Dr. Mohd. Asif Nabi Sheikh, ... vs Mahila Kal Mahavidyalaya, Nagpur ...
2017 Latest Caselaw 8570 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
                         NAGPUR BENCH : NAGPUR.

                                 Writ Petition No.2016 of 2014


Dr. Mohd. Asif Nabi Sheikh,
Aged about 49 years,
Principal, Ramesh Dhawad Sharirik Shikshan 
Mahavidyalaya, Hingna Road, MIDC, Nagpur                       .... Petitioner.

                                                  Versus

1)      Mahila Kala Mahavidyalaya,
        Umrer, PIN : 441203, Distt. Nagpur.

2)            The Academy of Arts & Sciences, Umrer,
              Distt. Nagpur through its President Shri M.B. Badhiye,
                      (Corrected address of resp. no.2.)
              The Academic of Arts and Sciences, Umrer,           Amended as per  Court's 
          Dist. Nagpur through its President                           order dated 13-06-2014
          Shri M.B. Badhiye, Adv.
          R/o.-Behind Maharashtra Emporium, Badkas Chowk,
          Mahal, Nagpur-32.
                         (Corrected address of resp. no.2.)
          The Academy of Arts & Sciences, Umrer,                 Amended as per Court's
               Distt. Nagpur through its Working President                   order dated 12-01-2016
          Shri Anandrao S. Giradkar,
          R/o.-176-A, Shiv Nagar, Behind Nirmal Bank, 
          Nandanwan Road, Nagpur-440 009.

3)        Shyam Bhojraj Punde,
          Designate Principal, Mahila Kala Mahavidyalaya, 
          Umrer- 441203, Distt. Nagpur.

4)       Smt. Sharda H. Shakya,
         167, Surendra Nagar, Nagpur 440015.

5)      Nagpur University through its Registrar, Nagpur.




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6)        Vice Chancellor,
          Nagpur University, Nagpur.

7)        Grievance Committee for R.T.M. Nagpur University,
          through its Registrar, Nagpur.

8)        Joint Director of Higher Education,
          Morris College T Point, Sitabuldi, Nagpur.              .... Respondents.
----------------------------------------------------------------------------------------------------
                       Shri  R.L. Khapre, Advocate for petitioner.
                      Shri  B.G. Kulkarni Advocate for resp. no.3.
               Shri A.S. Agrawal, Advocate for resp. nos. 5, 6 and 7.
----------------------------------------------------------------------------------------------------
                                            Coram : B.P. Dharmadhikari  &
                                                         Mrs. Swapna Joshi, JJ.

Dated : 09th November, 2017.

ORAL JUDGMENT ( Per B.P. Dharmadhikari, J.)

The matter is part heard. It was heard earlier on 10-10-2017,

11-10-2017 and 12-10-2017. Today, the matter has appeared at serial

no.1 on Board.

2] As the old matters are to be given precedence, we kept back

this matter and called it out after first ten old matters. The learned

Advocates appearing therein were not present and hence we then called

out this part heard matter.

3]               Hearing has been completed today only.





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4]               Learned   Advocate   Shri   Khapre   on   behalf   of   the   petitioner

submits that the University Grants Commission's [UGC] regulations which

have come into force from 30-06-2010 are accepted and acted upon by

the State of Maharashtra from 15-02-2011 and as such are determinative.

The UGC regulations do not give any concession to respondent no.3

already working as a Principal in an aided college affiliated to the Nagpur

University and as such his selection in terms of the advertisement dated

27-06-2013 needs to be viewed as fresh selection and if so viewed, he

has to show that his Academic Performance Indicators [API] score is

minimum 400 points and without that he cannot participate in the selection

process. The support is being taken from Clause 4.2.0 (iv) and

Appendix-III Table-II(c) with UGC Regulations for this purpose. The

papers showing 440 as API score submitted by respondent no.3 are also

objected to on the ground that when the points for training course etc. can

at the most be 30, the respondent no.3 has taken to 215 marks. It is

submitted that the same error of taking more score on other counts can

also be demonstrated but then as for training, 185 points have been taken

in excess, if those points are subtracted from 440 the API score of

respondent no.3 drops down to 255, and hence he ceases to be eligible

and cannot participate in the process.

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5]               The second contention is,   the Committee as constituted for

the purposes of taking interviews under Clause 5.1.6 of the UGC

Regulations by respondent no.1 was defective and hence its proceedings

need to be ignored.

6] The last contention is, as the petitioner is the only eligible and

qualified candidate, the petitioner ought to have been selected as

Principal.

7] Learned Advocate Shri Khapre has placed reliance upon the

judgment of Hon'ble Apex Court in the case of Kalyani Mathivanan vs

K.V. Jeyaraj and others, reported at AIR 2015 SC 1875 to urge that the

U.G.C. Regulations are determinative and conclusive. He points out that

there a particular view has been reached because the State of Tamil Nadu

had not adopted UGC regulations. However, here that distinguishing

feature is not available. The judgment of the Hon'ble Apex Court in the

case of Central Electricity Supply Utility of Odisha vs. Dhobei Sahoo and

others, reported at 2013 AIR SCW 6339, particularly paragraph 18 therein

is relied upon to urge that the question of locus of the petitioner is not

relevant at all as the Writ of quo warranto has been asked for.

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8]               The   petition   is   strongly     opposed   by   learned   Advocate

Shri Kulkarni who appears for respondent no.3 and learned Advocate

Shri Agrawal who appears for respondent nos. 5, 6 and 7.

9] They invited our attention to our orders dated 23-04-2014 and

dated 12-10-2017 to urge that the Court has not permitted the petitioner

to challenge Clause no.3 in the advertisement dated 27-06-2013. No

application for amendment thereafter has been filed and as such the

contentions based upon said Clause no.3 of the advertisement are

misplaced.

10] Learned Advocate Shri Kulkarni has placed strong reliance

upon the Division Bench judgment of this Court in the case of

Dr. Ajit Uttamrao Wagh vs. North Maharashtra University, Jalgaon and

others, reported at 2011(3) ALL MR 747, particularly paragraphs 11 and 12

therein to submit that here at the most one member of the Management

Council was not nominated but then that lacuna does not confer any

advantage upon the petitioner. The provisions of Section 111 of the

Maharashtra Universities Act, 1994 [for short, 'the Act of 1994"], are heavily

relied upon him. He states that as per sub-clause (b) of Clause 5.1.6 of

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the U.G.C. Regulations, five members of the Selection Committee must

remain present and if in these five members, there are two experts,

quorum is complete. He submits that in present facts total four experts

were nominated and three were present. He further points out that total

six members of the Selection Committee have conducted selection

proceedings and hence there was quorum. He, therefore, contends that

the Division Bench judgment in the case of Dr. Ajit Uttamrao Wagh

(mentioned supra) clinches the controversy.

11] Lastly on API score, the learned Advocate submits that the

UGC regulations do not contain any provision disqualifying or removing a

person validly selected as a Principal and working on 30-06-2010 or

15-02-2011. He submits that a person working as a Principal of a college

therefore can definitely changes college and become Principal of some

other college. Hence, the requirement of having minimum API score of

400 is not attracted at all.

12] Without prejudice, he adds that the API score of 440 claimed

by respondent no.3 is accepted by the Selection Committee and there is no

error in it. He submits that the same scale needs to be used even for

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judging the API score for the petitioner and as such there cannot be any

discrimination between respondent no.3 and the petitioner. If it is claimed,

on any count, including under the head "training", that the respondent no.3

has taken excessive score, then the petitioner also has taken same

scores.

13] Learned Advocate Shri Kulkarni and learned Advocate

Shri Agrawal, therefore, pray for dismissal of the Writ Petition.

14] In reply arguments, learned Advocate Shri Khapre submits

that the necessary material to assail Clause no.3 in advertisement is

already available in petition and therefore no prejudice is caused to the

parties, if it is adjudicated upon. He contends that if Clause no.3 is set

aside the respondent no.3 may not be in a position to participate in the

selection process at all.

15] After hearing the learned respective Advocates, we find that

the API scores of the candidates need to be evaluated by the Selection

Committee. Hence, whether anybody has taken wrong scores or has

played any mischief, is the issue in domain of such Committee.

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16]              However,     vide   order   dated   12-10-2017,   we   have   already

made some observations about the Condition no.3 in the advertisement.

We have recorded that an opportunity was given to the petitioner to file

fresh petition as said ground was going to the very root of the

advertisement. The learned Advocate for the petitioner in absence of

instructions agreed to proceed with hearing and the writ petition and

permitted the learned Advocate for respondent no.3 i.e. learned Advocate

Shri Kulkarni to argue on merits. Thus, the validity of Clause no.3 or

otherwise of the advertisement cannot be looked into in this proceeding.

17] It is apparent that if Clause no.3 in the advertisement is to be

set aside, the petitioner ought to have approached the Court immediately.

He did participate in the selection process, acquiesced in it and hence on

12-10-2017, he was given necessary opportunity.

18] In any case, in the present matter, no express provision in

UGC regulations unseating a Principal like respondent no.3 has been

pointed out. The respondent no.3, therefore, can continue to function as a

Principal of a college affiliated to the Nagpur University. It does not mean

that he can continue as a Principal of a college in which he is placed on the

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date of coming into force of UGC regulations and if he changes the college

he becomes disqualified. Learned Advocate Shri Khapre, however,

submitted that the selection as a Principal of other college is fresh

recruitment and therefore the norms prevailing on the eve of such fresh

recruitment must be fulfilled. For reasons already mentioned supra, we

find it difficult to look into the validity of Clause no.3 or then this contention

in the present matter.

19] Insofar as the composition of Selection Committee is

concerned, Clause 5.1.6 of the U.G.C. regulations reads as under :-

"5.1.6 College Principal

(a) The Selection committee for the post of College Principal shall have the following composition:

1. Chairperson of the Governing Body as Chairperson.

2. Two members of the Governing Body of the college to be nominated by the Chairperson of whom one shall be an expert in academic administration.

3. One nominee of the Vice Chancellor who shall be a Higher Education expert. In case of Colleges notified/declared as minority educational institutions, one nominee of the Chairperson of the College from out of a panel of five names, preferably from minority communities, recommended by the Vice-Chancellor of the affiliating university of whom one should be a subject expert.

4. Three experts consisting of the Principal of a college, a Professor and an accomplished educationist not below the rank of a Professor (to be nominated by the

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Governing Body of the college) out of a panel of six experts approved by the relevant statutory body of the university concerned.

5. An academician representing SC/ST/OBC/Minority/Women/Differently-abled categories, if any of candidates representing these categories is the applicant, to be nominated by the Vice Chancellor, if any of the above members of the selection committee do not belong to that category.

(b) At least five members, including two experts, should constitute the quorum.

(c) All the selection procedures of the selection committee shall be completed on the day of the selection committee meeting itself, wherein, minutes are recorded along with the scoring proforma and recommendation made on the basis of merit with the list of selected and waitlisted candidates/Panel of names in order of merit, duly signed by all members of the selection committee.

(d) The term of appointment of the college principal shall be FIVE years with eligibility for reappointment for one more term only after a similar selection committee process."

20] Learned Advocate Shri Kulkarni has on 12-10-2017 produced

a Government Resolution dated 30-01-2012 which shows that in addition

to the members mentioned in above clause, the inclusion of the Divisional

Joint Director as the representative of the Government has also been

mandated.

21] Insofar as the composition of Committee which has

interviewed the petitioner and respondent no.3 before us on 14-10-2013 is

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concerned, it is not in dispute that, on that day, total six members of the

Committee were present and out of them three were experts. Thus, on

that day, stipulation about quorum stood satisfied. Out of three experts to

be selected from the Panel of six experts approved by the relevant

statutory body of the university, two experts attended the interview

proceedings and one expert though nominated was absent.

22] However, it is not in dispute, that there was no nomination of

one member of the Governing Body of college by Chairperson of

Governing Body. Thus, the requirement of sub-section (2) of Clause 5.1.6

(a) of U.G.C. Regulations was not met with. The said sub-clause obliges

the Chairperson to nominate the two members of the Governing Body of

the college as part of the Selection Committee. The Chairperson in the

present matter nominated only one such member who happened to be an

expert in academic administration. Thus, the other person or member of

the Governing Body was never nominated and therefore did not form part

of the Selection Committed at all.

23] Perusal of the judgment of Division Bench of this Court, in the

case of Dr. Ajit Uttamrao Wagh (supra) shows that there Clause 413(B)

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and (2) of the relevant statute of that University has been looked into. Its

Clause (A) requires Chairman of the Governing Body of the college to be

part of the Selection Committee. Instead of him, the Secretary was

nominated and functioned as part of the Selection Committee. It is, in this

backdrop, that the provisions of Section 111 of the Act of 1994, have been

looked into and in paragraph 12 the Division Bench of this Court has

found that such lacuna cannot be held to be fatal.

24] The facts in subject matter, therefore, show that the

composition of Selection Committee was complete and hence in terms of

statute, a validly constituted Selection Committee was born. In that

Committee, instead of Chairperson, the Secretary of the Governing Body

participated. As such, the recourse was taken to Section 111 of the Act of

1994 and lacuna has been found curable.

25] Section 111 of the Act of 1994, reads as under :-

"111. Acts and proceedings not invalid merely in ground of defect in constitution, vacancies, irregularity in procedure, etc. No act or proceeding of the Senate or the Management Council or Academic Council or any other authority or any body or committee of the university including a committee appointed by the Chancellor for the appointment of a Vice-Chancellor shall be deemed to

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be invalid at any time merely on the ground that-

(a) any of the members of any such authority, body or committee are not elected, appointment, nominated or co-opted or for any other reason are not available to take office at the time of the constitution or to attend any meeting thereof or any person is a member in more than one capacity or there is any other defect in the constitution thereof or there are one or more vacancies in the offices of members thereof;

(b) there is any irregularity in the procedure of any such authority, body or committee not affecting the merits of the matter under consideration, and the validity of such act or proceeding shall not be questioned in any court or before any authority or officer merely on any such ground."

26] Bare reading of this provision, therefore, shows that the

Selection Committee with necessary strength i.e. number of members of

the Selection Committee comes into being and is constituted, and therein

there is some vacancy on account of absence of election, absence of

nomination or co-option etc. in such Committee. Thus, the Committee

validly born and already functioning is not crippled because of such

vacancy and it has not been treated as fatal to its composition or

functioning.

27] Section 111 of the Act of 1994 speaks of Senate or

Management Council or academic Council or any other authority or any

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body or committee of University. The Selection Committee to select the

Principal of a college cannot be viewed as Selection Committee of the

University. Recruitment is the exercise undertaken by private management

through a Section Committee composed as per UGC regulations.

28] At this stage, our attention is invited to the provisions of

Section 79(3) of the Act of 1994 to urge that the composition of such

Selection Committee is recommended by the said Act and by statute

prescribed thereunder. Learned Advocate Shri Khapre rightly submits

that the regulations framed by U.G.C. itself show that it is Selection

Committee of the college. Section 111 of the Act of 1994 which is an

enabling provision and removes technical lacunae speaks of the various

authorities or Committees functioning under the University. It also includes

Committee appointed by the Chancellor for appointment of Vice-

Chancellor. The Selection Committee in the present matter is formed

under Clause 5.1.6 of the U.G.C. Regulations and it stipulates that the

Chairperson of the Governing Body of the Management representing the

college, acts as its Chairperson. Two members of the Governing Body of

the concerned college nominated by him and three experts to be

nominated by the Governing Body of the college also form part of such

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Selection Committee. The Vice-Chancellor has got power to nominate

one person and, in case the post of Principal is reserved an academician

representing such reserved category nominated by the Vice-Chancellor

also becomes its part. Because of the Government Resolution dated 30-

01-2012 mentioned supra, the Divisional Joint Director also becomes its

part as the representative of the State Government. It is, therefore,

apparent that such Committee cannot be viewed as the Authority or Body

or Committee of the University.

29] Moreover, the facts at hand show that here the composition

of Selection Committee in terms of Clause 5.1.6 itself was never

complete. The Chairperson of the Governing Body did not even

nominate the other member of the Governing Body of college as part of

the Selection Committee. Thus, when the Selection Committee fully

constituted should have consisted of eight members, here only seven

such members existed. This cannot be perceived as vacancy and

subjected to Section 111 of 1994 Act. As the Selection Committee itself

was not fully constituted, this error cannot be cured by contending that the

requirement of quorum stood satisfied. The requirement of quorum will

be attracted when the Committee is fully constituted and is validly

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functioning. Even, if we presume that Section 111 of the Act of 1994 may

also apply to such Selection Committee, it will not take care of such

omissions to nominate, which results in non completion of the Selection

Committee.

30] We, therefore, find that on facts the Division Bench judgment

in the case of Dr. Ajit Uttamrao Wagh ( mentioned supra) of this Court has

no application here. We therefore need not speculate on effect of

chairperson objecting to his omission and inclusion of somebody else in his

place as part of Selection Committee. In present matter and facts, we

hold that neither Section 11 of 1994 Act nor Clause 5.1.6 (b) of UGC

regulations can be invoked to validate proceedings of a still born Selection

Committee.

31] Perusal of judgment of the Hon'ble Apex Court in the case of

Central Electricity Supply Utility of Odisha (supra) shows that in matters

where Writ of quo warranto is sought, larger public interest needs to be

looked into and locus of the petitioner has no play. In the light of these

findings, we do not find it necessary to dwell upon the judgment of the

Hon'ble Apex Court in the case of Kalyani Mathivanan (supra) which deals

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with the overriding power and property of the U.G.C. Regulations.

32] As the Selection Committee which has interviewed the

petitioner and respondent no.3 was itself incomplete, its proceedings

cannot be viewed as legal and valid. Hence, the Report and Minutes of

the Selection Committee dated 14-10-2013, are unsustainable. The same

are, accordingly, quashed and set aside.

33] We, therefore direct respondent nos.1 and 2 to take necessary

steps to constitute a valid Selection Committee in terms of Clause 5.1.6 of

the U.G.C. Regulations and to proceed further with evaluation of the claims

of the petitioner and respondent no.3 as per law. Needless to mention that

the controversy that the API score can be looked into by such Committee.

34] As respondent no.3 is already functioning as a Principal of

respondent no.1 college, he shall continue as such until the Selection

Committee thus constituted, completes its proceedings and its report

approved by respondent nos. 5, 6 and 7.

35]              This   exercise   and   process   of   selection   shall   be   completed





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within three months from today.



36]               With these observations and directions, we partly allow   the

writ petition and dispose it of. No costs. Rule made absolute accordingly.

                                  JUDGE                                                     JUDGE   




Deshmukh