Bombay High Court
Dr. Babasaheb Ambedkar Memorial ... vs The Presiding Officer, ... on 22 September, 2017
Bench: S.C. Gupte
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 4497 OF 2015
1] Dr. Babasaheb Ambedkar Memorial
Society,
Old Warora Naka, Ram Nagar Road,
Diksha Bhumi, Civil Line, Chandrapur,
Through its President.
2] The Principal,
Dr. Ambedkar Arts, Commerce and
Science College, Chandrapur. .....PETITIONERS
...VERSUS...
1] The Presiding Officer,
University and College Tribunal,
Nagpur.
2] Ku. Ujwala Anandrao Koche,
(Assistant Professor), Head of
Department, Department of
Physical Education,
C/o Dr. Ambedkar College,
Chandrapur.
3] Rashtra Sant Tukdoji Maharaj
Nagpur University, Nagpur.
Through its Vice Chancellor,
Maharajbag Marg, Nagpur. ...... RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Shri S. P. Bhandarkar, Advocate for the Petitioners.
Shri Rohit Joshi, Advocate for the Respondent Nos.2 and 3.
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CORAM : S. C. GUPTE, J.
nd SEPTEMBER, 2017.
DATE : 22
ORAL JUDGMENT :
This petition challenges an order passed by the
University and College Tribunal on 4th March, 2015. By the
impugned order, the College Tribunal allowed the appeal filed by
respondent No.2 challenging her termination from the post of
Assistant Professor and Head of the Department by the petitinoers.
The College Tribunal set aside the impugned order of termination
and directed the petitioners herein (original respondent Nos.1 and
2) to reinstate her in the Post of Assistant Professor and Head of
the Department in physical education with full back wages.
02] On 30th July, 2010, respondent No.2 was appointed to
the post of Physical Training Instructor and Assistant Professor in
the second petitioner-college. On and from 2 nd August, 2010, she
took over an Assistant Professor. The appointment was on
probation for a period of 2 years. On 18th June, 2012, the
petitioners terminated the services of respondent No.2 by issuing a
notice of termination effective from 17 th July, 2012 on the ground
that her performance was not found to be satisfactory. Being
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aggrieved, respondent No.2 challenged the order of termination by
way of an appeal before the College Tribunal, being Appeal No.
N-6-2012. On 4th March, 2015, the appeal was allowed by the
Tribunal. Being aggrieved, the petitioners have moved the present
petition under Articles 226 and 227 of the Constitution of India.
03] The case of respondent No.2, which was accepted by the
Tribunal, was that though her appointment order provided for a
probation period of 2 years, under regulations issued by the
University Grants Commission, the period of probation applicable
to the post of teacher in Universities and Colleges was one year,
extendable by a maximum period of one more year in case of
unsatisfactory performance and unless extended for such one more
year by a specific order, the confirmation at the end of one year
was automatic. These guidelines were adopted by the Government
of Maharashtra vide a Government Resolution dated 15th February,
2011.
04] Learned counsel for the petitioners submits that the
applicable provision for appointment and confirmation of a teacher
in a college affiliated to Nagpur University is Statute 53, which
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provides for probation of 2 years (24 months) from the date of
appointment; the Statute provides that at the end of the probation
period of 2 years, the teacher shall be either confirmed or his
services would be terminated provided that a notice of such
confirmation or termination, as the case may be, shall be given at
least one month before the due date. Learned counsel submits that
in the case of respondent No.2, such notice was issued in
accordance with the Statute on 18 th June, 2012. Learned counsel
submits that though UGC regulations are dated 30 th June, 2010,
they are applied to Universities in Maharashtra by the State
Government GR dated 15th February, 2011. It is submitted that the
appointment of respondent No.2 being prior to the date of such
application, the regulations cannot be applied to her case.
Alternatively, it is submitted that the power of the State
Government under Sub-Section (3) of Section 8 of the Maharashtra
Universities Act, 1994 to prescribe a standard 'code' inter alia for
appointment and absorption of teachers and their service
conditions, can be exercised only by prescribing a 'code'. It is
submitted that only when such 'code' is prescribed, the provisions
made in the 'code' shall prevail over the provisions in any Statute
framed under the University Act.
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05] Originally, the relevant statute, namely, Statute 53 of
Nagpur University, was issued under the Nagpur University Act,
1974. The Nagpur University Act was repealed by the Maharashtra
Universities Act, 1994. The statute framed under the Act, however,
as provided in Sub-Section (2) of Section 115 of the Maharashtra
Universities Act, continued in force insofar as it was not
inconsistent with any provision of the Maharashtra Universities Act.
Sub-Section (3) of Section 8 of the Maharashtra Universities Act
empowers the State Government to prescribe a standard code
providing for various matters including selection, appointment and
absorption of teachers and conditions of their service for affiliated
colleges and recognized institutions for the purpose of securing and
maintaining uniform standards. Any provision made in this behalf
by the State Government prevails over any statute, ordinance,
regulation or rule made under the Maharashtra Universities Act
and accordingly, the provisions made in such statutes, ordinances,
regulations or rules, as the case may be, which are inconsistent
with the provisions of the code prescribed by the State
Government, are invalid. Besides this provision, there are
regulations prescribed under the University Grants Commission
Act, 1956 ("UGC Act"). The UGC Act was enacted by the
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parliament under Entry 66 List 1 of Schedule-VII to the
Constitution to make provisions for co-ordination and
determination of standards in Universities. A University Grants
Commission ("UGC") has been established under this Act. One of
the functions entrusted to the UGC under the UGC Act is to provide
for and recommend measures necessary for improvement of
university education and advise universities upon actions to be
taken for the purpose of implementing such recommendations. The
UGC has been empowered to make regulations consistent with the
UGC Act and Rules made thereunder. Defining qualifications that
should be required of persons to be appointed to the teaching staff
of Universities and Colleges affiliated to them and their service
conditions including their confirmation etc. are matters covered by
Section 26(1)(e) and (g) of UGC Act, for which the UGC may make
regulations. The UGC has, accordingly, framed regulations called
the University Grants Commission (minimum qualifications for
appointment of teachers and other academic staffs in universities
and colleges and other measures for the maintenance of standards
in higher education) Regulations, 2010 ("Regulations"). These
Regulations apply to every University established or incorporated
by or under a Central Act, Provisional Act or State Act and every
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institution including a constituent or an affiliated college
recognized by the Commission in consultation with the University
under Clause (f) of Section (2) of the UGC Act. These Regulations
have come into effect on 30th June, 2010. The Regulations provide
for a minimum period of probation of one year (Clause 11.1)
extendable by a maximum period of one more year in case of
unsatisfactory performance. The Regulations provide (Clause 11.2)
that confirmation at the end of one year shall be automatic, unless
extended for another one year by a specific order passed before the
expiry of the first year. It is, thus, clear that on and from 30 th June,
2010, the provisions concerning probation and confirmation
contained in the regulations apply to the second petitioner-college.
Statute 53, or any appointment order made thereunder by the
second petitioner, has to make way for the provisions made in this
behalf by the Regulations. Accordingly, the confirmation of
respondent No.2, at the end of one year, i.e. on 1 st August, 2011
(respondent No.2 having been appointed on 30th July, 2010), was
automatic, since there was no extension for further one year by any
specific order in her case. Respondent No.2 having, thus, been
automatically confirmed, there is no question of termination with
effect from 17th July, 2012 on the ground of unsatisfactory
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performance during the period of her probation.
06] Learned counsel for the petitioners submits that these
regulations have to be adopted by the State Government. Learned
counsel submits that such adoption happened only on 15 th
February, 2011. Nothing in law is pointed out to this Court, which
requires the State Government to adopt the regulations by any
specific order so as to make them effective. The Regulations apply
by their own force and under the UGC Act, which is a Central
statute framed by the parliament under Entry 66 of List-1.
Assuming, however, that the regulations need adoption and
implementation by the State Government, such requirement is in
fact satisfied in the present case. The Government Resolution of
15th February, 2011 provides for implementation of the regulations,
particularly Clause 11 thereof alongwith all its sub clauses as it is.
07] Learned counsel for the petitioners, however, submits
that the resolution having been passed on 15th February, 2011, the
provisions thereof do not apply to the case of respondent No.2,
who was appointed on 30th July, 2010, i.e. before the date of the
Government Resolution. The Government Resolution provides that
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it shall be implemented with effect from 30 th June, 2010, that is to
say, from the date on which the regulations were brought into force
under the UGC Act. Even otherwise, the statutory presumption
against retrospective application of a legislation does not apply to
an enactment merely because a part of the requisites for its action
is drawn from a time antecedent to its passing. This famous maxim
from Maxwell on Interpretation of Statutes has been affirmed by
the Hon'ble Supreme Court in a number of cases including the
cases of State of Bombay ..vs.. Vishnu Ramchandra, reported in
AIR 1960 SC 7 1960-1-SCR 461 1960 Cr. L. J. 131, Sajjan
Singh..vs.. State of Punjab, reported in AIR 1964 Supreme
Court 464 and Dilip..vs..Mohd.Azizul Haq, reported in (2000) 3
Supreme Court Cases 607. Merely because respondent No.2 was
appointed prior to the date of the enactment, it cannot be said that
the enactment does not apply to her. For the purposes of
computing her probation period, her date of appointment may be
antecedent to the passing of the legislation and as such, may have
to be drawn from a time antecedent to the statute for an action
thereunder. It cannot be said that the statute does not apply to her
case for that reason.
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08] Even otherwise, under Sub Section (3) of Section 8 of
the Maharashtra Universities Act by which the University and the
second petitioner-college affiliated to it are governed in the present
case, the State Government has the power to prescribe by
notification a standard code providing for appointment related
matters concerning teachers of Universities and affiliated Colleges
including the conditions of their service for the purpose of securing
and maintaining uniform standards. When such code is prescribed,
the provisions made in the code prevail over any inconsistent
provision in any statute, ordinance, regulation or rule made under
the Maharashtra Universities Act. In the present case, the
notification by the State Government adopting the particular
regulations, namely, Regulations framed under the UGC Act,
satisfies the requirements of Sub-Section (3) of Section 8 and can
be termed as the standard code providing for matters mentioned
therein. This code, by virtue of Sub Section (3) of Section 8, shall
prevail over the provision made in Statute 53 to the contrary.
There is no force in the submission of learned counsel for the
petitioners that provisions of the notification of 15 th February,
2011, are not described as code. There is nothing magical about
the word 'code.' It means any system or collection of provisions
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dealing with the matters described in Sub-Section (3) of Section 8.
The provisions of the notification of 15th February, 2011, thus,
supersede any inconsistent provision contained in statute 53 with
effect from 30th June, 2010, and that includes the provision of
probationary period of two years.
09] In any view of the matter, there is no infirmity in the
impugned order passed by the College Tribunal, which grants relief
to respondent No.2 on the basis of the regulations. Whether by
their own force or by reason of their implementation by the State
Government with effect from 30 th June, 2010, the regulations
supersede Statute 53 as well as the appointment order made
thereunder. The writ petition is, accordingly, dismissed. No order
as to costs.
JUDGE
PBP
