Bombay High Court
Dr. Nitin Chintaman Kongre vs The State Of Maha. Thr. Its ... on 23 November, 2017
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.7061/2017
Dr. Nitin Chintaman Kongre,
Aged about 45 Yrs., Occu. Service,
R/o. 144, Gayatri Nagar, behind
InfoTech Park, Nagpur-22. ..Petitioner.
..Vs..
1. The State of Maharashtra,
through its Principal Secretary Higher
and Technical Education Department,
Mantralaya, Mumbai - 32.
2. The Vice-Chancellor of the Rashtrasant
Tukdoji Maharaj Nagpur University, Nagpur.
3. The Registrar - Returning Officer of
the Rashtrasant Tukdoji Maharaj Nagpur
University, Nagpur.
4. Jawaharlal Nehru College of Arts,
Commerce and Science, Wadi,
through its Principal, Wadi,
Dist Nagpur.
5. Shri Rajendra Krishnaji Wanare,
Aged About 44 Yrs., Occu: Service,
R/o Plot No. 7 & 8, Bandu Sony Layout
Parsodi, Gokul Krishnam Apartment,
Flat No.102, Nagpur - 440 022. ..Respondents.
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Shri A.I. Sheikh, Advocate for the petitioner.
Ms. T.H. Khan, A.G.P. for respondent No.1.
Shri P.B. Patil, Advocate for respondent Nos.2 and 3.
Shri S.P. Bhandarkar, Advocate for respondent No.5.
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CORAM : Z.A. HAQ, J.
DATE : 23.11.2017.
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ORAL JUDGMENT
1. Heard Shri A.I. Sheikh, Advocate for the petitioner, Ms. T.H. Khan,
A.G.P. for respondent No.1, Shri P.B. Patil, Advocate for respondent Nos.2 and
3 and Shri S.P. Bhandarkar, Advocate for respondent No.5.
The notice of petition is not served on respondent College No.4,
however, considering the nature of dispute and the fact that the elections of
Board of Studies are scheduled on 25th November, 2017 and as the contesting
parties are represented, the petition is taken up for hearing.
2. Rule. Rule made returnable forthwith.
3. The relevant facts are as follows:
The petitioner was appointed by order dated 4th December, 1999 as
part-time Lecturer in Chemistry. The petitioner joined duties on 7 th December,
1999. By communication dated 14th February, 2000, the Assistant Registrar
informed that the Vice-Chancellor had granted approval to the appointment of
the petitioner as part-time Lecturer from academic session 1999 - 2000
onwards on ad-hoc basis subject to the conditions laid down in the Government
Resolution dated 22nd December, 1995. This Government Resolution permitted
the appointments of lecturers who did not fulfil the eligibility criteria of
qualifying National Eligibility Test/State Eligibility Test, on ad-hoc basis. By
subsequent communication dated 23rd April, 2001, the Assistant Registrar had
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informed that as workload of full time Lecturer was available in the academic
session 2000 - 2001, the appointment of the petitioner was approved as full-
time Lecturer from the date of his appointment. It is undisputed that the
petitioner is in continuous service in the respondent No.4 college since the date
of his appointment.
4. The respondent No.5 was appointed as full-time Lecturer in
Chemistry by appointment order dated 4th December, 1999. The respondent
No.5 joined duty on 8th December, 1999. By the communication dated 14th
February, 2000, the appointment of respondent No.5 as full-time Lecturer was
approved from 1999 - 2000 onwards on ad-hoc basis subject to the conditions
laid down in Government Resolution dated 22 nd December, 1995. It is
undisputed that the respondent No.5 is also in continuous service with the
respondent No.4 college since the date of his appointment.
5. As the petitioner and the respondent No.5 had not qualified
National Eligibility Test / State Eligibility Test, exemption was sought from the
University Grants Commission and it was granted on 5th November, 2008.
After the University Grants Commission granted exemption to the petitioner
and the respondent No.5, the University informed, by the communication dated
11th April, 2009, that the approval to the appointments of the petitioner and the
respondent No.5 was continued.
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6. The petitioner claims that the Management took decision pursuant
to which the Principal designated the petitioner as Head of Department of
Chemistry on 20th October, 2011. The petitioner claims that Shri Jugade who
was working as Head of Department of Chemistry at that time, handed over the
charge to the petitioner and since then he is holding the charge and working as
Head of Department of Chemistry. To substantiate this, the petitioner has
placed on record copy of communication dated 21 st October, 2011 from Dr.
R.M. Jugade to the Principal of the respondent No.4 College (at Annexure F
page 31 of the paper book).
7. It appears that after the petitioner was designated as Head of
Department of Chemistry, the respondent No.5 staked his claim for the post of
Head of Department of Chemistry on the basis of seniority. By representation
dated 20th December, 2013, the respondent No.5 requested the Principal of
respondent No.4 college that he should be given benefit of seniority as he is
senior to the petitioner having been appointed as full-time Lecturer by order
dated 4th December, 1999 and at that time the petitioner was appointed as
part-time Lecturer. It is on record that the dispute of seniority was taken to the
University Authorities. The Deputy Registrar informed the Principal of college
by communication dated 13th January, 2015 that decision in the matter of
seniority of petitioner and respondent No.5 should be taken so that the
aggrieved person can approach Grievance Committee of the University. The
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respondent No.5 also approached the National Commission for Scheduled
Castes with the grievance that he was not given proper placement and
seniority. By communication dated 19th November, 2015 the Member
Secretary of Commission informed various Authorities that as per the order of
Vice-Chancellor of University, opinion of standing Advocate of University was
taken who opined that as the Management had not taken any decision
regarding seniority of respondent No.5 and petitioner, the respondent No.5
should approach the Grievance Committee of University or Court of law. The
Officiating Principal of respondent No.4 college, by communication dated 21 st
April, 2016 apprised the Executive of respondent No.4 college about the
communications sent by the University and the National Commission for
Scheduled Castes and requested the Management to take appropriate decision
in the matter of seniority of petitioner and respondent no.5, at the earliest. By
communication dated 20th May, 2016 the Chairman of Society administering
the respondent No.4 college informed the Principal of the college to intimate
the respondent No.5 that permission was granted to him to represent his case
before the Grievance Committee of University. Accordingly, the Principal of
respondent No.4 college sent communication dated 23rd May, 2016 to the
respondent No.5 and informed him about the decision of the Management.
8. In between the elections of Board of Studies as per Section 37(2)(b)
of the Maharashtra Universities Act were to be held in 2015. On 25 th June,
2015, the respondent No.4 college had sent the name of the petitioner to the
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University for the purposes of these elections, treating him as Head of
Department of Chemistry. The respondent No.5 had taken objection on the
name of petitioner and claimed that he being the senior-most Lecturer in the
Department of Chemistry he was entitled to be designated as Head of
Department of Chemistry and his name was required to be included in the list
of Heads of various Departments sent by the Principal of the college. The
respondent No.5 insisted that the name of petitioner be deleted from the list
sent by the Principal of college. The Returning Officer accepted the objection
of the respondent No.5 and included his name in the list of Heads of
Departments and deleted the name of the petitioner. The petitioner claims that
he had filed appeal against the decision of the Returning Officer. The learned
Advocate for the respondent No.5 and learned Advocate for respondent Nos.2
and 3 contend that there is nothing on record to show that the petitioner had
filed appeal against the decision of the Returning Officer. Be that as it may,
the elections of Board of Studies were not held in 2015 and therefore, the
decision of the Returning Officer became inconsequential.
9. The process of election of Board of Studies started again after the
Maharashtra Public Universities Act, 2016 (for short "the Act of 2016") came
into force and the process for constituting Board of Studies as per Section 40 of
the Act of 2016 came to be initiated. Again the respondent No.4 college
forwarded the name of petitioner as Head of Department of Chemistry, by
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communication dated 14th September, 2017. Again the respondent No.5 took
objection for inclusion of name of petitioner in the list and insisted that the
name of respondent No.5 should be included in the list as Head of Department
of Chemistry. The Returning Officer upheld the objection of the respondent
No.5 by decision dated 5th October, 2017, deleted the name of the petitioner
from the list of Heads of Departments and included the name of respondent
No.5 in the list as Head of Department of Chemistry. Being aggrieved by the
decision of the Returning Officer, the petitioner had filed appeal before the
Vice-Chancellor under Clause 16 of Direction No.20-I of 2017 issued by the
University. The Vice-Chancellor decided the appeal by the impugned order
and maintained the decision of the Returning Officer. Being aggrieved in the
matter, the petitioner has approached this Court.
10. After examining the rival contentions and going through the
decision of the Returning Officer and the order passed by the Vice-Chancellor, I
find that the thrust of the petitioner and the respondent No.5 as well the
Returning Officer and the Vice-Chancellor has been on the criteria of seniority.
The Returning Officer and the Vice-Chancellor have overlooked that the Board
of Studies is being constituted under Section 40(2)(c) of the Act of 2016 which
lays down that the Board of Studies shall consist of three Heads of Departments
from affiliated colleges and recognized institutions to be elected from amongst
the collegiums of Heads of Departments of affiliated colleges and recognized
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institutions. In my view, the only relevant fact which is required to be
examined at the stage of finalizing the electoral roll and dealing with the
objection, if raised, is whether the person whose name is sent by the college is
Head of Department or not. I find that in the present case the respondent No.5
has not disputed that the petitioner is de facto Head of Department of
Chemistry. The claim of the respondent No.5 is that as initial appointment of
the petitioner on 4th December, 1999 was as part-time Lecturer and the initial
appointment of the respondent No.5 on 4th December, 1999 was as full-time
Lecturer and as the respondent No.5 acquired Ph.D. four moths before the
petitioner, the respondent No.5 is senior to the petitioner and being so, as per
second para of Clause 11 of Direction No.20-I of 2017 issued by the University,
the respondent No.5 has to be treated as head of Department.
11. The facts recorded earlier show that the dispute regarding seniority
is going on between the respondent No.5 and petitioner since 2013. The
various Authorities, including the University, have repeatedly stated that the
decision regarding seniority is required to be taken by the Management and
any person aggrieved by the decision of the Management has to approach the
Grievance Committee of the University. In this background, in my opinion, it
was not open for the Returning Officer to overrule the decision of the
Management sending the name of petitioner as Head of Department of
Chemistry, it being a fact that the petitioner is de facto Head of Department of
Chemistry since 2011.
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12. Though the learned Advocate for the respondent No.5 relied on the
communications dated 14th June, 2014 and 23rd June, 2014 (at page Nos.213
and 214 of the paper book) to argue that the Management has designated the
respondent No.5 as Head of Department of Chemistry and had directed the
petitioner to hand over the charge of the post of Head of Department of
Chemistry to the respondent no.5, it is pointed out by the learned Advocate for
the petitioner that the President of the Society administering the respondent
No.4 college has issued the communication dated 18 th June, 2015 informing
the Principal of the respondent No.4 college that the communications dated
14th June, 2014 and 23rd June, 2014 are stayed. Much is argued by the learned
Advocate for the respondent Nos.2 and 3 and the learned Advocate for the
respondent No.5 that the Principal of respondent No.4 college has illegally sent
the name of the petitioner treating him as Head of Department when the
respondent No.5 has to be considered as senior to the petitioner, but none of
them has been able to point out that the respondent No.5 has been de facto
Head of Department of Chemistry at any point of time. The learned Advocate
for the respondent Nos.2 and 3 has relied on the judgment given by the
Division Bench of this Court at principal seat at Bombay in Writ Petition
No.2082/2013 (Maharashtra Federation of University & College Teachers
Organization, Mumbai V/s. The State of Maharashtra and others) and other
connected matters on 23rd December, 2015 to urge that the respondent No.5
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has to be treated as senior to the petitioner as he acquired requisite
qualifications four months before the petitioner. The learned Advocate has
relied on paragraph No.36 of this judgment. In paragraph No.36 of the
judgment, the Division Bench has laid down that the exemptions / relaxations
granted to the appointees who had not qualified NET / SET, from time to time,
only were for the purpose of protecting the employment of such Lecturers. It is
held that the grant of exemptions / relaxations does not confer any legal right /
entitlement on such Lecturers who have not qualified NET / SET to claim all
the other benefits. Moreover, the learned Advocate for the petitioner has
submitted that the judgment given in Writ Petition No.2082/2013 and other
connected matters is challenged before the Hon'ble Supreme Court and the
effect and operation of the judgment is stayed and the petition for special leave
to appeal is pending.
13. The Advocate for the respondent Nos.2 and 3 and the Advocate for
the respondent No.5 have placed heavy reliance on sub-para 2 of Clause 11 of
Direction No.20-I of 2017 to argue that the Principal of the affiliated college
has to designate the senior-most, full-time approved teacher in the subject as
Head of Department, for the purposes of inclusion of name in the electoral roll
for elections of three Heads of Departments under section 40(2)(c) of the Act
of 2016. There is no such requirement in Section 40(2)(c) of the Act of 2016
that the Head of Department has to be the senior-most Lecturer in that
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department. Section 2(31) of the Act of 2016 defines "Head of the College
Department" to mean Head of Department of the College Department, as
prescribed in the Statutes. The learned Advocate for the University has
submitted that the Statutes are not framed by the Rashtrasant Tukdoji Maharaj
Nagpur University in the matter of designation of Head of College Department.
As there are no Statutes laying down the procedure for designation of Head of
College Department, in my view, at this stage, the only relevant fact required to
be considered is that who is the Head of Department. The facts on record show
that the respondent No.4 college has been treating the petitioner as Head of
Department of Chemistry. The facts on record show that the petitioner is de
facto Head of Department of Chemistry. The various Authorities, including the
University, have repeatedly stated that the Management has to take decision
regarding seniority and the aggrieved person may approach the Grievance
Committee of the University. In my view, in the above facts, it was not proper
for the Returning Officer to delete the name of the petitioner from the electoral
roll of Heads of Departments and to include the name of the respondent No.5
as Head of Department of Chemistry for the purpose of election as per Section
40(2)(c) of the Act of 2016. The Vice-Chancellor while considering the appeal
under Clause 16 of Direction No.20-I of 2017 of the University has misled
himself by giving undue weightage to the claim made by the respondent No.5
that he is senior to the petitioner when the only point which should have been
considered was as to who is treated as Head of Department of Chemistry and
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who is de facto Head of Department of Chemistry. Second paragraph of Clause
11 of Direction No.20-I of 2017 of the University does not affect the claim of
the petitioner that he is the Head of Department of Chemistry when the
petitioner has been de facto Head of Departments since 2011. It is clarified that
these observations are made only for the purposes of examining the legality of
the decision of the Returning Officer and the order of the Vice-Chancellor. The
challenges raised in this petition regarding rival claims of the petitioner and the
respondent No.5 about seniority have not been dealt with. In this petition I
have only considered whether the Registrar of the University while acting as
the Returning Officer can exercise the adjudicatory powers to determine the
seniority of the claimants before him. In my view, if the provisions of clause 11
of the Direction No.20-I of the University are read to mean that the Registrar/
Returning Officer is given such powers, then the Registrar will be given the
power of Grievance Committee to decide the matter and which decision of the
Grievance Committee is subject to scrutiny by University and College Tribunal
as per Section 81(1)(b) of the Act of 2016.
Though the intention of the University reflected in sub-para 2 of
clause 11 of the Direction No.20-I of 2017 appears to be good and justified, the
Returning Officer cannot be permitted to determine/ adjudicate the important
issue of seniority and that too, summarily.
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14. In view of the above, it has to be held that the decision of the
Returning Officer and the Vice-Chancellor to delete the name of the petitioner
from the electoral roll of Heads of Departments and to include the name of
respondent No.5 are unsustainable as they are based on irrelevant
considerations and relevant consideration that the petitioner is undisputedly de
facto Head of Department of Chemistry, has been overlooked.
15. Hence, the following order:
(i) The decision of the Returning Officer dated 5th October, 2017 is
quashed.
(ii) The order passed by the Vice-Chancellor on 18 th October, 2017 is set
aside.
(iii) The respondent No.3 - Returning Officer is directed to include the
name of the petitioner as Head of Department of Chemistry in the
list of Heads of Departments submitted by the Principal of the
respondent no.4 college.
(iv) The respondent No.3 - Returning Officer is directed to delete the
name of respondent No.5 from the list of Heads of Departments
submitted by the Principal of respondent No.4 college.
(v) By an interim order passed by this Court on 3rd November, 2017 it is
directed that the nomination form of the petitioner be accepted.
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It is pointed out that the nomination form of the petitioner is
accepted.
The respondent No.3 - Returning Officer shall proceed with election
of Board of Studies for Chemistry subject considering the petitioner
as member of the Collegium of voters' list for the election of Heads
of Departments as per Section 40(2)(c) of the Act of 2016.
Rule is made absolute in the above terms. In the circumstances, the
parties to bear their own costs.
16. At this stage, the learned Advocate for the respondent Nos.2 and 3
and the learned Advocate for the respondent No.5 have prayed that this
judgment be kept in abeyance for four weeks to enable them to take
appropriate steps in the matter. The request is opposed by the learned
Advocate for the petitioner. However, as the elections are scheduled on 25th
November, 2017 and the respondent Nos.2, 3 and 5 will not be able to take
appropriate further steps in the matter till then, in my view, it would be
appropriate to direct that the election for Board of Studies for Chemistry
subject shall not be held for four weeks from today.
Further elections in which the petitioner would be entitled to
participate (contest and/or vote, if elected on Board of Studies) shall not be
held until the elections for the Board of Studies of Chemistry are held and
results are declared.
JUDGE
Tambaskar.
