Kishor S/O Sitaram Borkar vs University Grants Commission, ...
2022 Latest Caselaw 6415 Bom

     Judgment                             1     M.C.A.No.1040.2019.odt




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

       MISC. CIVIL APPLICATION (REVIEW) NO. 1040 OF 2019
                               IN
               WRIT PETITION NO. 4873 OF 2011 (D)


      Kishor S/o Sitaram Borkar,
      Aged about 46 years, Occ. - Nil,
      R/o At Po. Girgaon,
      Tah. Nagbhid, Dist. Chandrapur.
                                                .... APPLICANT
                                              (Original Petitioner)

                            // VERSUS //

1)    University Grants Commission,
      Through its Secretary,
      having its office at Bahadur Shah
      Jafar Marg, New Delhi.

2)    Rashtrasant Tukdoji Maharaj
      Nagpur University, through its
      Registrar.

3)    Govind Prabhu College of Arts and
      Commerce, through its Principal,
      Talodhi, Tah. Nagbhid, Balapur,
      Dist. Chandrapur.

4)    Kalyan Education Society,
      through its Secretary,
      C/o "Unmesh", 103, Tikekar Road,
      Dhantoli, Nagpur.

5)    Joint Director (Higher Education),
      Nagpur Division, Nagpur.

6)    Gondwana Vidyapith,
      having its office at MIDC Road,
      Gadchiroli.
      Judgment                         2            M.C.A.No.1040.2019.odt




7)    Nitesh Ramchandra Ramteke,
      Aged about 44 years, Occ. Service,
      R/o C/o Govindprabhu College
      of Arts and Commerce, through
      its Principal, Talodhi, Balapur,
      Tah. Nagbhid, Dist. Chandrapur.
                                                .... RESPONDENTS
                                             (Original Respondents)
______________________________________________________________
Mr. P.D. Meghe, Advocate for Applicants/Petitioners.
Mr. Arun Agrawal, Advocate for Respondent No.1.
Mr. S.M. Puranik, Advocate for Respondent No.2.
Mr. B.G. Kulkarni, Advocate for Respondent Nos.3 and 4.
Mr. M.J. Khan, Assistant Government Pleader for Respondent No.5.
Mr. Sandeep Marathe, Advocate for Respondent No.6.
______________________________________________________________


                 CORAM : SUNIL B. SHUKRE AND
                         G.A. SANAP, JJ.

DATED : 07.07.2022

ORAL JUDGMENT : (Per Sunil B. Shukre, J.)

1. Heard Mr. P.D. Meghe, learned counsel for the review

applicant/original petitioner, Mr. Arun Agarwal, learned counsel for

Respondent No.1 - University Grant Commission, Mr. S.M. Puranik,

learned counsel for Respondent No.2 - Nagpur University, Mr. B.G.

Kulkarni, learned counsel for Respondent Nos.3 and 4 - Management

of the colleges, Mr. M.J. Khan, learned Assistant Government Pleader

for Respondent/State and Mr. Sandeep Marathe, learned counsel for

Respondent No.6 - Gondwana University.

Judgment 3 M.C.A.No.1040.2019.odt

2. It is the contention of the learned counsel for the Petitioner

that the Petitioner was appointed as a lecturer way back in the year

2004, for one academic session and therefore, such continuation,

according to learned counsel, showed that the Petitioner was in service.

It is submitted that the Petitioner who was in service at the time when

the communication was issued by the University Grant Commission

(UGC) granting exemption to the lecturers appointed before

11.07.2009 from the requirement of NET-SET qualification, if those

lecturers had obtained M.Phil. or Ph.D. qualification before the cut-off

date 11.07.2019 and therefore, the Petitioner was entitled to be

continued as a lecturer. It is further submitted that this aspect of the

matter has not been considered in any way by the Division Bench,

whose judgment is now sought to be reviewed.

3. Mr. Meghe, learned counsel for the Petitioner further

submits that the Division Bench even did not consider the cases of Anil

S/o Namdeorao Therkar Vs. Gonwana University and another , Writ

Petition No. 1524 of 2014 and Vivek S/o Tulshiram Maske Vs.

Gondwana University and another, Writ Petition No. 1525 of 2014,

decided on 13.06.2014, in which the Petitioners were similarly situated

as the present Petitioner and those Petitioners were granted benefit of

the communication of the UGC granting exemption to those Petitioners

from the requirement of NET-SET qualification. He further submits

that these judgments were cited before the Division Bench but were not Judgment 4 M.C.A.No.1040.2019.odt

considered by the Division Bench. He also submits that the Division

Bench has also not given any reasons as to why the Division Bench

could not have considered those judgments.

4. Mr. Meghe, learned counsel for the Petitioner further

submits that in the Petitions, the Management of the Respondent

college was served, but did not appear and therefore, there was no

reason for the Division Bench to have concluded that the Petitioner did

not fulfill the criteria of UGC communication in question. He also

submits that reliance placed by the Division Bench on the judgment of

P. Sushila and others Vs. University Grants Commission and others,

(2015) 8 SCC 129 was misconceived as the observations of the Apex

Court made therein being relating to absence of right of the Petitioners

to seek exemption being in the context of different facts, was not

applicable to the facts of the present case.

5. Mr. Arun Agarwal and Mr. B.G. Kulkarni, learned counsel

for Respondent Nos.1, 3 and 4 respectively submit that its a fact

established on record that the Petitioners were appointed only as

contributory lecturers and they were continued as contributory

lecturers on academic session-to-academic session basis and that they

were never appointed as regular lecturers and, therefore, they did not

have any vested right to seek exemption from the criteria of NET-SET

qualification. They also submit that in the case of P. Sushila and others Judgment 5 M.C.A.No.1040.2019.odt

(supra), the Petitioners were similarly situated as the Petitioners here

in the sense that they were not in regular service and therefore, it was

held by the Apex Court that the Petitioners did not have any vested

right to seek exemption from the requisite qualification. Therefore,

according to them, there is no reason to review the judgment in

question.

6. The arguments so advanced on behalf of UGC and college

Management have been adopted by learned counsel for the Nagpur

University and Gondwana University.

7. On going through the documents placed on record and also

considering the averments made by the Petitioner, we find ourselves in

agreement with the arguments of learned counsel for the Respondents.

The Petitioner himself has submitted that he was appointed as a

contributory lecturer and was continued to be so on session-to-session

basis. Once it is found that the Petitioner was not a regular lecturer, it

cannot be said that the Petitioner would also have a right to seek

exemption from the NET-SET qualification on the ground that the

Petitioner fulfills the criteria of the UGC communication wherein the

cut-off date for grant of such exemption has been fixed to be

11.07.2009.

8. In the judgment in question, the argument of the learned

counsel for the Petitioner regarding his placing reliance upon the cases Judgment 6 M.C.A.No.1040.2019.odt

of Anil S/o Namdeorao Therkar (supra) and Vivek S/o Tulshiram

Maske (supra) has not been reproduced, nor these judgments have

been considered by the Division Bench. Therefore, now, it cannot be

ascertained as to whether or not these judgments were really cited

before the then Division Bench by the learned Counsel for the

Petitioner. If the learned counsel for the Petitioner had indeed cited

those judgments and they were not considered by the then Division

Bench, it was a case for seeking immediate review of the judgment in

question. But, the Petitioner chose to remain silent in the matter and

filed this review application in the year 2019 along with delay

condonation application. By that time, one of the judges, who was a

party to the judgment in question had retired in October 2018.

Therefore, now, this submission made on behalf of the Petitioner by his

learned counsel cannot be considered and cannot be made ground to

review the judgment in question. We also find that the Petitioner has

not made any prayer seeking regularization of his appointment as a

contributory lecturer with effect from the date on which he was first

appointed as a contributory lecturer. If the Petitioner had made such a

prayer, perhaps another perspective could have been added to the

whole matter and it may have led to some different result. But, that is

not the case here.

Judgment 7 M.C.A.No.1040.2019.odt

9. For these reasons, we do not find that there is any case

made out for reviewing the judgment in question, and that there is no

error apparent on the face of the record.

10 In spite of what we have observed above, we have tried to

take a sympathetic view in the matter considering the fact that the

Petitioner after having rendered service as a contributory lecturer for a

considerable period of time is without any service today. But, on being

asked by us, Mr. B.G. Kulkarni, learned counsel for the Respondent

Management submits that at present there is no vacancy available in

the college so as to accommodate the Petitioner. We would only

request the Management to consider the appointment of the Petitioner

as and when the vacancy arises, of course, as per the rules.

11. We, thus, find no merit in the review application. The

application is dismissed.

12. In view of disposal of the Civil Application, pending

application(s), if any, is/are disposed off.

                                         (G.A. SANAP, J.)                 (SUNIL B. SHUKRE, J.)



Digitally Signed By:KIRTAK
BHIMRAO JANARDHAN
Signing Date:08.07.2022
18:28
                         Kirtak