Bombay High Court
Womens Education Society, Nagpur ... vs The State Of Maha. Thr. Sec. Dept. ... on 5 October, 2017
Bench: B.P. Dharmadhikari
wp.6419.17
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
WRIT PETITION NO. 6419/2017
1) Women's Education Society
A Society registered under the provisions of
the Societies Registration Act, 1860, having
its office at Shankar Nagar,
Nagpur-440 010.
Through its Secretary
2) Lady Amrita Daga College for
Women of Arts, Commerce and
Smt. Ratnadevi Purohit College of
Home Science and Home Science Technology
Shankar Nagar, Nagpur 440 010
Through its Principal. .. PETITIONERS
versus
1) The State of Maharashtra
Through the Secretary
Department of Finance
Mantralaya, Madam Cama Road
Mumbai - 400 032.
1A) The State of Maharashtra
Through the Secretary
Department of Higher & Technical Education
Mantralaya, Madam Cama Road
Mumbai -400 032.
2) The Joint Director
Higher and Technical Education
Nagpur Division, Old Morris College Building
Nagpur.
3) Rashtrasant Tukdoji Maharaj Nagpur University
Through its Registrar,
Maharajbagh Road, Civil Lines
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Nagpur.
4) Director of Higher and Technical Education
Maharashtra State, Pune. .. RESPONDENTS
...............................................................................................................................................
Mr. A.A. Naik, Advocate for the petitioners
Miss Nivedita Mehta, AGP for respondents 1, 1A, 2, and 4
................................................................................................................................................
CORAM: B.P. DHARAMDHIKARI &
MRS. SWAPNA JOSHI, JJ.
DATED: 5th October, 2017
ORAL JUDGMENT: (PER B.P.DHARMADHUIKARI, J.)
1. Rule. Rule, made returnable forthwith. Heard finally.
2. This Court has, on 29th September 2017, issued notice after taking note
of the fact that Principal of the petitioner no.2-College superannuates on 31.10.2017
and hence the petitioners needed permission to proceed further to fill in that vacancy
as per law.
3. While issuing notice on 29th September 2017, this Court also directed
respondent no.2-Joint Director, to consider the proposal seeking such permission
submitted by petitioner no.1 and annexed to Writ Petition as Annexure 'J' &'L' therein.
4. Learned A.G.P. appearing for respondents 1, 1A, 2 and 4 has
produced before this Court the order dated 3.10.2017 passed by respondent no.2-Joint
Director along with copy of Government Resolution (G.R.) dated 15th March 2012
issued by respondent no.1A. Copies of these documents are also handed over to
counsel for petitioners in Court. In view of 'no objection' given by counsel for
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petitioners, these documents are taken on record and marked as Exh.'X' collectively,
for identification's sake.
5. On the basis of order dated 3.10.2017 passed by respondent no.2,
learned AGP submits that earlier policy decision dated 25th May 2017 or Circular dated
10th July 2017 need to be construed harmoniously in the backdrop of original G.R.
dated 11th February, 2016 issued by Finance Department (respondent no.1). She
points out that anxiety of respondent nos. 1 and 1A was/is to reduce financial burden
and, therefore, to reduce number of posts. According to her, therefore, not only
creation of new posts but the exercise of filling in existing sanctioned posts after
they fall vacant, is also prohibited. She submits that all employers governed by the
said earlier decision, are expected to evaluate workload available with them
because of advance in technology and redetermine the complement i.e number of
teaching and non-teaching staff required. Unless and until such staff justification is
worked out and it is sanctioned by competent authority, even an existing vacancy
cannot be filled in.
6. She invited our attention to Exh,."X", to urge that therein because of
this position and inability on part of respondent no.2 to permit the petitioners to fill in
vacancy, via media prescribed in G.R. dated 15th March 2012 has been pointed out.
She submits that petitioners should take recourse to it and fill in the vacancy after
31st October, 2017. After the staff justification with petitioners is approved, steps to fill
in the post of Principal on permanent basis can be initiated. She therefore submits
that the grievance made is erroneous.
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7. In brief reply, Advocate Naik points out that efforts have been made by
petitioners to obtain sanction to staff justification after 2012 continuously every year.
Last staff approval has been granted in the year 2012 and post of Principal has been
shown sanctioned in it. Thereafter every year, in proportion with number of students
taking education, necessary proposal for sanctioning the staff strength has been
submitted, but those proposals submitted since 2013 are still under consideration of
Department.
8. He points out that G.R. dated 15th March 2012 speaks of minority
institution and petitioners before this Court do not fall in that category. He further
submits that to reduce burden on public exchequer, effort of respondents is to reduce
number of sanctioned posts. The policy decisions mentioned supra, therefore, prohibit
creation of and sanction to new posts and do not pertain to existing vacancies.
According to him, the words "creation of posts" and "recruitment" need to be
interpreted together and recruitment only to new posts is prohibited.
9. He points out that when petitioners are in a position to fill in vacancy of
Principal permanently as per law before 31st October 2017, the respondents cannot
force it to fill in the same on officiating basis.
10. In view of these arguments, with the assistance of respective counsel
we have perused the papers. It appears that on 22.8.2017 petitioners have written to
respondent no.2 pointing out that as per last staff approval granted on 18.12.2012,
the post of Principal is sanctioned and it is becoming vacant on 31.10.2017 after
superannuation of the incumbent. They have also mentioned that roster requirement
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has been examined by the Assistant Commissioner of Backward Cell and as post is
isolated, the Backward Cell has replied that roster does not apply to it. The respondent
no.3-University has also given 'no objection' to fill in that post on 23rd August, 2017
from open category.
11. Thus, with these clearances and no objection, petitioners have
approached the office of respondent no.2 and sought necessary permission.
12. Insofar as the alleged bar in various GRs mentioned supra is
concerned, the basic document appears to be G.R. dated 11th February, 2016 issued
by Finance Department. It is on subject of review of existing number of approved/
sanctioned post in various departments and for modifying the complement. This G.R.
mentions that considering the alterations in working pattern, increasing use of modern
technologies the manual workload is reduced day-by-day and hence it has become
necessary to give up such unnecessary/superfluous posts. This G.R. therefore directed
that all administrative departments should accordingly review staff strength with them
and obtain approval to revised staff strength by September,2016. It further mentions
that post continuing on temporary basis were given life from 1.3.2016 upto 30th
September, 2016 and if such approval to revise staffing strength is not obtained, the
burden of wages payable to such holders of temporary posts would be entirely of
the concerned Department.
13. On 16.9.2016 this time limit given upto end of September, 2016 was
increased to end of April,2017 and on 25th May 2017 new deadline prescribed was
31st August, 2017.
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14. In this challenge, we do not find it necessary to comment on object of
State Government behind issuing these policy decisions. It is not in dispute that after
approval granted in 2012, various proposals submitted by petitioners from time to time
are still under consideration and have not been either rejected or approved.
15. The petitioners run a College and in such a touching institute, the
posts on teaching side or on non-teaching side are sanctioned in proportion to
strength of students. If the strength of students increases, number of posts increase
and if the strength decreases the number of posts also decrease. The question
therefore is whether the alleged use of modern technologies or advances in office
work can be co-related with this activity of teaching. If it can be, the revised student-
teacher ratio could have been pointed out by respondents to petitioners and they
could have been thereafter required to work out the strength of teaching and non-
teaching staff with them, but that has not been done.
16. It is known to everybody that such a ratio of staff-student strength is
applicable on uniform basis to all institutes receiving Government aid in entire State
and therefore it is not left to the discretion of a particular employer to work out for its
own college or school. This ratio is therefore required to be worked out by State
Government only and then the strength of students and requirement of staff is
evaluated and determined accordingly. This ratio is predetermined and on the basis
of that ratio the requirement of staff is worked out.
17. In recent matter, insistence of respondents is upon employers, to
reduce number of superfluous posts i.e. posts found in excess with them. Whether
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there can be such an insistence for an educational institute in absence of any
predetermined ratio therefore is the question which really needed answer. The order
dated 3rd October 2017 produced at Exh. "X" today does not consider this aspect at
all.
18. Here, we are satisfied that petitioners have got a sanctioned post of
Principal. There is only one post of Principal and hence it is highly improbable that
said post would be rendered surplus and therefore recruitment thereto may be
unwarranted. Considering the facts at hand, we find application of mind in Exh.X
unsustainable. The so called rationalization or adoption to modern technique /method
cannot have any impact on an isolated post of Principal of a College. The petitioners
cannot be forced to accept any provisional or officiating arrangement. The petitioners
have already prepared themselves for filling in the posts on permanent basis on
superannuation of present incumbent.
19. In this situation, we quash and set aside the communication dated
10.7.2017 at Annexure "G' and also the order dated 3.10.2017 at Exh.'X'.
20. We direct the respondent no.2-Joint Director, to give necessary
permission to petitioners to fill in the post of Principal which is falling vacant on
31.10.2017, at the earliest.
21. Rule is made absolute in the aforesaid terms, with no order as to
costs.
JUDGE JUDGE
sahare
