging to the scheduled caste category. The petitioner however, had
produced a letter from the Joint Director, Social Welfare Department to
the Desk Officer of Social Welfare, Cultural & Sports Department,
Mantralay, Mumbai in which it was stated that the caste Lingader and
Lingayat were the same. The tribunal held that the said letter produced by
the petitioner from the Joint Director, Social Welfare Department had no
statutory force and thus no reliance thereon could be placed by the parties
including the tribunal. Based on this document, the tribunal has rendered
a finding that the petitioner herein was Hindu Lingayat and belonging to
open category and was not scheduled caste candidate.
70. Insofar as the order passed by the Tehsildar on 27 th October,
1995, cancelling the earlier caste certificate issued by him on 15 th May,
1995 in favour of the petitioner declaring the petitioner as if he belonging
to Hindu Lingader is concerned, it is held by the tribunal that the caste
certificate issued by the Tehsildar on 15th May, 1995 showed that the
Tehsildar, Miraj had relied upon the certificate given by the Village
Officer, Sangli dated 24th July, 1993 and the extract of service book of the
petitioner and the certificate about the caste of the son of the petitioner
dated 25th July, 1973 and school leaving certificate of the petitioner. It is
held by the tribunal that Dr.Padole, Special Executive Magistrate,
Nagpur, who had issued a caste certificate to the petitioner on 24 th
March, 1994, had no authority to issue such caste certificate.
71. Reliance is placed on section 21 of the Code of Criminal
Procedure and it is held that the caste certificate issued by the Special
Executive Magistrate appointed under section 21 of the Code of Criminal
ppn 35 wp-3352.99 (j).doc
Procedure should not be treated as valid for the purpose of recruitment.
The tribunal held that the entry changed of the caste of the petitioner
from Hindu Lingayat to Hindu Lingader was illegal. The tribunal held
that the petitioner did not give any reason as to why he had obtained the
certificate from Special Executive Magistrate, Nagpur when he was the
resident of Sangli District. The petitioner could not produce his school
leaving certificate from Zilla Parishad School, Dhavali and from
Karmaveer Bhaurao Patil Vidyalaya, Bagani, Taluka Walwa, in which
the caste of the petitioner was shown as Hindu Lingayat.
72.
A perusal of the order passed by the Tribunal indicates that
the tribunal has held that the post of Principal in N.D. Patil Night
College, Sangli was reserved for scheduled caste category. The petitioner
had not claimed any facility available to the scheduled caste candidate
during his service till the post of Principal was advertised as reserved for
scheduled caste. The petitioner had no caste certificate from the
competent authority showing that he was from scheduled caste category
till he gave his interview before the duly constituted selection committee.
It is held that the petitioner started claiming himself as scheduled caste
candidate in order to get the post of Principal and therefore, firstly he
approached Special Executive Magistrate, Nagpur and got change of
entry in his service book. The selection committee did not rely upon that
certificate and directed the petitioner to produce a caste certificate from
the competent authority. The petitioner thereafter approached the
Tehsildar, Miraj.
73. It is held by the tribunal that the approach of the petitioner to
the Tehsildar, Miraj for issuance of the caste certificate was not in
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accordance with the guidelines framed by Social Welfare Department for
issuance of caste certificate. It is held that it was an admitted fact that the
school leaving certificate of Vidya Mandir High School and Junior
College, Islampur was forged document. The Headmaster of that school
had given a letter dated 25th August, 1995 to the effect that the petitioner
had never studied in the said school and that the said school leaving
certificate was not issued by it. The tribunal accordingly has rendered a
finding that the petitioner had studied upto S.S.C. In Karmaveer Bhaurao
Patil Vidyalaya, Bagani, Taluka Walwa, District Sangli. There was no
doubt that the school leaving certificate of Vidya Mandir High School
and Junior College, Islampur was a forged document. The tribunal
however,made it clear that the criminal case against the petitioner was
pending in respect of the charges of forgery and thus at this stage, it need
not to state that the petitioner had forged the said school leaving
certificate of Vidya Mandir High School and Junior College, Islampur. It
is held by the tribunal that the said school leaving certificate alleged to
have been issued by Vidya Mandir High School and Junior College,
Islampur was before the Tehsildar and was considered by him while
cancelling the earlier caste certificate.
74. Insofar as the submission made by the petitioner before the
tribunal that the Tehsildar had no power to cancel the caste certificate
dated 15th May, 1995, it is held by the tribunal that the tribunal could not
sit over the order of Tehsildar cancelling the caste certificate and had no
jurisdiction to set aside the order of Tehsildar. The petitioner himself has
produced various documents along with a list before the tribunal.
ppn 37 wp-3352.99 (j).doc
75. Insofar as the issue raised by the petitioner before the
tribunal that there was no provision in the Maharashtra Universities Act,
1994 or Statutes or Ordinances giving power to the university to
withdraw the approval once granted to the appointment of any employee
including the Lecturer or that there was no power granted to the
Management Council to withdraw the approval given to the Lecturer is
concerned, the tribunal has held that the teacher or the principal cannot be
appointed unless the Vice Chancellor gives the approval and as per
section 16 of the General Clauses Act, 1897, the Vice Chancellor has
power to withdraw the approval since the power to appoint includes
power to dismiss. The tribunal placed reliance on the judgment of the
Allahabad High Court reported in 1987 Allahabad Law Journal , 950, in
which it was held that the Executive Council of a university has an
implied power to dispense with the services of an Engineer. It is held that
the Vice Chancellor had thus power to withdraw the approval granted to
the appointment of the petitioner as Lecturer in the year 1972.
76. Insofar as the submission of the learned counsel for the
petitioner that the impugned order passed by the university withdrawing
the approval granted to the petitioner as far back as on 15 th September,
1972 after lapse of about 26 years is concerned, the tribunal considered
the complaint made by Phule, Ambedkar and Shahu Teachers Association
alleging that the petitioner herein had produced a forged and false caste
certificate and had secured the appointment in the post of Principal based
on such false caste certificate. The tribunal has also placed reliance on the
order passed by Shivaji University appointing a committee of three
members to make an enquiry about the caste certificate of the petitioner
ppn 38 wp-3352.99 (j).doc
and the notices given by the said committee to the said petitioner and
other witnesses. The said committee recorded the statement of the
Principal of the management on 9th October, 1995, of the Honorary
Secretary of the management on 9th November, 2015. The said committee
also had sent a notice to the said association.
77. It is held by the tribunal that the said committee firstly made
oral enquiry with the petitioner and then issued a notice on 14 th
November, 1995 to the petitioner to give his statement on 17 th November,
1995. The statement of the petitioner was recorded on 17 th November,
1995 and he had signed the said statement. It is held that in the said
statement made by the petitioner, he had admitted that he had studied
upto 7th standard at Dhavali and had studied upto to S.S.C. Standard at
Bagani, Taluka Walwa, District Sangli. He stated in his statement that his
caste was Hindu Lingayat when he was admitted in the school. He stated
in his statement that he has brought the caste certificate from Dr.Padole,
Special Executive Magistrate, Nagpur showing that his caste is Hindu
Lingader. He also admitted that he had not applied to Tehsildar, Islampur
though his native place was in Walwa Taluka and that he had taken
education at Dhavali and Bagani which were in Walwa talukas and
Islampur was headquarter of Walwa Taluka. The petitioner admitted that
he had given the application to the Tehsildar, Miraj on 15th May, 1995 and
Tehsildar, Miraj gave him the caste certificate on the same day. He also
did not make any complaint against his reversion. He admitted that the
criminal case was registered against him and he was in police custody
from 28th September, 1995 to 5th October, 1995 and the said criminal case
was about forgery of the school leaving certificate and false caste
certificate.
ppn 39 wp-3352.99 (j).doc
78. In the impugned order passed by the tribunal, the tribunal
also held that the said enquiry committee had discussed the issue with the
office bearers of the said association on 17th November, 1995 and
recorded the minutes of that discussion and had prepared a report after
considering the whole record and the statements of various witnesses.
The enquiry committee found that the petitioner had forged the school
leaving certificate and had obtained the false caste certificate. The
managing committee passed a resolution on 7th February, 1996 and
accepted the report of the enquiry committee and took a decision to
withdraw the approval granted to the appointment of the petitioner as a
lecturer, which was given on 15th September, 1972.
79. The university thereafter addressed a letter on 7th March,
1996 to the management of the college about withdrawal of the approval
which was granted to the petitioner by the university. The management
thereafter terminated the services of the petitioner by an order dated 9 th
March, 1996 with effect from 11th March, 1996. The tribunal accordingly
held that the petitioner was given full opportunity to defend his case and
there was no violation of the principles of natural justice. The tribunal
held that it was not necessary to conduct a full fledged departmental
enquiry against the petitioner as the withdrawal of the approval was based
on the basis of the caste certificate, which was subsequently cancelled by
the same Tehsildar. The tribunal held that Shivaji University had rightly
withdrawn the approval granted to the petitioner as a teacher which
action was taken in the interest of the entire educational set up and
students at large. Lastly, the tribunal held that the university had power to
withdraw the approval and the management had legally, validly and
ppn 40 wp-3352.99 (j).doc
properly terminated the services of the petitioner vide an order dated 9 th
March, 1996 with effect from 11th March, 1996 as Shivaji University had
withdrawn the approval granted to the petitioner as a teacher.
80. I shall first decide the issue as to whether order dated 27 th
October, 1995 passed by the learned Tehsildar thereby cancelling the
caste certificate which was granted by the Tehsildar on 15 th May, 1995
was within his jurisdiction and the issue as to whether the petitioner was
granted sufficient opportunity to represent his case before the learned
Tehsildar.
81. It is not in dispute that the petitioner has applied for writ of
mandamus under Article 227 of the Constitution of India in this petition
for quashing and setting aside the order dated 27 th October, 1995 issued
by the Tehsildar, Miraj. It is also not in dispute that when the Shivaji
University initiated an action against the petitioner and till the University
and College Tribunal dismissed the appeal filed by the petitioner, the said
order dated 27th October, 1995 passed by the Tehsildar was neither stayed
by any competent court of law nor the same was even challenged by the
petitioner before any court of law.
82. It is not in dispute that even in the said caste certificate
issued by the learned Tehsildar on 15th May, 1995 certifying that the
petitioner belonged to Hindu Lingader (Schedule Caste) it was mentioned
that in case of any complaint, the said caste certificate could be cancelled.
The said Tehsildar, Miraj who had issued a caste certificate in favour of
the petitioner had received a complaint from the Teachers' Association.
ppn 41 wp-3352.99 (j).doc
Pursuant to the said complaint made by the Teachers' Association
received by the learned Tehsildar, he had issued two notices upon the
petitioner to produce the requisite documents and for the purpose of
giving an opportunity to the petitioner to remain present before the
learned Tehsildar. It was the case of the petitioner that insofar as the
second notice is concerned, though the same was received by the
petitioner before the date of hearing since all the requisite documents
were in the custody of the concerned police station, the same could not be
produced by him before the learned Tehsildar. The petitioner had not
challenged the notice issued by the learned Tehsildar for considering the
complaint made by the Teachers' Association on the ground of his
jurisdiction at that stage. The learned Tehsildar considered the relevant
documents on record and passed a reasoned order thereby cancelling the
earlier caste certificate issued by him on the ground that the petitioner had
obtained the said caste certificate based on the false documents.
83. In my view the learned Tehsildar who had issued a caste
certificate and had made it clear that the same could be cancelled if any
complaint was made, he had power to cancel the earlier caste certificate
obtained by the petitioner based on the false documents. I am thus not
inclined to accept this submission made by the learned counsel for the
petitioner that the learned Tehsildar had no power to cancel the caste
certificate already granted earlier or to recall his own order.
84. Be that as it may, the fact remains that the petitioner did not
challenge the said order dated 27th October,1995, till 9th June, 1999 by
filing any appropriate proceedings. In my view, the challenge to the said
ppn 42 wp-3352.99 (j).doc
order passed by the learned Tehsildar on 27th October, 1995 could not
have been challenged by the petitioner in this petition before the learned
Single Judge. I am inclined to accept the submission made by the learned
counsel for the University and the management that this prayer sought in
prayer clause (c) of the writ petition cannot be entertained by the learned
Single Judge of this court and that also belatedly after about four years
and also the submission that the learned Tehsildar had inherent power to
cancel the earlier caste certificate granted by him, having found that the
said caste certificate was obtained by the petitioner based on the false
documents submitted by the petitioner.
85. There is no dispute that the appointment of the petitioner to
the post of lecturer was made subject to the approval of the University
under the provisions of the statute framed by the Shivaji University. In
the approval granted by the University to the appointment of the
petitioner as a lecturer, it was made clear that in case of any complaint in
respect of the said approval granted by the University, the said approval
could be cancelled. The University had received a complaint from the
Teachers' Association to the effect that the petitioner had submitted false
documents and based thereon had obtained a false caste certificate from
the learned Tehsildar certifying that he belong to the caste Hindu
Lingader (scheduled caste). Based on such caste certificate, the petitioner
had applied for appointment to the post of Principal in the respondent
no.3 college run by the respondent no.2 society.
86. Shivaji University initiated proceedings for conducting an
enquiry into the complaint made by the Teachers' Association and issue a
ppn 43 wp-3352.99 (j).doc
notice to the petitioner to remain present and contest the said enquiry.
The management also had proposed to conduct a separate enquiry statute
216(A) framed by the Shivaji University and had requested the University
to nominate its nominee in the enquiry committee in accordance with the
said provision. The Shivaji University however took a stand that the
management could conduct enquiry under statute 217(A) and not under
statute 216(A) and the enquiry proposed by the management was illegal.
The management had already reverted the petitioner from the post of
Principal to the post of lecturer based on the complaint received from the
Teachers' Association alleging the submission of the caste certificate
obtained by submitting the false documents.
87. It is not in dispute that pursuant to the said notice received
from the Shivaji University, the petitioner appeared before the said
enquiry Committee and his statement was recorded by the said committee
in respect of the caste certificate submitted by the petitioner before the
management before seeking his appointment to the post of Principal. The
petitioner did not challenge the said notice received by the petitioner from
the University calling upon him to attend for the purpose of recording his
statement on the issue of enquiry in respect of the caste certificate
submitted by him and participated therein.
88. Based on the said enquiry conducted by the committee
appointed by the University, the University passed an order thereby
recalling order of granting approval to the appointment of the petitioner
to the post of lecturer. Based on the said order passed by the University,
it is the case of the management that the management relieved the
petitioner from his duties.
ppn 44 wp-3352.99 (j).doc
89. I shall first decide the issue whether Shivaji University had
any power to conduct any enquiry regarding the validity of the caste
certificate submitted by the petitioner to the management.
90. It is clear that the appointment of the petitioner to the post of
lecturer was subject to the approval of the University. The Shivaji
University as a matter of record while granting approval to the said
appointment of the petitioner to the post of lecturer had made it clear on
the letter of appointment itself that if any complaint was received in
respect of the approval, the same could be cancelled. The complaint was
received by the University from the Teachers' Association that the
petitioner had obtained caste certificate based on false document and
management had appointed him to the post of Principal which was
reserved for the reserved category candidates.
91. A perusal of the appeal memo filed by the petitioner before
the University and College Tribunal clearly indicates that the petitioner
was fully aware of various complaints made by the other candidates who
belonged to the schedule caste and had applied for the said post of the
Principal. Various grievances were also reported through the news media
by those professors who had applied for the said post of Principal. Their
Association had also lodged a complaint in respect of the caste certificate
of the petitioner. The learned Tehsildar, Miraj as a result thereof issued a
notice to the petitioner asking him to attend his office alongwith such
documents. In the appeal memo, the petitioner has also admitted that the
Shivaji University also had received such complaint. The petitioner was
admittedly arrested by the local police station on the allegation of
submitting a false caste certificate.
ppn 45 wp-3352.99 (j).doc
92. The Division Bench of this court in case of Sunil
Gayaprasad Mishra (supra) has considered the provisions of the
Maharashtra Universities Act, 1994 and has held that the said Act
presents a united pattern for better governance of Universities and re-
organization of higher education. One of the objects and purpose of the
Act is to ensure proper selection and appointment of teachers as
employees, to take measures for curbing or for eradicating undesirable
non-academic influences detrimental to maintenance of discipline and
standards of education or academic excellence in the Universities and to
provide for matters connected with or incidental thereto. This court also
considered the objects of the Universities provided in section 4 of the
Maharashtra Universities Act, 1994.
93. This Court has held that under the provisions of the said Act,
the Vice-Chancellor shall be the appointing and disciplinary authority for
the university teachers who are appointed on the recommendation of the
selection committee constituted for the said purpose. It is held that vice-
chancellor has been conferred powers which are complied with duty. It is
held that once the Vice-Chancellor who is the Principal officer and in-
charge of academic and executive affairs of the University so also
overseeing and monitoring authority, then it is futile to urge that he does
not possess such powers to revoke the approval granted to the employees
and staff. It is held that if the teacher is convicted of an offence then such
teacher cannot commend any respect from its associate, college and
students and also the staff of the university and affiliated college. If his
activities are questionable, there is a slur on his reputation and his
integrity is in doubt, then, allowing him to enjoy benefits and privileges
ppn 46 wp-3352.99 (j).doc
of an approved teacher would make mockery of the entire enactment. It
would mean that academic environment and atmosphere is permitted to
be polluted by presence of teachers, who can hardly set an example for
others.
94. It is held by this Court that the Vice Chancellor will be
accused of failing in his duty if he takes no action in such matters. He
cannot allow the affiliated college alone to deal with a convicted teacher.
Such teachers roaming in the campus of the University and college pose a
threat to all. It is held that the Vice-Chancellor cannot leave it to the
college because a affiliated college and institution may have its own
reasons in not taking any action or it may in a given case delay taking
necessary action. In these circumstances, the vice-chancellor can
certainly step in and to take corrective measures against the guilty
teacher. There are enough powers conferred in the University and the
vice-chancellor and one such power is to withdraw and cancel the
approval given to the appointment of the errant teacher so that he does
not enjoy the privileges and benefits of an approved teacher. In my view
the judgment of Division Bench of this court squarely applies to the facts
of this case.
95. In my view there is no merit in the submission of the learned
counsel for the petitioner that the committee appointed by the Vice-
Chancellor to look into the allegation of the submission of caste
certificate based on false documents by the petitioner could not go into
such serious charges whose appointment was approved by the University.
The approval of the petitioner was granted by the University. The
ppn 47 wp-3352.99 (j).doc
University has thus ample power to recall the said approval granted by
the University if it was found by the University that such employee or
teacher had committed any such objectionable act relating to his
appointment or committed during the course of conducting his duties
which would affect the institution at large. In my view the University
was thus justified in directing the management not to take any steps to
conduct any separate enquiry under statute 216(A) against the petitioner
and in conducting an enquiry itself.
96. Insofar as judgment of this court in case of Miss Priti Prataprao
Shinde (supra) relied upon by the learned counsel for the petitioner is
concerned, it is held by the Division Bench that once approval was
granted after ascertaining the fact from the management, there can be no
justification for cancelling the approval without issuing any notice to the
teacher concerned and the management. It is not in dispute that the
petitioner was called upon by the enquiry committee for recording his
statement relating to the allegation made in respect of the caste certificate
submitted by him. The petitioner was fully aware of the subject matter of
the said enquiry which was initiated in view of the complaint made by the
Teachers' Association consisting of teachers, some of whom had applied
for the said post of the Principal which was made not only to the
University but also to the Tehsildar as is apparent from the appeal memo
filed by the petitioner. In my view the judgment of Division Bench of
this court tin case of Miss Priti Prataprao Shinde (supra) relied upon by
the learned counsel for the petitioner thus would not assist the case of the
petitioner. In my view since the petitioner was fully aware of the
proposed enquiry conducted by the University even if no specific purpose
ppn 48 wp-3352.99 (j).doc
of enquiry was mentioned in the notice issued by the University, no
prejudice was caused to the petitioner.
97. Insofar as submission of the learned counsel for the
petitioner that the petitioner was not furnished with the copy of the
complaint filed by the Teachers' Association or that he was not issued any
notice by the University indicating the action proposed to be taken
against the petitioner is concerned, a perusal of the record clearly
indicates that the complaint and the representation made by various
teachers against the petitioner were also published in the media as is
apparent from the appeal memo filed by the petitioner. The petitioner
was asked various questions by the enquiry committee pertaining to the
caste certificate submitted by the petitioner and based on the complaint
received by the university. The petitioner was thus fully aware of the
nature of the enquiry being conducted by the University. There is thus no
merit in this submission of the learned counsel for the petitioner.
98. There is no dispute that the petitioner was a resident of
Village Walva, District Sangli. The petitioner was appointed as a lecturer
in the year 1968 and was granted approval in the year 1972 by the
University. There is no dispute that the petitioner was appointed as
lecturer in the year 1968 as an open category candidate. Till the year
1994, the petitioner never made any claim that he belonged to schedule
caste and that he was wrongly appointed as a lecturer in the year 1968 in
the open category. The petitioner took all the benefits as an open category
candidate till the year 1994.
ppn 49 wp-3352.99 (j).doc
99. It appears that the petitioner was promoted as a Vice-
Principal w.e.f. 1st July, 1989 under an order issued by the Principal of
College and acted as a Vice-Principal till 24th July, 1975. It was the case
of the petitioner before the University and College Tribunal that the
petitioner belonged to Hindu Lingayat sect and that the people of the sect
of the petitioner were also known and recognized Hindu-Lingader. He
came across the pamphlet published by Dr.L.V.Padole, Nagpur for the
Lingayat sect in Maharashtra explaining therein the origin, principles,
diksha-vidhi etc. of the Lingayat sect and its inclusion in the schedule
caste. The said Dr.L.V.Padole assured the petitioner that the caste
certificates issued from his office were legal and valid as held by the
Supreme Court, that the Special Executive Magistrates had been
authorized to issue it.
100. According to the petitioner, he applied to Dr.L.V.Padole for
caste certificate alongwith caste certificate issued to him by the Police-
Patil of his village Dhavali, Talathi of Dhavali, Sarpanch of
Grampanchayat, Dhavali and the President of Vidarbh Pradeshik Basava
Samiti, Nagpur. On the basis of those certificates, the petitioner obtained
his caste certificate from the Special Executive Magistrate, Nagpur on
24th March, 1994. The petitioner thereafter submitted an application to the
Principal of the respondent no.3 college alongwith photocopy of the said
caste certificate on 4th April, 1994 for getting his caste entered in his
service book as Lingader. The Principal of the respondent no.3 college
added the remark alongwith the 'Lingader' in the service book of the
petitioner as his caste on 4th April, 1994.
ppn 50 wp-3352.99 (j).doc
101. It was the case of the petitioner that however at the time of
his interview for the post of Principal, he was informed by the
management that for his claim of caste, he should submit caste certificate
issued by the Taluka Executive Magistrate. The Tehsildar issued him a
caste certificate on 15th May, 1995 on the basis of certificate issued by the
Village Officer of Sangli and the entry in his service book and none other
documents. It was the case of the petitioner that he had never produced
any school leaving certificate of the school Vidya Mandir High School
and Junior College, Islampur certifying the caste of the petitioner as
schedule caste.
102. A perusal of the impugned order passed by the University
indicates that the university had cancelled the approval granted to the
petitioner to the post of lecturer on the basis of the cancellation of the
caste certificate issued by the Tehsildar and also on the basis of the
factum of the enquiry committed by the University against the petitioner.
Admittedly the said order of Tehsildar cancelling the earlier caste
certificate was not stayed and/or set aside by any competent court of law
when the University considered the said order passed by the Tehsildar. I
am thus not inclined to accept the submission of the learned counsel for
the petitioner that the University could not have considered the order
passed by the learned Tehsildar cancelling the caste certificate.
103. Insofar as the judgment of Supreme Court in case of
Madhuri Patil vs. Additional Commissioner (supra) relied upon by
Mr.Bandivadekar, learned counsel for the petitioner in support of the
submission that the validity of caste certificate could be decided only by
ppn 51 wp-3352.99 (j).doc
the caste scrutiny committee and could not be considered by the
University is concerned, in my view since the order passed by the learned
Tehsildar cancelling the caste certificate was justified in the facts and
circumstances of this case, the university was not prevented upon relying
upon the said order passed by the Tehsildar while taking an action of
revocation of approval granted to the petitioner to the post of lecturer.
The judgment of Supreme Court in case of Madhuri Patil (supra) does
not assist the case of the petitioner. The judgment of this court in case of
Daulat Dhana Mali (supra) also does not assist the case of the petitioner.
104.
A perusal of the impugned order passed by the University
and College Tribunal indicates that it was an admitted fact that the
petitioner had studied in Zilla Parishad School, Dhavali, Taluka Walva,
District Sangli upto 7th standard and his caste was shown as Hindu
Lingayat in school leaving certificate forming part of the record before
the university and college tribunal. The petitioner had not disputed that
his caste was shown as Hindu Lingayat in the school leaving certificate.
The petitioner had obtained his different caste certificate showing Hindu
Lingader by obtaining the caste certificate from Dr.Padole Special
Executive Magistrate. The petitioner had studied upto SSC in Karmaveer
Bhaurao Patil Vidyalay, Bagani, Tal. Walwa, Dist. Sangli. Even the said
school leaving certificate shows the caste of the petitioner as Hindu
Lingayat. The petitioner had not disputed those two school leaving
certificates.
105. Before the tribunal, the petitioner had produced one book
published by the Government of Maharashtra in which the caste Hindu
ppn 52 wp-3352.99 (j).doc
Lingayat was shown as open category in appendix I and Hindu Lingader
was shown as schedule caste. The tribunal accordingly rendered
independent finding considering the documents on record and also the
book published by the Government of Maharashtra and has held that the
petitioner was Hindu Lingayat and was from the open category and was
not schedule caste. The tribunal accordingly held that the caste certificate
issued by the Special Executive Magistrate appointed under section 21 of
the Criminal Procedure Code cannot be considered as valid for the
purpose of recruitment of the entry of change of caste of the petitioner
from Hindu Lingayat to Hindu Lingader in the service book and the same
was illegal.
106. The tribunal has also rendered a finding that the petitioner
did not produce his school leaving certificate from the Zilla Parishad,
Dhavali and from Karmaveer Bhaurao Patil Vidyalay, Bagani, Tal.Walva
in which the caste of the petitioner was shown as Hindu Lingayat. The
petitioner also could not show any reason as to why he approached
Tehsildar, Miraj for caste certificate instead of approaching Tehsildar,
Walva Taluka, Dist.Sangli though he was resident of that Taluka. The
Tehsildar, Miraj while cancelling his caste certificate dated 15 th May,
1995 gave a direction to lodge a criminal complaint against the petitioner
as he had produced forged documents. Accordingly the complaint was
filed against the petitioner in the Astha Police Station and an offence was
registered under sections 467, 468, 469, 471 and 420 of Indian Penal
Code. The petitioner was arrested on 29th September, 1995 and was in
police custody from 30th September, 1995 to 4th October, 1995.
ppn 53 wp-3352.99 (j).doc
107. The tribunal also considered the fact that the post of the
Principal in N.D.Patil Night College, Sangli was reserved for schedule
caste category. The petitioner had not claimed any benefits or rights of
schedule caste during his service till the post of Principal was advertised
as reserved for schedule caste. The petitioner started claiming as schedule
caste candidate only in order to get the post of the Principal and obtained
such false certificate from various authority. The tribunal also rendered
the finding that the approach of the petitioner to obtain caste certificate
from Tehsildar Miraj was not as per guidelines issued by Social Welfare
Department for issuance of caste certificate.
108. A perusal of the said order passed by the tribunal indicates
that the College Tribunal has also considered the endorsement made on
the caste certificate which was issued by the Tehsildar on 15 th May, 1995
that the Tehsildar had made entries about the documents relied upon by
the petitioner on the first page i.e. certificate of village officer, extract of
service book of the petitioner and on the back of that certificate there
were entries of these two documents plus the school leaving certificate of
the petitioner. In my view the tribunal has rightly disbelieved the case of
the petitioner that he had not produced the school leaving certificate from
Vidya Mandir High School and Junior College, Islampur before Tehsildar.
In my view, the only beneficiary of the caste certificate applied by the
petitioner and that also before the wrong officer was only the petitioner
and not the management or any other teacher who had applied for the said
post of Principal. The learned counsel for the petitioner could not justify
this action on the part of the petitioner even in this court during the course
of his lengthy arguments.
ppn 54 wp-3352.99 (j).doc
109. The tribunal in my view has rightly rendered a finding that
there was no doubt that the school leaving certificate of Vidya Mandir
High School and Junior College, Islampur in which the petitioner had
never studied was a forged document. The university tribunal has also
considered various admissions made in the statements made by the
petitioner before the enquiry committee of the university on 17 th
November, 1995. The petitioner had signed on that statement.
110. A perusal of the record indicates that the petitioner had
admitted before the enquiry committee in the said statement that he had
studied upto 7th standard at Dhavali and upto SCC at Bagani, Taluka
Walva, District Sangli. He specifically stated that his castes was Lingayat
when he was admitted in the school and higher school. He had obtained
caste certificate from Dr.Padole Special Executive Magistrate, Nagpur
showing his caste as Lingader. He had admitted before the committee
that he had not applied before Tehsildar, Islampur for caste certificate
though his native place was Walva Taluka and though he had taken
education at Dhavali and Bagani which was in Walva Taluka having
headquarter at Islampur. The petitioner also admitted that he had given
application to Tehsildar Miraj on 15th May 1995 and obtained the caste
certificate from the said Tehsildar Miraj on the same day.
111. A perusal of the impugned judgment delivered by the
University Tribunal indicates that the tribunal has rendered a very
detailed and reasoned judgment recording reasons dealing with each and
every submission made by the parties, has considered the evidence on
record and after following the judgments of Supreme Court and this court
has recorded various findings against the petitioner.
ppn 55 wp-3352.99 (j).doc
112. The next question that arises for consideration of this court is
whether any prejudice was caused to the petitioner for alleged non-
compliance of the principles of natural justice by the learned Tehsildar or
by the enquiry committee appointed by the University and whether the
same was proved by the petitioner. In my view in view of the admitted
fact that the petitioner was not the student of Vidya Mandir High School
and Junior College, Islampur and in the record and proceedings of the
Tehsildar, the school leaving certificate of the said school was found on
record with an endorsement made on the caste certificate, it is not
possible to accept the submission of the learned counsel for the petitioner
that such copy of school leaving certificate was not produced by the
petitioner or that his rights were prejudiced in any manner whatsoever for
not allowing him to cross examine any witnesses.
113. It is not in dispute that though the petitioner was resident of
Walva taluka and was asked to submit a caste certificate from the
appropriate authority, the petitioner obtained caste certificate from
Tehsildar Miraj which was altogether a different locality. The petitioner
had admittedly appointed to the post of lecturer in open category. The
petitioner had never applied for the cancellation of the appointment or for
change in his entry in the record of the college in service book as open
category on the ground that the same was wrongly made though he
belonged to a schedule caste. In my view when the post of the Principal
was likely to be vacant, the petitioner obtained a false caste certificate
from the Special Executive Magistrate, Nagpur who had no authority to
issue such caste certificate nor the caste certificate of the Special
Executive Magistrate Nagpur could be relied upon when the petitioner
was working in Taluka Walva, Islampur.
ppn 56 wp-3352.99 (j).doc
114. The petitioner could not convince even before this court as
to why the petitioner had applied for caste certificate before Tehsildar
Miraj when he was resident of Walva. The petitioner also could not
satisfactorily explain as to why he had obtained caste certificate from
Special Executive Magistrate, Nagpur or whether the said Special
Executive Magistrate, Nagpur was authorized to issue any such caste
certificate. In view of the fact that the petitioner made various admissions
before the enquiry committee as highlighted by the University Tribunal
and highlighted by this court in the earlier paragraphs of this judgment, in
my view even if the petitioner was not furnished copy of the complaint
made by the Teachers' Association or the statement recorded by the
University or the management or Teachers' Association etc., no prejudice
has been caused to the petitioner in the facts and circumstances of this
case. The petitioner was fully aware of the complaint made by the
Teachers' Association before the Tehsildar Miraj and also before the
University. Some of such complaints were also published in the media as
is admitted by the appellant in his own appeal memo.
115. The petitioner has not been able to demonstrate even before
this court that any prejudice was caused to the petitioner due to the
university not furnishing copy of the statement made by the other
witnesses or by not giving an opportunity to the petitioner to cross
examine those witnesses or by not specifically mentioning the nature of
enquiry proposed to be conducted by the petitioner in the notice issued by
the university etc. In my view even if the university would have
furnished a copy of the statement of the other witnesses or even would
have given an opportunity to the petitioner to cross examine those
ppn 57 wp-3352.99 (j).doc
witnesses, in view of the various admissions made by the petitioner in
the statement made before the enquiry committee, no different conclusion
would have been drawn by the enquiry committee in view of the admitted
position. In my view since no prejudice of any nature whatsoever was
demonstrated by the petitioner for alleged non-compliance of the
principles of natural justice, the submission of a false certificate obtained
by the petitioner having been proved beyond reasonable doubt, setting
aside of the order of the learned Tehsildar or passed by the Tribunal, by
this court would amount to rewarding the petitioner whose guilt is proved
beyond reasonable doubt by accepting his argument of alleged non-
compliance of principles of natural justice.
116. In catena of decisions, the Supreme Court and this court has
held that the interest of justice demands that the guilty should be
punished and technicalities and irregularities are not allowed to defeat the
ends of justice. It has been held that the principles of natural justice are
but the means to achieve the ends of justice. Unless it is shown that the
non-observance of principles of natural justice has caused prejudice to the
person concerned, for the reason that quashing the order may revive
another order which itself is illegal or unjustified, the court shall not set
aside such order in exercise of writ jurisdiction. In my view since the
petitioner has failed to satisfy that any real prejudice had been caused to
him for the reason that the principles of natural justice were alleged to
have been not complied with, order passed by the learned Tehsildar and
by the university tribunal cannot be set aside on that ground. The
judgment of Supreme Court in case of Ramana D.Shetty (supra) relied
upon by the petitioner would be of no assistance to the petitioner.
ppn 58 wp-3352.99 (j).doc
117. Insofar as submission of the learned counsel for the
petitioner that the services of the petitioner could not have been
terminated by the management on the basis of the order passed by the
university and without conducting full-fledged enquiry against the
petitioner is concerned, in my view there is no merit in this submission of
the learned counsel for the petitioner. The appointment of the petitioner
was subject to the approval of the Shivaji University. Since Shivaji
University had rightly passed an order in the facts and circumstances of
this case and had withdrawn the approval granted to the appointment of
the petitioner to the post of lecturer, the management had rightly relieved
the services of the petitioner on the basis of such order passed by the
university. In my view the management was thus not required to conduct
any independent enquiry before relieving the petitioner from service
under statute 216(A) or under 217(A) as canvassed by the learned counsel
for the petitioner. The management could not have continued the
petitioner in their employment after approval granted to the appointment
of the petitioner was withdrawn by the University.
118. Insofar as statement of the learned counsel for the petitioner
that the services of the petitioner from the post of lecturer could not have
been terminated is concerned, in view of the alleged submission of the
false caste certificate for the post of the Principal is concerned, in my
view this submission of the learned counsel is stated to be rejected. An
employee who was had submitted a false caste certificate and had
obtained benefits based on such false certificate submitted by him for his
personal gain while applying for the post of Principal and had deprived
the other legitimate candidates who belonged to the schedule caste and
ppn 59 wp-3352.99 (j).doc
were qualified for the said post of Principal, the petitioner could not have
been allowed to continue in the employment even as a lecturer.
119. Insofar as submission of the learned counsel for the
petitioner that the petitioner could not have been reverted to the post of
professor from the post of Principal by the management without
conducting any enquiry is concerned, in my view there is no merit in this
submission of the learned counsel for the petitioner. The petitioner had
accepted the order or reversion without any protest. In any event since
the petitioner had submitted a false caste certificate and had taken
advantage on the basis of such false certificate and was appointed in the
post of Principal which was reversed for schedule caste candidate though
the petitioner was a open category candidate, the management was
justified in reverting the petitioner to the post of professor and thereby
relieving him from his service based on the order passed by the
University. In my view there is no substance in the submission of the
learned counsel for the petitioner that the petitioner could not have been
reverted to the post of professor without conducting any enquiry under
statute 196(2)(a) framed by the Shivaji University in the facts and
circumstances of this case.
120. Insofar as submission of the learned counsel for the
petitioner that the university tribunal had not framed any issue as to
whether Shivaji University could cancel the approval once granted or that
the cancellation of the approval was contrary to sections 59 and 49 of the
Maharashtra Universities Act, 1994 is concerned, there is no substance in
this submission of the learned counsel for the petitioner. The Division
ppn 60 wp-3352.99 (j).doc
Bench of this court has already held in case of Sunil Gayaprasad Mishra
(supra) that the university has power to revoke the order of approval
granted in case of employee. The submission made by the learned
counsel is contrary to the law laid down by this court.
121. Insofar as submission of the learned counsel for the
petitioner that in view of the acquittal of the petitioner in the criminal
proceedings which were filed based on same charges against the
petitioner and thus the university tribunal ought to have considered the
order of acquittal passed by the criminal court is concerned, in my view
the learned counsel for the management has rightly placed reliance on the
judgment of Madras High Court in case of Joint Director of School
Education (Personnel) (supra), judgment of Supreme Court in case of
Lalit Popli (supra), judgment of Calcutta High Court in case of
Ajitkumar Nag (supra) on the issue that in case of a departmental
enquiry, preponderance and probabilities and some material on record are
necessary to arrive at the conclusion about guilt of the delinquent and
technical rules of evidence are not applicable. The nature of proof
required in a departmental enquiry and what is required in a criminal
proceedings cannot be compared. The judgment relied upon by the
learned counsel for the management squarely applies to the facts of this
case. I am bound by the judgment of Supreme Court in case of Lalit
Popli (supra) I am in agreement with the views expressed by the Madras
High Court in case of Joint Director of School Education (Personnel)
(supra) and judgment of Calcutta High Court in case of Ajitkumar Nag
(supra). Order of acquittal of the petitioner in criminal proceedings
subsequently was of no significance.
ppn 61 wp-3352.99 (j).doc
122. Insofar as submission of the learned counsel for the
petitioner that there was difference of opinion in the opinion expressed by
the enquiry committee inter se is concerned, a perusal of the record
produced before this court does not indicate any different of opinion
insofar as recommendation made by the enquiry committee against the
petitioner is concerned. There is no merit in this submission of the
learned counsel for the petitioner. In my view the impugned judgment
and order by the university and college tribunal is a very detailed and
reasoned judgment. The findings recorded by the university and college
tribunal are not perverse and thus cannot be interfered with by this court
under Articles 226 and 227 of the Constitution of India. Petition is devoid
of merits.
123. I therefore pass the following order :-
(a) Writ Petition No.3352 of 1999 is dismissed;
(b) Rule is discharged;
(c) No order as to costs.
R.D. DHANUKA, J.
