Bombay High Court

Dr. Manisha Manoharrao ... 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.7062 OF 2017


Dr. Manisha Manoharrao Bhatkulkar,
Aged about 48 years, Occu.: Service, 
R/o. 101, Gokul Govardhan Apartment,
Sumit Nagar, Jaitala Road, Nagpur.
                                                                         .. PETITIONER
                                                                                       .


                                    // VERSUS //


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 Arun U. Deore, 
     Aged About 47 Yrs., Occu: Service, 
     R/o C/o. Jawaharlal Nehru College of
     Arts, Commerce and Science,
     Wadi, Nagpur.
                                                                    ..  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.

DATED : NOVEMBER 23, 2017.

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 No.4-

College, however, considering the nature of dispute and the fact that the

elections of Board of Studies are scheduled on 25 th November, 2017 and

as the contesting parties are represented, the petition is taken up for

hearing.

2. The Principal of the respondent No.4 college had designated

the petitioner as the Head of the Department of Zoology while sending

the list of Heads of the Departments for the purposes of preparing the list

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of voters for the election as per Section 40(2)(c) of the Maharashtra

Public Universities Act, 2016. The respondent No.5 raised an objection

for inclusion of the name of the petitioner in the list of voters. The

respondent No.5 contended that he is senior to the petitioner and should

be designated as Head of the Department of Zoology and his name

should be included in the voters' list. The Returning Officer upheld the

objection of the respondent No.5, deleted the name of the petitioner

from the voters' list and included the name of the respondent No.5 in the

voters' list. The petitioner challenged the decision of the Returning

Officer before the Vice Chancellor in appeal which is dismissed. Being

aggrieved by the decision of the Returning Officer and by the order

passed by the Vice Chancellor, the petitioner has filed this writ petition.

3. The point, which arises for consideration in this writ petition

is whether the Returning Officer can determine the interse seniority of

the lecturers working in the affiliated colleges and whether the

Returning Officer can compel the Management/Principal of the College

to designate the name of the Senior Most Lecturer for inclusion

in the list of voters for the Board of Studies to be constituted as per

Section 40(2)(c) of the Maharashtra Public Universities Act, 2016,

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though some other lecturer is admittedly working as Head of the College

Department.

4. RULE. Rule made returnable forthwith.

5. The relevant facts are as follows:

The petitioner was appointed by order dated 17 th January,

2000 as Lecturer in Zoology. The petitioner joined duties on 17 th

January, 2000. By communication dated 25th February, 2000, the

Assistant Registrar of the University informed that the Vice-Chancellor

had granted approval to the appointment of the petitioner as full-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.

It is undisputed that the petitioner is in continuous service in the

respondent No.4 college since the date of his appointment.

6. The respondent No.5 was appointed as full-time Lecturer in

Zoology by appointment order dated 17 th January, 2000. The

respondent No.5 joined duty on 18th January, 2000. By the

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communication dated 25th 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 22nd 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.

7. 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 5 th

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.

8. The name of the petitioner was forwarded by the college as

Head of Department of Zoology on 30 th August, 2005 and on 8 th March,

2011 for the election of Board of Studies held in 2005 and 2010 and she

had cast her vote. At that time Respondent No.5 had not raised dispute

that the petitioner was not the Head of Department.

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9. The point, whether the Returning Officer has power to

determine the interse seniority and declare who is the Senior Most

Teacher in the department of affiliated college and who is Head of the

College Department is examined by me in Writ Petition No. 7061 of

2017 (Dr. Nitin Chintaman Kongre Vs. The State of Maharashtra &

others), listed simultaneously along with the present writ petition. In

Writ Petition No. 7061 of 2017, I have held that the powers of the

Returning Officer are limited to examine as to who is the de facto Head

of the College Department. I have held that the Returning Officer cannot

exercise adjudicatory powers to determine the interse seniority of the

teachers and cannot declare as to who should be designated as Head of

the College Department.

For the reasons recorded in the judgment given in Writ

Petition No.7061 of 2017, this petition is also allowed in the following

terms:

(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.

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(iii) The respondent No.3 - Returning Officer is directed to include the name of the petitioner as Head of Department of Zoology 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.

It is pointed out that the nomination form of the petitioner is accepted.

The respondent No.3 - Returning Officer shall proceed with the election of Board of Studies for Zoology 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.

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10. 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 Zoology subject shall not be held for four weeks from

today.