Suresh Renukadas Halhalli vs Bashwaraj Vishwanathappa Dharne ...
2016 Latest Caselaw 6172 Bom

                                                                     WP/10612/2016
                                            1

                    IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD




                                                                              
                             WRIT PETITION NO. 10612 OF 2016




                                                     
                                           AND
                           CIVIL APPLICATION NO. 14073 OF 2016

     Suresh Renukadas Halhalli
     Age 49 years, Occ. Service




                                                    
     as Incharge Principal,
     M.S.Bidwe Engineering College,
     Latur.                                           ..Petitioner

     Versus




                                          
     1. Bashwaraj Vishwanathappa Dharne
                             
     Age 48 years, Occupation Service
     as a Incharge Principal,
     M.S.Bidwe Engineering College,
     Latur.
                            
     2. The Registrar,
     Swami Ramanand Teerth Marathwada
     University, Vishnupuri, Nanded.
      


     3. The Director,
     Board of College and University
   



     Development, Swami Ramanand
     Teerth Marathwada University,
     Vishnupuri, Nanded.





     4. Shri Manmathappa Pandappa
     Lokhande, Age 83 years,
     Occupation Business,
     R/o Subhash Chowk, Latur.

     5. Bhalchandra Gulshidappa





     Khichadi, Age 57 years,
     Occupation Service as
     Associate Professor,
     M.S.Bidwe Engineering College,
     Latur.

     6. Mahatma Basweshwar Shikshan
     Sanstha, Latur, through its
     Secretary, Madhav Hanumantrao
     Patil -Taklikar, Age 48 years,




    ::: Uploaded on - 21/10/2016                      ::: Downloaded on - 26/10/2016 00:09:41 :::
                                                                     WP/10612/2016
                                            2

     Occupation Business, R/o
     Sai Sadan, Laxmi Colony,




                                                                             
     Old Ausa Road, Latur.                            ..Respondents




                                                     
                                           ...
                      Advocate for Petitioner : Shri Thombre S.S.
                     Advocate for Respondent 1 : Shri Sabnis A.N.
                                  h/f Shri Kodale V.G.
                   Advocate for Respondents 2 & 3 : Shri Aghav A.D.




                                                    
                     Advocate for Respondent 4 : Shri Gunale V.D.
                    Advocate for Respondent 5 : Shri Choudhari S.S.
                                           ...

                              CORAM : RAVINDRA V. GHUGE, J.

Dated: October 19, 2016 ig ...

ORAL JUDGMENT :-

1. Heard learned Advocates for the respective parties.

2. Rule.

3. By consent, Rule is made returnable forthwith and the petition

is taken up for final disposal.

4. The petitioner is aggrieved by the order dated 13.10.2015,

delivered by the University Tribunal in Appeal No. SRTMU/05/2016,

thereby concluding that the taking away of a temporary charge of an

"In-charge Principal" would amount to termination from service and

the appeal would be maintainable under Section 59 of the

Maharashtra Universities Act, 1994.

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5. These litigating sides were before this Court earlier in Writ

Petition No.9369 of 2016. By judgment dated 16.9.2016, I had framed

the following issues, so as to enable the University Tribunal to decide

the same after hearing all the sides:-

"[a] Whether the appointment of a senior most eligible professor as an in-charge Principal would amount to the

termination or reduction in rank of the earlier in-charge Principal.

[b] Whether the issue raised in the appeal would lie before

the Grievance Redressal Committee of the concerned University and whether the University Tribunal would have jurisdiction u/s 59 to entertain the dispute raised in Appeal

No. SRTMU-05/2016."

6. Having framed the above two issues, I had expected the

University Tribunal to decide each of them.

7. I have heard the submissions of the learned Advocates for the

litigating sides for quite some time.

8. There is no dispute that respondent No.1 was earlier

officiating as "In-charge Principal" of the concerned Engineering

College w.e.f. January 2015 till 4.7.2016. It is not in dispute that the

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petitioner herein has been given the temporary charge of a Principal

from 5.7.2016 for a period of six months by taking away the

temporary charge as "In-charge Principal" from respondent No.1.

9. Under the Maharashtra Universities Act, 1994 read with the

Statutes and Ordinances framed under Sections 51 and 53, read with

the Government Resolution dated 15.3.2012, it is settled that

amongst the senior Professors, the senior-most is to be given the

temporary charge of the Principal by embarking upon the exercise of

selecting a regular Principal for making a substantive appointment to

the post of Principal. There can be no dispute that if the senior-most

Professor declines to hold the temporary charge, the next in seniority

list is invited to take the said charge. In the facts of this case,

respondent No.1 is undisputedly at serial No.8, the petitioner herein

is at Sr. No.5 and respondent No.5 is at Sr. No.2 in the seniority list.

The Professor, who is senior-most, has not been made a party /

respondent, either before the University Tribunal or before this

Court. Professor R.R.Sattar is the senior-most person.

10. It is revealed from the facts of this case that respondent

No.3 / Director of the Board of College and University Development

("BCUD") is said to have made telephonic calls to a few Professors. It

is informed that the petitioner who is at Sr. No.5 consented to take

the temporary charge and hence, when the stage for fresh handing

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over of temporary charge arose, the Director / respondent No.3

directed the petitioner to take the temporary charge of Principal. It

was on these premises, that respondent No.1 preferred his appeal

before the University Tribunal, claiming termination from the post of

Principal.

11. By the impugned order passed by the Tribunal, it is concluded

that the withdrawing of temporary charge from respondent No.1

would amount to termination from the post. I find such a conclusion

to be surprising and astonishing. A substantive appointment

necessarily means making a regular appointment on a particular post

as a full time appointment. In the case of a Principal, a substantive

appointment would necessarily mean that a person has been selected

by following the due procedure of law and has been appointed as a

full time Principal. If such a Principal is terminated, it would amount

to termination from the post of a Principal.

12. It is settled law that taking away of a temporary charge does

not amount to terminating a person from the post. When handing

over of a temporary charge is in itself a temporary arrangement and

is not a substantive appointment, withdrawal of such charge,

consequentially, would not amount to termination since there was no

substantive appointment. This aspect has not been dealt with by the

University Tribunal, who in my view, has mis-directed itself by

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considering the facts of this case and yet not being able to deal with

the issue, as to whether the taking away of the temporary charge

would amount to a termination from the post of a Principal.

13. Section 59 of the Universities Act gives a right of appeal

against the action of dismissal, removal or otherwise termination of

the services of a person from a post held by him or who is reduced in

rank. Section 59 reads as under:-

"Section 59 - Right of appeal.

(1) Notwithstanding anything contained in any law or contract for the time being in force, any employee (whether a

teacher or other employee) in any university, 1[* * *] college or recognised institution (other than that managed and

maintained by the State Government, Central Government or a local authority), who is dismissed or removed or whose services are otherwise terminated or who is reduced in rank by

the university or management and who is aggrieved, shall have

a right of appeal and any appeal against any such order 2[shall] lie to the Tribunal:

Provided that, no such appeal shall lie to the Tribunal in any case where the matter has already been decided by a Court or Tribunal of competent jurisdiction or is pending before such Court or Tribunal on the date of commencement of this Act or where the order of dismissal, removal, otherwise termination of service or reduction in rank was passed by the management at any time before the date on which this Act

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comes into force and in which case the period for filing an

appeal has expired.

(2) Such appeal shall be made by the employee to the Tribunal, within thirty days from the date of receipt by him of the order of dismissal, removal, otherwise termination of

services, or reduction in rank, as the case may be:

Provided that, where such order was made before the date of commencement of this Act, such appeal may be made

if the period of thirty days from the date of receipt of such order has not expired.

(3) Notwithstanding anything contained in sub-section (2),

the Tribunal may entertain an appeal made to it after the expiry of the said period of thirty days, if it is satisfied that the appellant had sufficient cause for not preferring the

appeal within that period.

(4) Every appeal shall be accompanied by a fee of four hundred rupees which shall not be refundable and shall be

credited to the university fund:

Provided that it shall be lawful for the State Government to revise, by notification in the Official Gazette, such fees as it may deem fit from time to time."

14. Section 57 of the Act provides for the formation of a

Grievances Committee, which is commonly known as the Grievances

Redressal Committee. Said committee can deal with all grievances of

the Teachers and other employees of the University, Colleges,

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institutions and recognized institutions. Section 57(2) clarifies that

grievances which do not fall within the jurisdiction of the University

Tribunal under Section 59 can be dealt with by the Grievances

Committee.

15. Section 57 of the Act reads as under:-

"Section 57 - Grievances Committee.

(1) There shall be a grievances committee in each

university to deal with the grievances of teachers and other employees of the university, colleges, institutions and

recognised institutions and to hear and settle grievances as far as may be practicable within six months, and the committee shall make a report to the Management Council.

(2) It shall be lawful for the grievances committee to

entertain and consider grievances or complaints which are not within the jurisdiction of the Tribunal and report to the Management Council to take such action as it deems fit and

the decisions of the Management Council on such reports shall be final.

(3) The Grievances Committee shall consist of the following

members viz.,

(a) The Pro-Vice-Chancellor, where there is Chairman no Pro-Vice-Chancellor; a Member of the Management Council nominated by the Management Council-

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or [Two] members of the Management Members

Council nominated by the Management Council from amongst themselves [one of

them belonging to the Scheduled Caste or Scheduled Tribes or De-notified Tribes (Vimukta Jatis) / Nomadic Tribes or Other

Backward Classes, by rotation].

[(ba) two members of the Senate, Members nominated by the Members of the Senate from amongst themselves, one of them

being the woman representative of the

Management and one shall be a teacher;]

(bb) [two members nominated by the Members

members of the Academic Council from amongst themselves one of them being the Principal, and one shall be a teacher.]

(c) The Registrar Member"

16. The second issue that remains to be adjudicated upon is

whether a cause of action, which would not lie before the University

Tribunal under Section 59 of the Act, could be entertained by the

Grievances Committee under Section 57 of the Act. Considering the

language of Section 57 and especially Section 57(2), a cause of action

which is not tenable before the Tribunal under Section 59 can,

therefore, be considered by the Grievances Committee.

17. As such, the impugned order dated 13.10.2016, passed by the

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University Tribunal is quashed and set aside. The application filed by

the petitioner, contending that the Appeal is not maintainable,

stands allowed. Appeal No. SRTMU/05/ 2016, therefore, stands

dismissed as being tenable.

18. In the light of the above, respondent No.1 is at liberty to

approach the Grievances Committee under Section 57 and raise a

grievance which can be considered by the Committee within it's

powers set out in the Act.

19. In the light of the above, the impugned order is perverse,

erroneous and is unsustainable. This petition is, therefore, allowed

and Rule is made partly absolute in the above terms.

20. At this stage, respondent No.1 states that presently, the

Grievances Committee is not constituted for respondent No.3 /

University. Learned Advocate for the University now submits that the

Grievances Committee is in existence. As such, if respondent No.1

submits his Grievances within 15 days from today, the Grievances

Committee shall accordingly, deal with the said grievances as per the

1994 Act, Statutes and Ordinances applicable, as expeditiously as

possible.

21. Needless to state, the constitution of the Grievances

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Committee is explicit under Section 57 and this Court trusts that the

Vice-Chancellor of the said University would do the needful in

accordance with the procedure for constituting a Grievances

Committee, if it is not in existence.

22. Needless to state that the pendency of the proceedings before

the Grievances Committee shall not be an impediment for the

University to ensure that the law applicable and so also the

Government Resolution for appointing the senior-most Professor as

in-charge Principal is followed

23. Pending Civil Application, if any, stands disposed off.

( RAVINDRA V. GHUGE, J. )

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