Bombay High Court
Balu Janu Kukade vs Dr Babasaheb Ambedkar Marathwada ... on 23 August, 2017
Bench: R.D. Dhanuka
Writ Petition No.4943/2004
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 4943 OF 2004
Balu s/o Janu Kukade
Age : 36 years, occu.: service
R/o Tuljapur, Taluka Tuljapur,
District Osmanabad. ... PETITIONER
VERSUS
1. Dr. Babasaheb Ambedkar
Marathwada University
Aurangabad.
Through its Vice Chancellor.
2. The Joint Director,
High Education, Aurangabad
Division, Aurangabad
3. Shri Swami Vivekanand Shikshan
Sanstha, 201-E, Tarabai Park,
Kolhapur, District Kolhapur
Through its Secretary.
4. Tuljabhavani Senior College,
Tuljapur, Taluka Tuljapur,
District Osmanabad.
Through its Principal. .. RESPONDENTS.
***
Mr. P.S. Dighe learned Counsel holding for Mr. V.R. Dhorde,
Advocate for the petitioner.
Mr. K.M. Suryavanshi, Advocate for respondent No.1.
Mr. V.M. Kagne, A.G.P. for respondent No.2.
Mr. V.V. Ingale, Advocate for respondent Nos.3 and 4.
***
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Writ Petition No.4943/2004
2
CORAM: R.D. DHANUKA AND
SUNIL K. KOTWAL, JJ.
th
RESERVED ON : 08
August, 2017 .
rd
PRONOUNCED ON : 23 August, 2017
.
JUDGMENT (PER R.D. DHANUKA, J.)
1. By this petition filed under Article 226 of the
Constitution of India, the petitioner has prayed for a writ of
mandamus for directing respondent No.1 University to grant
approval to the appointment of the petitioner as full time
lecturer from 1995-96 in the subject of Sociology in respondent
No.4 College run by respondent No.3 and also seeks a writ of
certiorari for quashing and setting aside the letter dated
08.04.2008 issued by respondent No.1 University rejecting the
proposal of the petitioner for ad-hoc approval.
2. Some of the relevant facts for the purpose of
deciding this petition are as under.
3. It is the case of the petitioner that he passed his B.A.
Writ Petition No.4943/2004
Examination in the year 1991 and passed M.A. Examination in
the year 1993 in the subject of "Sociology". On 21.08.1993 an
advertisement was published by respondent No.3 for various
posts of lecturers in Senior College including appointment on the
post of leave vacancy in the subject of Sociology in the
newspaper Daily "Kaisari". The petitioner applied for the said
post in response to the said advertisement. It is the case of the
petitioner that at that time respondent No.1 had constituted an
appropriate Selection Committee for the selection of the
candidates. The petitioner was selected by the Said Selection
Committee and was appointed to the said post for a period of
one year for teaching the subject of Sociology in its college at
Talmavale, Taluka Patan, District Satara. Respondent No.1
granted approval to the appointment of the petitioner for a
period of one year on 17.08.1993.
3. It is the case of the petitioner that in the academic
year 1994-95 respondent No.3 Management was permitted to
start new subject of Sociology in the respondent No.4 College.
The petitioner's services were accordingly transferred by
Writ Petition No.4943/2004
respondent No. 3 after the period of one year to respondent No.4
College in the same subject of Sociology. The petitioner was
accordingly given an appointment in respondent No.4 College.
It is the case of the petitioner that however in the letter of
appointment, it was wrongly mentioned that the petitioner had
been appointed on "Clock Hour Basis". The petitioner was
taking more than 8 periods in a week.
4. Respondent No.1 University, vide its letter dated
16.02.1995, raised an objection to the said appointment on the
ground that approval could not be given to the teachers
appointed on Clock Hour Basis. It is the case of the petitioner
that the petitioner thereafter gave necessary explanation to the
University and conveyed that the petitioner was eligible to be
appointed as part-time lecturer as per the Government
Resolution dated 09.12.1994.
5. By an order dated 21.06.1995 the petitioner was
appointed for the academic year 1995-96. The Management
sent the said appointment order to respondent No.1 University
Writ Petition No.4943/2004
for approval. Respondent No.1 University, however, granted
approval vide letter dated 18.01.1996 only for a period of one
academic year. The petitioner was thereafter given appointment
for the academic year 1996-97 by an appointment order dated
28.06.1996. Respondent No.1 granted approval to the said
appointment for academic year 1996-97. Similarly, the
petitioner was once again appointed by an appointment order
dated 13.06.1997 for the academic year 1997-98. Respondent
No.1 University, however, did not grant approval to the
appointment of the petitioner.
6. On 10.12.1997 respondent No.1 granted approval for
the academic year 1997-98 on the condition that for the next
academic year, the advertisement shall be given with the
approval of the University and the petitioner would not be
continued. For the academic year 1998-99, the petitioner was
once again appointed by respondent No. 3 Management in
respondent No.4 College. Respondent No.3 sent the requisite
proposal on 03.12.1998 to respondent No.1 University for
approval. The petitioner was once again appointed for the
academic year 1999-2000.
Writ Petition No.4943/2004
7. By a letter dated 15.05.2000, the Management sent a
letter to respondent No.1 informing that the petitioner was
selected by duly constituted Selection Committee when there
was leave vacancy, and therefore, the appointment of the
petitioner should be approved. The Management sent another
letter on 15.05.2000 seeking approval to the appointment of the
petitioner w.e.f. 12.06.2000 as full time lecturer.
8. It is the case of the petitioner that respondent No.4
had repeatedly sent the proposals to respondent No.1 i.e. on
22.11.2000, 27.03.2011, 29.06.2001 and 01.06.2002 informing
the respondent No.1 that though the petitioner was working
from 1994 initially on 'no grant basis' and thereafter he had also
worked as full time lecturer from 1995-96, no approval was
granted. Respondent No.4 applied for approval to the
appointment of the petitioner as a full time lecturer since 1995-
96. By a letter dated 05.03.2001 respondent No.1 University,
however, replied that the approval to the appointment of the
petitioner could not be granted as the said post had been filled
in without following the rules of the University.
Writ Petition No.4943/2004
9. On 13.02.2001 the Director of Higher Education,
Maharashtra State, Pune issued directions granting 100 % grants
to the subject of Sociology and as to how the proper permission
of the University should be taken for the purpose of selection of
the lecturer. Respondent No.4 College once again vide letter
dated 12.04.2001 sought approval from the University to the
appointment of the petitioner. Respondent No.1 University,
however, did not grant approval vide letter dated 16.05.2001.
By letter dated 30.07.2001 respondent No.1 University informed
respondent No.4 that the earlier two decisions given by the
University should be treated as final. Respondent No.4 once
again sent a letter on 01.02.2002 to respondent No.1 seeking the
approval to the appointment of the petitioner. Respondent No.1
University, however, gave similar reply on 21.09.2002 reiterating
that the earlier decision of the University should be treated as
final.
10. On 31.10.2002 respondent No.2, Joint Director of
Higher Education, informed respondent No.4 College about the
workload. On 18.02.2002 respondent No.4 College requested
Writ Petition No.4943/2004
respondent No.1 to grant approval to the appointment of the
petitioner alleging that the petitioner had been appointed after
selection process. Similar letter was also sent by respondent
No.3 to respondent No. 1 on 16.08.2003. Various
representations were made by respondent Nos.3 and 4 even
thereafter to respondent No.1.
11. On 22.01.2004 the petitioner made representation to
the Vice Chancellor of respondent No.1 stating that the
petitioner had been selected by the duly constituted Selection
Committee pursuant to his application made in response to
advertisement issued by respondent No.3 for the said post of
lecturer in the subject of Sociology. The petitioner requested for
approval to the said post.
12. During the pendency of this petition, the petitioner
submitted a proposal on 05.03.2008, through respondent No.4
College, to the respondent No.1 University seeking ad-hoc
approval to his appointment as per Government Resolution,
Annexure-Y to the petition. By a letter dated 08.04.2008
Writ Petition No.4943/2004
respondent No.1 University rejected the said proposal for ad-hoc
approval conveying that the order dated 05.03.2001 of the
University be considered as final. The petitioner amended the
Writ Petition and prayed for setting aside the said letter dated
08.04.2008 issued by respondent No.1 rejecting the proposal of
the petitioner for ad-hoc approval.
13. This Court did not grant any interim relief while
admitting this petition.
14. Mr. Dighe, learned Counsel for the petitioner submits
that there was a clear permanent vacant post in the subject of
Sociology in respondent No.4 College. The petitioner was
appointed by the proper Selection Committee of respondent
No.3 and was transferred to respondent No.4 College run by
respondent No.3. He submits that the petitioner was granted the
approval on temporary basis from time time by respondent No.1
till January 2004. It is submitted that though the petitioner was
qualified to be appointed on clear vacant post on permanent
basis, respondent Nos.3 and 4 did not send the proposal of the
Writ Petition No.4943/2004
petitioner to respondent No.1 to take appropriate decision. He
submits that 158 persons appointed by the Local Selection
Committee of the respective colleges were considered by
respondent Nos.1 and 2 for permanent approval in view of the
fact that the requisite proposal for approval was submitted by
the respective colleges in respect of those appointments. He
submits that there was, thus, discrimination between the
petitioner and other 158 persons, who were similarly situated.
15. It is submitted by the learned Counsel that during the
pendency of this petition, the State Government had issued letter
to the Director of College and University in respect of 158
lecturers appointed between 19.09.1991 and 11.12.1999. The
Committee was constituted who made recommendations to the
University for granting approval to those 158 persons. After the
proposals were forwarded by the University to the State
Government, the Government had decided that those
appointments which would made by the Local Selection
Committee on clear and vacant post taking into consideration
policy, would be protected.
Writ Petition No.4943/2004
16. It is submitted by the learned Counsel for the
petitioner that during pendency of the Writ Petition, the
petitioner had submitted proposal on 05.03.2008 through
respondent No.4 College and had requested for ad-hoc approval
to the appointment of the petitioner based on the Government
Resolution on the ground that the petitioner was serving with
respondent No.4 since the year 1994-95. He submits that
respondent No.1, however, mechanically rejected the said
proposal for ad-hoc approval on the ground that the order dated
05.03.2001 passed by the University was to be considered as
final.
17. It is submitted by the learned Counsel for the
petitioner that though the post on which the petitioner was
appointed for last several years on year to year basis was clear
and permanent post, the appointment letter initially issued,
inadvertently mentioned that the appointment of the petitioner
was on Clock Hour Basis, though the petitioner was entitled to
be appointed as full fledged lecturer on permanent basis.
Writ Petition No.4943/2004
18. It is submitted by the learned Counsel for the
petitioner that the petitioner had filed Civil Application No. 8804
of 2009 and in which this Court granted injunction from issuing
any advertisement for the purpose of filling up the post in the
subject of Sociology. It is submitted that the State Government
has withdrawn the Circular directing the University to approve
the appointment of 158 lecturers.
19. Learned Counsel for respondent No.1 University, on
the other hand, submits that all recruitment of the teachers in
respondent No.4 College by respondent No.3 is governed by the
procedure prescribed under the statute of Dr. Babasaheb
Ambedkar Marathwada University, Aurangabad and more
particularly bearing No.219 framed by the Senete of the
University. He placed reliance on statute No. 219 and would
submit that all appointments of teachers and the principals in all
the colleges affiliated and the institutions recognized by
respondent No.1 are to be made by the Selection Committee
under the said Statute. He submits that all appointments to
those post shall be made on merits and on the basis of all India
Writ Petition No.4943/2004
advertisement. He submits that the quorum to constitute a
meeting of every Selection Committee shall be four members
and no selection shall be valid unless the expert nominated by
the University is present.
20. It is submitted by learned Counsel for respondent
No.1 that respondent No.3 however failed to comply with the
said mandatory provisions of Section 79 (4) of the Maharashtra
Universities Act, 1994. He submits that the appointment of the
petitioner was not made by the Selection Committee as
prescribed under the statute of respondent No.1 University. He
submits that the petitioner was appointed for the period from
18.08.1993 to 31.07.1994 against leave vacancy of Mr. M.G.
Thorat in Shri Kakasaheb Chavan College of Swami Vivekanand
Shikshan Sanstha, Kolhapur by an order dated 17.08.1993. The
appointment of the petitioner was for the specific period i.e. for
leave period of Professor M.G. Thorat from 18.08.1993 to
31.07.1994. He submits that the appointment of the petitioner
was also approved by respondent No.1 only from 29.08.1993 to
29.08.1994. He submits that by letter dated 31.08.1994 the
Writ Petition No.4943/2004
Government had granted permission to start new subject i.e.
Sociology to respondent No.4 College from the academic year
1994-95.
21. It is submitted by the learned Counsel that the
petitioner was not transferred from Shri Kakasaheb Chavan
College of Swami Vivekanand Shikshan Sanstha, Kolhapur to
respondent No.4 College, but was issued a fresh appointment
order dated 01.12.1994 by respondent No.4 College. The
petitioner has not explained the gap between 18.08.1993 to
01.12.1994. He submits that the appointment orders issued in
favour of the petitioner dated 01.04.1994, 21.06.1995,
28.06.1996, 13.06.1997, 15.06.1998 and 15.06.1999 were
issued on year to year basis and thus the petitioner could not
have contended that he was transferred from Shri Kakasaheb
Chavan College of Swami Vivekanand Shikshan Sanstha,
Kolhapur to respondent No.4 College, run by respondent No.3.
22. Learned Counsel for the University submits that
respondent No.1 has already rejected proposal for the approval
Writ Petition No.4943/2004
of the services of the petitioner by letter dated 16.02.1995 as he
was appointed on Clock Hour Basis in respondent No.4 College.
He invited our attention to the letters annexed at Exhibit-J & N
to the petition and would submit that respondent No.4 while
forwarding proposal of the petitioner for approval had
specifically stated that the appointment of the petitioner was
done by Local Selection Committee.
23. It is submitted that the said post was to be filled up
by issuing an advertisement which was to be approved by the
University. Respondent No.3, however, did not issue any
advertisement in compliance with the statute of respondent No.1
University. He submits that the appointments of the petitioner
made by respondent No.3 was contrary to and in violation of the
statute and more particularly bearing No.219 (A) (2) (a). It is
submitted that the petitioner was not qualified for the
appointment as lecturer in respondent No.4 College also on the
ground that he did not possess the requisite qualification not
having passed NET/SET examination.
Writ Petition No.4943/2004
24. It is submitted that the respondent No.3 was directed
by the University to fill up backlog of the College and advertise
the post by taking approval of the Special Cell and by Regular
Selection Committee. He submits that there is no discrimination
between the petitioner and other candidates as sought to be
canvassed by the petitioner. He submits that in the year 1996
itself while granting approval to the appointment of the
petitioner on yearly basis, it was made clear that the future
appointments would be made by respondent No.3 after
advertisement was issued. He submits that all appointments
made by respondent No.3 of the petitioner were made subject to
the approval of the University. The petitioner, thus, could not
say that though respondent No.3 had not followed the statute of
respondent No.1 University, the University was bound to grant
approval to the petitioner. He submits that at no point of time
the petitioner was appointed on probation admittedly. He
submits that respondent No.1 has refused to grant approval on
the ground that the petitioner was not appointed as per
procedure and law. He submits that the petitioner has been
admittedly paid salary on the Clock Hour Basis.
Writ Petition No.4943/2004
25. Learned Counsel for the Management submits that
there is no workload available in the College of the Management
at Tuljapur. The petitioner was accordingly given appointment
on Clock Hour Basis.
26. Mr. Kagne, Learned A.G.P. submits that the
appointment of the petitioner was approved by the University for
the leave period from 29.08.1993 to 29.09.1994 only. The
approval to the selection or appointment of the lecturers has to
be as per the norms under the provisions of Maharashtra
Universities Act, 1994. He submits that the petitioner was
selected and appointed by the Local Selection Committee, and
therefore, the University has rightly not granted approval to the
appointment of the petitioner.
27. The learned Counsel for the petitioner, in rejoinder,
submits that during the period between 1991 and 2000, there
was no Selection Committee appointed by respondent No.1
University. He placed reliance on the order dated 06.02.2014
passed by the Division Bench of this Court in Writ Petition
Writ Petition No.4943/2004
No.6459 of 2011 in case of Vasudeo Dattatraya Jadhav and
others Versus The State of Maharashtra and others and would
submit that this Court had granted protection to all the
appointees made by the colleges, who were appointed by Local
Selection Committee.
28. It is not in dispute that the petitioner was appointed
for the period from 18.08.1993 to 31.07.1994 against leave
vacancy of Professor M.G. Thorat in Shri Kakasaheb Chavan
College of Swami Vivekanand Shikshan Sanstha, Kolhapur by an
order dated 17.08.1993. The said appointment of the petitioner
was for the leave period of Professor M.G. Thorat from
18.08.1993 to 31.07.1994. Respondent No.1 had approved the
said appointment of the petitioner for the said leave period only.
Government had granted permission to respondent No.4 College
by letter dated 31.08.1994 to start new subject i.e. Sociology in
respondent No.4 College from the academic year 1994-95.
29. A perusal of the record indicates that respondent
No.4 College had issued an appointment order on 01.12.1994 to
Writ Petition No.4943/2004
the petitioner appointing him as part-time Senior Lecturer of
Sociology in respondent No.4 College w.e.f. 05.12.1994. The
said appointment was on temporary basis as per University
Rules. It was made clear that appointment of the petitioner was
governed by the Rules of respondent No.1 University and was
subject to approval by respondent No.1. The petitioner was
appointed on the reserved post. We are, thus, not inclined to
accept the submission of the learned Counsel of the petitioner
that the services of the petitioner were transferred from Shri
Kakasaheb Chavan College of Swami Vivekanand Shikshan
Sanstha, Kolhapur to respondent No.4 College.
30. Respondent No.1 had already rejected the proposal
for approval of the services of the petitioner by letter dated
16.02.1995 as the petitioner was appointed on Clock Hour Basis
in respondent No.4 College. Respondent No.4 itself had
informed respondent No.1 while forwarding the proposal for
approval to the appointment of the petitioner that the
appointment of the petitioner was made by Local Selection
Committee. Respondent No.1 University accordingly had
Writ Petition No.4943/2004
directed respondent No.3 to fill up the post by issuing
advertisement which was approved by the University.
Respondent No.3, however, did not issue any advertisement in
respect of subsequent appointments made by respondent No.3 in
respondent No.4 College.
31. A perusal of the statute No. 219 (A) indicates that
the said statute provides for the mode of recruitment of teachers
in affiliated colleges. Respondent No.4 was one of the college
affiliated to respondent No.1. The said statute clearly provides
that there shall be a Selection Committee for making
recommendations to the government bodies of the colleges for
the appointment of teachers and the principals of the colleges
affiliated to and institutions recognized by the University.
Statute 219 (2) (a) provides that all appointments to the post
categorised in the said statute shall be made on merits and on
the basis of all India advertisement.
32. A perusal of the record indicates that when the
petitioner was appointed in the leave vacancy of Professor M.G.
Writ Petition No.4943/2004
Thorat, the said appointment was not made after issuing any
advertisement as contemplated under Statute 219 of respondent
No.1 University, but was made on leave vacancy only during the
leave period. Though respondent No.1 had directed the
Management to make subsequent appointments only after
issuing advertisement under the statute of respondent No.1,
admittedly respondent No.3 did not issue any advertisement and
continued to make yearly appointment of the petitioner on
temporary basis and that also through Local Selection
Committee.
33. In our view, the appointments of the petitioner made
from year to year on temporary basis is without following the
mandatory provisions prescribed in the Statute of respondent
No.1 University which were binding to the petitioner and the
respondent No.4 College which was affiliated to respondent No.1
University, and thus approval of the petitioner was rightly
rejected by respondent No.1 University.
34. We are not inclined to accept the submission of
Writ Petition No.4943/2004
learned Counsel for the petitioner that the services of the
petitioner were transferred by respondent No.3 from Shri
Kakasaheb Chavan College of Swami Vivekanand Shikshan
Sanstha, Kolhapur to respondent No.4 College. No such letter of
transfer was produced by the petitioner or by the Management
before this Court. On the contrary, the letter of appointment
issued by respondent No.4 clearly indicates that the same was a
fresh appointment order appointing the petitioner on temporary
basis subject to Rules of respondent No.1 University and subject
to its approval. The petitioner, thus, cannot claim any vested
rights in the said post merely because the petitioner was
appointed on year to year basis inspite of respondent No.1
University repeatedly directing respondent No. 3 to fill up the
post after issuing advertisement as per the Statute of respondent
No.1 University
35. In so far as the submission of learned Counsel for the
petitioner that about 158 other teachers were appointed through
Local Selection Committee and their appointments were
approved by the University is concerned, it is not in dispute that
Writ Petition No.4943/2004
the Government has already withdrawn the said circular
directing University to approve the appointment of 158 teachers.
In our view, reliance placed by learned Counsel for the petitioner
on the order dated 06.02.2014 in case of Vasudeo versus State
of Maharashtra (supra) would not assist the case of the
petitioner. The petitioners in the said Writ Petition No. 6459 of
2011 alongwith several other Writ Petitioners had impugned the
communication issued by the Government dated 14.07.2011 by
which process of appointing new teachers was directed to be
initiated without putting an end to the services of those teachers
who were petitioners in those petitions in accordance with law.
36. This Court recorded that the Government had
decided to withdraw any such direction if issued and the letter of
Government need not to be construed as an order of termination
or putting an end to the services of those petitioners. This Court
recorded the statement made by learned Counsel for the
University that in the event of the University desiring to put an
end to the services of those petitioners, it would take requisite
steps in accordance with law and will not proceed to terminate
Writ Petition No.4943/2004
the services only by relying on the Government communication,
but would act independent thereon. It would hear each of the
petitioner in these petitions and would pass reasoned order in
accordance with law. This Court clarified that this Court had not
expressed any opinion on the rival contentions including on the
point of authority of the State to issue such directions. The facts
before this Court in this Writ Petition are totally different. The
Government has neither issued any such directions as were
issued which were the subject-matter of those Writ Petitions, nor
rejection of the appointment of petitioner is made based on any
such directives issued by the Government.
37. In our view, appointment of the petitioner not having
been made in accordance with Statute of respondent No.1, this
Court cannot issue a writ of certiorari or mandamus for directing
the respondent No.1 to grant approval to such appointment of
the petitioner made in the teeth of the Statutes of respondent
No.1. In our view, the petition is totally devoid of merit and is
accordingly dismissed.
Writ Petition No.4943/2004
38. We, therefore, pass the following order.
ORDER
1. Writ Petition No. 4943 of 2004 is dismissed.
2. Rule is discharged.
3. There shall be no order as to cost.
(SUNIL K. KOTWAL) (R.D. DHANUKA)
JUDGE JUDGE
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