Bombay High Court
Ashok Baladhan Uke And Others vs The State Of Maharashtra And ... on 8 March, 2017
Bench: T.V. Nalawade
1 WP 6698 of 2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No. 6698 of 2016
1) Ashok s/o Baladhan Uke,
Age 36 years,
Occupation : Education,
R/o At Wasali, Post Dohigaon
Recha, Taluka Anjangaon Surji,
District Amarawati
2) Kamble Uttam Hariba,
Age 42 years,
Occupation : Education,
R/o. Saidham Apartment,
House No.1-6-32,
B Wing, Flat No.4,
Jaisingpura, Aurangabad.
3) Suchita d/o. Chokhaji Ingle,
Age 37 years,
Occupation: Service,
R/o. Plot No.8, Nanadanvan
Colony, Opp. Amit Apartment,
Aurangabad.
4) Balu s/o. Bhimrao Ambhore,
Age 35 years,
Occupation: Service
R/o At Chincholi (Gana),
Post Batwadi, Taluka Balapur,
District Akola.
5) Ashok s/o Pandurang Sarwade,
Age 34 years,
Occupation: Education,
R/o. At Post Belamba,
Taluka Parli, District Beed. .. Petitioners.
Versus
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2 WP 6698 of 2016
1) The State of Maharashtra,
Through the Secretary,
Higher & Technical Education,
Mantralaya, Mumbai - 32.
2) Dr. Babasaheb Ambedkar
Marathwada University,
Aurangabad,
Through its Registrar.
3) Kunali D/o Keshav Bodele,
Age 35 years,
Occupation: Service,
R/o C/o Department of Pali &
Buddhism,
Dr. Babasaheb Ambedkar
Marathwada University,
Aurangabad.
4) Varsha D/o Kacharu Agale,
Age 32 years, Occu: Service,
R/o C/o Department of Pali &
Buddhism,
Dr. Babasaheb Ambedkar
Marathwada University,
Aurangabad. .. Respondents.
----
Shri. S.M. Kamble, Advocate holding for Shri.
Eknath G. Irale, Advocate, for petitioners.
Shri. A.S. Shinde, Assistant Government Pleader,
for respondent No.1.
Shri. S.G. Chapalgaonkar, Advocate, for
respondent No.2.
Shri. Pradeep Deshmukh, Advocate, holding for
Shri. Y.P. Deshmukh, Advocate, for respondent
No.3.
Shri. N.S. Tekale, Advocate, for respondent No.4.
----
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3 WP 6698 of 2016
Coram: T.V. NALAWADE &
SANGITRAO S. PATIL, JJ.
Date: 8 March 2017
JUDGMENT: (Per T.V. Nalawade, J.)
1) Rule. Rule made returnable forthwith.
By consent heard both the sides for final
disposal.
2) The petition is filed for relief of
quashing and setting aside the selection of the
respondent Nos.3 and 4 on the post of Assistant
Professor in respondent No.2, Dr. Babasaheb
Ambedkar Marathwada University in pursuance to
the advertisement published by the University on
30-4-2016. Further direction is claimed to
conduct fresh selection process for such
appointments. The petitioners had applied for
these two posts (one for open category and one
for the reserved category). Though there are many
grounds mentioned in the petition and more
grounds were argued, this Court is considering
two grounds viz. (1) want of jurisdiction to the
4 WP 6698 of 2016
committee due to non inclusion of the required
members in the committee; and, (2) not following
the procedure laid down by University Grants
Commission for selection of such staff in the
University.
3) On the first ground, the petitioners
took this Court through the provision of section
77 of the Maharashtra Universities Act,1994. This
provision shows that when an appointment is to be
made on temporary vacancy of a teacher of the
University and if the Vice-Chancellor is
satisfied that in the interest of teaching it is
necessary to fill in the vacancy immediately and
the period for such appointment is not exceeding
one year, the Vice-Chancellor needs to constitute
local selection committee and after completing
the selection process the selection needs to be
informed to the Managing Council. Section 77 runs
as under:-
"77. Filling temporary vacancies of
university teachers: Where an appointment
is to be made on a temporary vacancy of a
teacher of university the appointment
5 WP 6698 of 2016
shall be made, if the vacancy is for a
period of more than one year, on the
recommendation of the selection committee
in accordance with the provisions of
section 76. The quorum for the selection
committee shall be three, one of them
being the expert under clause (iv) :
Provided that, if the Vice-Chancellor is
satisfied that, in the interest of
teaching, it is necessary to fill in the
vacancy immediately, he may make the
appointment of a person duly qualified,
for a period not exceeding one year on the
recommendation of a local selection
committee constituted as follows, and
shall inform the Managing Council of such
appointments :-
(i) the Vice Chancellor - Chairman;
(ii) the Dean of the faculty concerned;
(iii)the head of the department concerned;
(iv) one expert nominated by the Vice-
Chancellor, except that, where the head of
the department is also the Dean the Vice
Chancellor shall nominate two persons
instead of one;
(v) one member belonging to Scheduled
Caste or Scheduled Tribe or De-notified
Tribes (Vimukta Jatis) / Nomadic Tribes or
Other Backward Classes, nominated by the
Vice-Chancellor;
(vi) Director, Higher Education or his
nominee not below the rank of Joint
Director; and
(vii) Director, Technical Education or his
nominee not below the rank of Joint
6 WP 6698 of 2016
Director.
Provided further that, before the expiry
of one year as aforesaid, the Vice-
Chancellor shall take steps to fill up the
post by appointment in accordance with the
provisions of section 76."
4) In the present matter, it is not
disputed that in the advertisement it was made
clear that the appointment shall be for the
period of 11 months and the appointment was to be
made for the subject Pali and Buddhism. Two posts
of Assistant Professor were available. Out of
that one post was for open category candidate and
one post was for Scheduled Caste candidate.
Appointment was to be made for fixed salary of
Rs.24,000/- per month on contract basis and by
following procedure, Walk-In-Interviews, which
were to be held on 11-5-2016. In the
advertisement the requisite educational
qualifications were mentioned and the candidate
who was holding Master's Degree with at least 55%
marks in the aforesaid subject, from the Indian
University or equivalent degree from an
7 WP 6698 of 2016
accredited foreign University could have applied.
There was relaxation of 5% in the aforesaid marks
for candidates belonging to the Scheduled
Castes/Scheduled Tribes category. The next
essential condition for eligibility was passing
of National Eligibility Test (NET) conducted by
UGC, CSIR etc. The condition of NET was relaxable
for candidates who were awarded Ph.D. in
accordance with the University Grant Commission
(Minimum Standards and Procedure for Award of
Ph.D. Degree) Regulations, 2009. It was made
clear that preference was to be given to the
candidates who were possessing P.G. and Ph.D. in
Pali & Buddhism and also to those candidates who
were having experience of teaching in senior
college or University.
5) For the first ground, the ground in
respect of improper constitution of the
committee, relevant provision of the Act is
mentioned. It is not disputed that there were no
members in the committee of categories (v) to
8 WP 6698 of 2016
(vii). The second proviso to section 77 shows
that if the vacancy is for period of more than
one year that requires following of the procedure
laid down under section 76 of the Act within one
year from the date of the appointment. Thus, the
provision shows that when the local selection
committee is to be constituted that needs to be
in accordance with the first proviso mentioned in
section 77. In view of these circumstances this
Court holds that it was mandatory on the part of
the Vice-Chancellor to constitute the local
selection committee as per the first proviso. It
needs to be kept in mind that in view of the
reservation policy accepted by the State for such
posts, it was mandatory for the Vice-Chancellor
to see that one member belonging to Scheduled
Caste or the Scheduled Tribe etc as mentioned in
(iv) category was included in the local selection
committee. A query was made by this Court to the
learned counsel for the University and he was
asked to show and submit as to whether order of
the constitution of the committee was made and
9 WP 6698 of 2016
any member of that category was appointed
specifically. The submissions made show that no
such order of constitution of the committee was
made. The learned counsel submitted that the
person from the category of (iii) or (iv) can be
of reserved category of SC/ST and in that case
there is no need to apply the provision of of
category (iv) of section 77. This submission is
not at all acceptable. Even if other members from
category other than (v) belong to SC or ST
category that cannot absolve the authority from
the duty to include one member from category (v).
Each category has its own importance and the
members mentioned in all the categories viz. (i)
to (vii) need to be there as the decision of the
local selection committee will not be placed
before the committee which is required to be
constituted under section 76 of the Act. As there
was no such constitution of the committee, this
Court holds that the committee had no
jurisdiction to make the selection of the
candidates as per the aforesaid advertisement and
10 WP 6698 of 2016
so the selection itself is illegal.
6) So far as the second ground is
concerned, "UGC Regulations on Minimum
Qualifications for Appointment of Teachers and
Other Academic Staff in Universities and Colleges
and Measures for the Maintenance of Standards in
Higher Education, 2010" show that these
Regulations are applicable to all the
Universities including respondent University.
Appendix - III Table - II(c) is as under :
Assistant
Professor/equivalent
cadres (Stage 1)
Minimum API Scores Minimum Qualification
as stipulated in these
regulations.
Selection Committee a) Academic Record and
criteria / Research Performance
weightages (Total (50%)
Weightages = 100) b)Assessment of Domain
Knowledge and Teaching
Skills (30%)
c)Interview performance
(20%).
(Only the portion showing the selection committee
criteria / weightages equivalent to 100 are
quoted).
11 WP 6698 of 2016
7) The aforesaid Regulation shows that
before starting of the oral interview at least
one table of Academic Record and Research
Performance for which 50% marks are assigned
needs to be prepared. It can be said that at the
most the assessment for criteria (b) and (c) can
be made by the interview committee. Admittedly in
the present matter, no such separate charts were
prepared. The candidates who were having Ph. D.
degree and who had published papers in
international journals and who were having Ph. D.
in addition to passing of NET are given less than
5 marks by one member. The record of marking
system shows that each member was to give marks
out of 100. In such a case it can be said that
the first marking ought to have been done on the
basis of educational qualification and other
academic record as mentioned above and out of 50%
marks, the candidate ought to have been given
specific marks. Such procedure was not at all
adopted and surprisingly one member gave 2 marks
to a candidate like, Smt. Waghmare from SC
12 WP 6698 of 2016
category and the total number of marks given by
five members in respect of this candidate was 50.
Same can be said in respect of other SC
candidate, Munja Kamble. Same is the case of
Kamble Uttam Hariba, petitioner No.2, and to him
two members have given less than 10 marks and
three members gave less than 20 marks and total
marks of 56 were given to him. The petitioner
Suchita Ingle (No.3) was interviewed as open
category candidate and to her one member gave 2
marks and other 4 members gave between 11 and 20
marks and total marks of 66 were given to her.
To the petitioner Ashok Sarwade (No.5) two
members gave less than 10 marks and 3 members
gave marks between 18 and 25.
8) All the aforesaid instances show that
the members of the interview committee did not
know the marking system which is given by UGC and
as per the guidelines given by UGC the interviews
were not taken. As per the guidelines for oral
interview only 20 marks were available and so
13 WP 6698 of 2016
each member could have given either out of 4
marks or out of 20 marks. If each member had
given out of 20 marks then the average could have
been drawn on the basis of the total marks to
ascertain the marks secured out of 20 marks.
9) Copy of application given by respondent
No.3 - Kunali Keshav Bodele to whom members gave
maximum marks had passed M.A. with 74.5% marks
and she was gold medalist in that examination.
She had done post graduate like Diploma in
Buddhist Study and in that examination she had
secured 74.5% and she had stood first in merit
list. She has passed NET in Pali. She had
obtained Ph.D. in Pali. She had published 3
papers in international journal and five papers
in national journal. She had attended 13
seminars, 8 work-shops and 3 Symposia National.
In addition to that she had presented three
more papers to international journal and 19
papers to national journal. Her one book was
published on the date of the application. She had
14 WP 6698 of 2016
experience of one year in subject Pali and she
had P.G. experience of 4 years in subject Pali
and Buddhism. She secured 295 marks. She was
selected from open category though she had faced
interview as reserved category candidate also.
10) Copy of application of respondent No.4,
Varsha Agale shows that she had applied from
reserved category, Scheduled Caste. She had
completed M.A. B.Ed. in Pali subject and she had
secured 62% marks. She has passed NET in Pali
subject and she had secured 59% marks. She had
completed M.Phil. in Pali and she had secured 60%
marks. Her experience was of 7 years but it was
Under-Graduate experience in Pali and Buddhism.
She secured 162 marks and she came to be
selected.
11) Kunali Keshav Bodele, respondent No.3
was considered from open category also and in the
mark sheet prepared for selection it is shown
that she secured 297 marks. Thus, apparently to
15 WP 6698 of 2016
make space to Smt. Varsha Agale, Smt. Kunali was
shown to be selected from open category.
12) Petitioner No.1 - Ashok Baladhan Uke had
appeared for interview as Scheduled Caste
candidate. His application shows that he is M.A.
in Pali and Buddhism and he had secured 57.57%
marks. He is M.A. in English also and in that
examination he secured 51.53% marks. He has
completed NET and he is also Ph.D. He has done
LL.B. and he is Post Doctorate Fellow from 2014
onward for subject "Distortion of Buddhism,
Prevention and Remedy". He has published 4 papers
in international journals and 8 papers in
national journals. He had attended 15 seminars, 6
work-shops and two Symposia National. He has
presented 11 more papers in international
journals and 22 papers in national journals. His
two books are published and one book is in
process. In press also his papers are published.
In spite of these circumstances, the marks given
to him are between 10 and 30 and total 108 marks
16 WP 6698 of 2016
were given to him. If his case is considered and
compared for academic record and excellence
record it can be said that he was definitely
entitled to get more than 25 marks out of 50
marks which were expected to be reserved for such
academic record. If average of marks given by 5
members is calculated, it comes to 21.
13) The application form of Uttam Hariba
Kamble, petitioner No.2 shows that he has done
M.A. with 57% marks in Pali subject. He has
passed NET in Pali. He is completing Ph.D. in
Pali. In spite of these circumstances, two
members gave him less than 10 marks showing that
the marking system given by UGC is not followed.
Same is the case of the petitioner, Suchita Ingle
who was eligible as she has done M.A. in Pali
with 68.12% marks. She has passed NET in Pali and
she has done M. Phil. In Pali. She was given two
marks by one member.
17 WP 6698 of 2016
14) The petitioner - Balu Ambhore has done
M.A. in Pali and Buddhism with 66.50% marks. He
has passed NET in Pali. He has done Ph.D. in Pali
and he has done other courses like B.A. in
Library Science etc. Five papers are published in
international journals and three papers in
National Journals. He has attended Seminars and
Workshops. To him, marks were given during
interview between 14 and 27 and the total number
of 92 of marks were given to him.
15) The petitioner-Ashok Sarwade has
completed M.A. in First Division. M.Phil in first
Division. He has done Ph.D. in Pali and he has
passed NET. He has obtained Under-Graduate
experience in Pali and Buddhism of 7 years and
post graduate experience of 3 years. He also
published papers in international journals and 4
papers in national journals. He has attended many
seminars and workshops. He has also presented two
papers. But one member gave one mark and other
members gave him 9 marks. Total number of marks
18 WP 6698 of 2016
given to him were 72. Average was 14.
16) The aforesaid illustrations are
sufficient to show that the marking system given
by UGC is not at all followed by the University.
Such marking system is given to see that there is
no scope left for favourotism and selection is
made mainly on the basis of other record. It is
already observed that the University is not
disputing that such marking system was not
followed. That has certainly given scope for
favourotism and it can be said that even when
respondent No.4 had no experience of teaching of
Post Graduate, when no paper of this candidate
was published either in international journal or
in nation journal, when she has not done Ph.D.,
she is selected.
17) The learned counsel for the University
and the learned counsel for the selected
candidates placed reliance on following reported
cases :
19 WP 6698 of 2016
(1) (2016) 1 SCC 454 (Madras Institute of
Development Studies v. K. Sivasubramaniyan);
(2) (2009) 4 SCC 516 (Sri Jyotish Kaiborta v. The
State of Assam);
(3) 2016(1) Mh.L.J. 443 (Ashok v. Dr. B.A.M.
University) of this Court.
On the basis of observations made in these cases
it was submitted for the respondents that the
petitioners had participated in the process of
selection and so they cannot have any grievance
with regard to the process of selection. Facts of
all the reported cases were different. In the
present matter this Court is expected to consider
the specific provisions of the Maharashtra
Universities Act already quoted. There are also
guidelines given by UGC for marking system. When
necessary information was called which could have
been used for aforesaid marking system, it can be
presumed that the petitioners participated in the
process with the presumption that the marking
system will be followed. It was Walk-in-Interview
and as the University was making recruitment,
20 WP 6698 of 2016
there was reason for the petitioners to believe
that the University will be following the
procedure as laid down by law.
18) The aforesaid circumstances show that
the University has not given effect to the law
which regulates the powers of the University.
That may have happened either due to absence of
knowledge or incompetency or it may have happened
due to some mala fide intention behind it. In any
case, the University was bound to follow the
procedure with regard to constitution of the
committee as per the provisions quoted. As the
committee itself was not properly constituted it
had no power to make selection and so the
selection done by such committee cannot be called
as legal.
19) When the procedure which is expected to
be followed in a case like the present one, is
not followed and scope is left for arbitrariness
or for favourotism and there are circumstances
21 WP 6698 of 2016
showing that due to such improper procedure, the
expected fairness was not achieved this Court
cannot ignore such circumstances.
20) It was submitted for the respondents
that the period of appointment will come to an
end in April 2017 and hardly one month is left of
the period for which appointment was given and so
it is not desirable to set aside the
appointments. This Court holds that this
submission is not at all acceptable. Due to such
circumstances the Court cannot avoid to declare
the decision of the authority, like the
respondent University as illegal. Declaration
becomes more necessary in cases like the present
one as the body, statutory authority of
Government needs to be kept within proper
control. If that is not done, the illegality and
abuse of the power will continue. The power of
issuing writ of certiorari needs to be exercised
in such cases and the circumstances that the
period is about to end and further the candidates
22 WP 6698 of 2016
already appointed may face difficulty in using
this experience for getting other post cannot be
considered while setting aside the order.
21) In the result, the petition is allowed.
The appointments of respondent Nos.3 and 4 made
in pursuance of the advertisement dated 30-4-2016
published by respondent No.2 University are
hereby quashed and set aside. Rule made absolute
in aforesaid terms.
Sd/- Sd/-
(SANGITRAO S. PATIL, J.) (T.V. NALAWADE, J.)
rsl
