Dr. Chandraprakash Dattarao ... vs The Honble Chancellor, ...
2022 Latest Caselaw 4811 Bom

                                            1                                wp-2908-2021.odt




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

                     WRIT PETITION NO. 2908 OF 2021

    Dr. Chandraprakash Dattarao Khedkar,
    Aged 57 years, Occupation : Service,
    R/o Biyani Layout, Professor Colony, Pusad,
                                                                       Petitioner
    District : Yavatmal.

                        Versus
1. The Hon'ble Chancellor,
   Maharashtra Animal & Fishery Sciences
   University, having office at Rajbhawan, Malbar
   Hills, Mumbai - 440 035.

2. The Vice-Chancellor, Maharashtra Animal &
   Fishery Sciences University, having its office at
   Telangkhedi, Hanuman Temple Road,
   Nagpur-440 001.

3. The Maharashtra Animal & Fishery Sciences
   University, through its Registrar, having its office
   at Telangkhedi, Hanuman Temple Road,
   Nagpur - 440 001.

                                                                     Respondents


Mr. Amol B. Patil, Advocate for petitioner
Mr. S.V. Manohar, Senior Advocate & Mr. A.R. Patil, Advocate for
respondent Nos.2 and 3.



CORAM : MANISH PITALE, J.

RESERVED ON :                  20/04/2022

PRONOUNCED ON : 05/05/2022




::: Uploaded on - 05/05/2022                    ::: Downloaded on - 06/05/2022 08:22:16 :::
                                         2                                    wp-2908-2021.odt




JUDGMENT

Heard.

2. Rule. Rule is made returnable forthwith. Heard finally with the

consent of learned counsel appearing for the rival parties.

3. The petitioner is before this Court for the second time to agitate

grievance in respect of the manner in which his service stood

terminated and the avenue of appeal provided under the provisions of

the Maharashtra Animal and Fishery Sciences University Act, 1998

(hereinafter referred to as the Act of 1998). In the first round, the

petitioner had approached this Court by filing writ Petition

No.3777/2016, which stood disposed of by judgment and order dated

19/10/2018, whereby the order of respondent No.2 - Vice-Chancellor

of the said University dated 15/01/2014, dismissing the petitioner from

service with disqualification for future employment with Government,

was stayed, while the Executive Council of the said University was

directed to take up the appeal filed by the petitioner under Section

17(17) of the Act of 1998, including the question of maintainability of

3 wp-2908-2021.odt

the appeal.

4. It was further directed that if the decision of the Executive

Council was to be adverse to the interest of the petitioner, it would

remained stayed for a further period of 15 days from the date of

communication of the order. The subsequent events resulted in adverse

orders being passed against the petitioner, as a consequence of which, he

was constrained to file the present writ petition and to approach this

Court for the second time. On 17/08/2021, this Court directed the

parties to maintain status quo as regards the service of the petitioner,

due to which he has continued in service.

5. The facts in brief leading up to filing of the present writ petition

are that the petitioner being duly qualified was initially appointed as

Assistant Professor, Department of Dairy Microbiology at the College of

Dairy Technology, Pusad, District Yavatmal, which is a constituent

College of the respondent No.3 - University. Thereafter, the petitioner

was appointed as Associate Professor in the same department.

6. The Indian Council of Agricultural Research (ICAR) invited

concept notes for project under the theme of Sustainable Rural

4 wp-2908-2021.odt

Livelihood Security, to effectively implement a scheme under the

National Agriculture Innovation Programme (NAIP). The Vice-

Chancellor of the said University directed the petitioner to submit a

concept note on the above subject. The ICAR was satisfied with the

concept note and the presentation made by the petitioner and allotted

the said project to the respondent - University, as a lead center. This

project was to be implemented by the respondent - University with

other Universities as consortium partners. The petitioner was appointed

as the Consortium Principal Investigator (CPI) and other co-

Investigators were appointed from various Institutions.

7. In October 2010, a complaint was submitted by the Sarpanch of

Grampanchayat, village Shekapur and Keroli, District Nanded, alleging

that the project was improperly implemented. The said complaint was

forwarded by the respondent - University to the petitioner. He

submitted clarifications along with necessary documents. But, on

07/05/2011, the petitioner was suspended and a departmental enquiry

was initiated against him. A parallel enquiry was also conducted by the

officers of NAIP, New Delhi, to enquire into the alleged irregularities

concerning the said project. It is the allegation of the petitioner that

such parallel enquiry was conducted by the NAIP behind his back,

5 wp-2908-2021.odt

although the petitioner had addressed numerous communications to

the respondent - University with a request to permit him to participate

in such parallel enquiry. In the said parallel enquiry, the NAIP itself

excluded expenditure to the tune of Rs.1,42,57,636/- and certain

observations were made. According to the petitioner, the said report

became the basis of the departmental enquiry conducted against him

and without proper application of mind, it was concluded that the

entire aforesaid amount was to be recovered from him.

8. On the basis of the findings in the said enquiry report, after

issuing show cause notice to the petitioner, on 15/01/2014, the

respondent No.2 - Vice-Chancellor of the University issued order

dismissing the petitioner from service with disqualification from future

employment under the Government, with a further direction to recover

the aforesaid amount from the him. The said order was passed by the

respondent No.2 - Vice-Chancellor of the University under Section

17(2),(4),(5) and (16) of the Act of 1998. Hence, the petitioner filed

the appeal before the Executive Council of the respondent - University

under Section 17(17) of the Act of 1998.

9. The Executive Council directed the respondent No.3 -

6 wp-2908-2021.odt

University to make presentation to justify the charges levelled against

the petitioner and after hearing the petitioner as well as the respondent

No.3 - University, on 26/06/2015, a resolution was passed by the

Executive Council forwarding the explanation of the petitioner along

with documents. On 26/06/2015, the Executive Council passed a

resolution stating that since the enquiry could not be completed till the

said date, the petitioner be reinstated with immediate effect and the

respondent No.3 - University was requested to enquire into the

aforesaid project of NAIP through a retired High Court Judge and to

complete the enquiry within four months. Since the respondent No.3 -

University did not implement the said resolution, the Executive

Council again resolved on 25/08/2015, reiterating its earlier decision

and resolution passed on 26/06/2015. The respondent No.2 - Vice-

Chancellor of the University was aggrieved by the said resolution and

hence, he preferred an appeal under Section 17(18) of the Act of 1998,

before the respondent No.1 i.e. the Hon'ble Chancellor of the

University. The aforesaid appeal was rejected as not maintainable on

the ground that the Vice-Chancellor could not be an aggrieved person

by the decision / resolution of the Executive Council.

10. Thereupon, the respondent No.3 - University immediately

7 wp-2908-2021.odt

preferred a reference before the Hon'ble Chancellor against the said

resolution of the Executive Council, requesting the Hon'ble Chancellor

to invoke powers under Section 14(5) of the Act of 1998. By an order

dated 12/05/2016, the Hon'ble Chancellor allowed the reference made

by the respondent No.2 - Vice-Chancellor, exercising powers under

Section 14(5) of the Act of 1998 and thereby annulled the aforesaid

resolution Nos.38/2015 and 50/2015, dated 26/06/2015 and

25/08/2015. The Hon'ble Chancellor held in the said order dated

12/05/2016, that the respondent No.2 - Vice-Chancellor could have

invoked powers under Section 17(16) of the Act of 1998, only in case of

an emergency and since the order dismissing the petitioner was passed

after a detailed departmental enquiry, it could not be said that

emergency powers had been invoked and consequently the appeal

under Section 17(17) of the Act of 1998, was not maintainable.

11. The petitioner filed the aforesaid writ petition bearing No.

3777/2016, before this Court, challenging the said order passed by the

Hon'ble Chancellor. On 19/10/2018, this Court disposed of the

aforesaid writ petition, considering various issues arising in the matter,

including the interpretation of relevant provisions of the Act of 1998.

This Court allowed the writ petition set aside the order dated

8 wp-2908-2021.odt

12/05/2016, passed by the Hon'ble Chancellor. The order dated

15/01/2014, passed by the respondent Vice-Chancellor, whereby the

petitioner was dismissed from service, was stayed till final decision of

the Executive Council and it was further directed that if the decision of

the Executive Council was to be adverse to the interest of the petitioner,

it would remained stayed for a further period of 15 days from the date

of communication of the order. The Executive Council was directed to

reconsider the whole matter, including the objection regarding

maintainability of the appeal, in the light of Section 17(17) of the Act of

1998 and Clause 6 of Statute 19 of the respondent - University.

12. Pursuant thereto, the Executive Council of the respondent -

University held a meeting on 26/08/2019 and passed resolution

No.59/2019, holding that the appeal filed by the petitioner under

Section 17(17) of the Act of 1998, was maintainable. On 10/01/2020,

the Executive Council passed resolution No.97/2019, constituting an

expert committee of 8 members to verify the facts in the matter of

alleged financial irregularities committed by the petitioner, concerning

the said project implemented under the aegis of ICAR and NAIP. It

was also resolved that a one-man fact-finding committee of a retired

High Court Judge would determine the extent of involvement of the

9 wp-2908-2021.odt

petitioner. It was also resolved that 50% arrears of the petitioner shall

be released, till the final decision by the Executive Council of the

University.

13. The respondent No.2 - Vice-Chancellor again filed a reference

on 05/02/2020, under Section 14(5) of the Act of 1998, before the

respondent No.1 i.e. the Hon'ble Chancellor to annul the said

resolutions bearing Nos.59/2019 and 97/2019, passed by the Executive

Council of the University on 26/08/2019 and 10/01/2020, respectively.

14. On 04/09/2020, the respondent Vice-Chancellor filed additional

grounds in the aforesaid reference and the Hon'ble Chancellor issued

notice on 09/10/2020, keeping the hearing of the said reference at

Mumbai on 12/10/2020. The petitioner filed reply alongwith

documents in the above reference. Hearing of the matter was

conducted before the Hon'ble Chancellor on 27/10/2020. Thereafter,

the Hon'ble Chancellor issued another notice dated 21/6/2021, to

which the petitioner submitted his reply on 03/07/2021.

15. In the interregnum, the Hon'ble Chancellor issued show cause

notice to the Executive Council of the University as to why the

10 wp-2908-2021.odt

aforesaid resolution No.59/2019, dated 26/08/2019, ought not be

annulled, in pursuance of which the respondent - University again

appears to have convened a special meeting on 20/05/2021. A fresh

resolution was passed in the said meeting under the respondent No.2 -

Vice-Chancellor as the Chairperson and it was resolved that the appeal

filed by the petitioner under Section 17(17) of the Act of 1998, was not

maintainable.

16. Thereafter on 29/07/2021, the Hon'ble Chancellor passed the

impugned order and annulled the aforesaid resolution No.59/2019,

dated 26/08/2019, passed by the Executive Committee. As a

consequence, on 03/08/2021, the respondent No.2 - Vice-Chancellor

passed an order holding that the directions given by this Court in the

judgment and order dated 19/10/2018, passed in Writ Petition No.

3777/2016, stood complied with and stay granted in the said judgment

and order of 15 days would expire and the order of dismissal would

stand revived. Aggrieved by the said order dated 29/07/2021, passed by

the Hon'ble Chancellor and the order dated 03/08/2021, passed by the

Vice-Chancellor of the University, as also the resolution dated

20/05/2021, passed by the Executive Council of the respondent No.3 -

University, the petitioner filed the present writ petition, wherein notice

11 wp-2908-2021.odt

for final disposal was issued and by order dated 17/08/2021, the parties

were directed to maintain status quo as regards service of the petitioner.

Admittedly, the petitioner has continued in service in view of the said

interim order granted by this Court.

17. Mr. Amol Patil, the learned counsel for the petitioner submitted

that the petitioner stood dismissed from service as far back as on

15/01/2014 and after all these years the petitioner is back to square one,

only on the question as regards the remedy available to him against the

said order of dismissal from service. It was submitted that for all these

years, the grievance of the petitioner has not been addressed on merits

at all and he is constrained to run from pillar to post, only on the

question of the avenue of appeal / remedy available to him in the

context of the order of dismissal from service. It is submitted that, but

for this Court granting relief of reinstatement as per the judgment and

order dated 19/10/2018, passed in Writ Petition No.3777/2016, the

petitioner would have suffered even more.

18. The learned counsel for the petitioner submitted that a perusal of

the order dated 15/01/2014, whereby he was dismissed from service

would show that it was expressly passed under Section 17(16) of the Act

12 wp-2908-2021.odt

of 1998 and consequently, the appeal under Section 17(17) thereof,

was clearly maintainable. It was submitted that the Executive Council

of the University had resolved twice regarding the maintainability of the

said appeal. Reliance was placed on Resolution No.59/2019, dated

26/08/2019, of the Executive Council of the respondent University, to

contend that the appeal was indeed maintainable. It was submitted that

the aforesaid resolution and the subsequent Resolution No.97/2019,

dated 10/01/2020, passed by the Executive Council of the respondent

- University were in consonance with the provisions of the Act of 1998.

It was only because the said resolutions had opened up the question of a

detailed enquiry into the matter, which would include role of

respondent No.2 - Vice-Chancellor and other officers of the University

in the alleged irregularities concerning the aforesaid project, all efforts

were being made by the respondent No.2 - Vice-Chancellor to scuttle

the said resolutions, by wrongly claiming that the appeal under Section

17(17) of the Act of 1998, was not maintainable. It was submitted that

the observations made by this Court in the earlier judgment and order

dated 19/10/2018, passed in Writ Petition No.3777/2016,

demonstrated that the subsequent action on the part of the respondent

No.2 in hurriedly holding a meeting of the Executive Council of the

University on 20/05/2021 and passing the review Resolution No.

13 wp-2908-2021.odt

SP1/2021, to resolve that the appeal was not maintainable, was an

action in the teeth of the statutory provisions and it was wholly

unsustainable.

19. It was further submitted that a proper interpretation of the

provisions of the Act of 1998, read with Statute 19 of the respondent -

University, as also Statute 169 would show that the only avenue of

appeal available to the petitioner was before the Executive Council of

the University under Section 17(17) of the said Act. It was submitted

that the Grievance Committee constituted under Statute 19 of the

University consisted of the respondent No.2 - Vice-Chancellor himself

as the Chairman and other officers, including the Registrar and

Comptroller as members thereof. It was submitted that an appeal

before the aforesaid Grievance Committee would be meaningless,

because it would be an appeal from the order of the Vice-Chancellor to

the Grievance Committee of which the Vice-Chancellor himself is the

Chairman.

20. As regards the Appellate Authority under Statute 19(6) of the

University, it was submitted that such an appellate authority was never

appointed and it was very recently that a retired District Judge was

14 wp-2908-2021.odt

appointed as an Appellate Authority. As regards the applicability of

Statute 169 and on that basis the applicability of the Maharashtra Civil

Services Rules (hereinafter referred to as MCSR), it was submitted that

a proper interpretation of the said Statute read with Sections 62(b) and

2(11) of the Act of 1998, would show that such recourse to the

aforesaid Rules was not available in the case of the petitioner. On this

basis it was submitted that the only remedy of appeal available to the

petitioner against the order of dismissal from service dated 15/01/2014,

was the appeal provided before the Executive Council under Section

17(17) of the Act of 1998, particularly when the said order was

specifically issued under Section 17(16) of the Act of 1998.

21. It was vehemently submitted that the respondent Nos.2 and 3

had acted in the aforesaid manner, only with a view to avoid detailed

enquiry as regards the role of respondent No.2 - Vice-Chancellor and

other officers of the University in respect of the irregularities

concerning the said project and that the impugned actions were in the

teeth of the statutory scheme, as well as a specific direction given by this

Court while disposing of Writ Petition No.3777/2016. On this basis, it

was submitted that the present writ petition deserved to be allowed.

15 wp-2908-2021.odt

22. On the other hand, Mr. S.V. Manohar, learned Senior Counsel

appearing for respondent Nos.2 and 3 submitted that no interference

was warranted in the impugned orders and resolution, for the reason

that they were all in tune with the statutory scheme contemplated under

the Act of 1998. It was submitted that mere wrong nomenclature or

reference to a wrong provision in the order dated 15/01/2014,

dismissing the petitioner from service, would not amount to the said

order having been issued under the said wrongly quoted provision. It

was submitted that reference to Section 17(16) of the Act of 1998, in

the aforesaid order dated 15/01/2014, was a case of wrong quotation,

for the reason that the respondent No.2 - Vice-Chancellor had

obviously not exercised any emergency power as contemplated under

Section 17(16) of the Act of 1998.

23. It was an admitted position that a detailed departmental enquiry

was conducted against the petitioner under the MCSR and the order of

dismissal from service was issued after such detailed enquiry had

resulted in a report rendering adverse findings against the petitioner.

On this basis, it was submitted that in the order of dismissal from

service dated 15/01/2014, reference to Section 17(2), (4), (5) of the

Act of 1998, was justified because the said provisions concerned the

16 wp-2908-2021.odt

power of respondent No.2 - Vice-Chancellor of exercising general

control over the affairs of the University as well as ensuring that the

provisions of the Statute and Regulations were faithfully observed as the

Vice-Chancellor is responsible for proper administration of the

University, including financial administration. It was submitted that

the contents of the order dated 15/01/2014, whereby the petitioner was

dismissed, demonstrated that reference to Section 17(16) pertaining to

action that the Vice-Chancellor could undertake in case of emergency,

was obviously a case of wrong quotation / reference to the provision and

this could not enure to the benefit of the petitioner.

24. It was submitted that when the order itself could not be said to be

issued under Section 17(16) of the Act of 1998, the appeal provided

under Section 17(17) of the Act of 1998, was clearly not available to

the petitioner and that, therefore, the Hon'ble Chancellor was justified

in invoking powers under Section 14(5) of the Act of 1998, to annul

Resolution No.59/2009, dated 26/08/2019. The learned Senior

Counsel placed reliance on the judgment of the Hon'ble Supreme

Court in the case of Lekhraj Sathramdas Lalvani Vs. N.M. Shah,

Deputy Custodian Cum Managing Officer, Bombay and others

reported in AIR 1966 SC 334; State of Karnataka Vs. Muniyalla

17 wp-2908-2021.odt

reported in (1985) 1 SCC 196 and Super Cassettes Industries Limited

Vs. State of Uttar Pradesh and another reported in (2009) 10 SCC 531.

25. The learned Senior Counsel further submitted that the Hon'ble

Supreme Court had deliberated upon the nature of emergency powers

that could be exercised by the Vice-Chancellor concerning a similar

Statute i.e. Marathwada University Act, 1974, in the case of

Marathwada University Vs. Seshrao Balwant Rao Chavan reported in

(1989) 3 SCC 132. The aforesaid judgment indicated the extent of

such power and in what circumstances emergency power could be

exercised. The learned Senior Counsel for respondent Nos.2 and 3 also

relied upon judgment of the Hon'ble Supreme Court in the case of

Sahiti and others Vs. Chancellor, Dr. N.T.R. University of Health

Sciences and others reported in (2009) 1 SCC 599, to make

submissions as regards the role of the Vice-Chancellor of the University.

On this basis, it was submitted that the Executive Council of the

University had obviously erred in issuing Resolution No.59/2019 dated

26/08/2019, to resolve that the appeal filed by the petitioner under

Section 17(17) of the Act of 1998, was maintainable.

26. It was also submitted that such resolution passed by the majority

18 wp-2908-2021.odt

members of the Executive Council ought not to prevail over the

position of law based on proper interpretation of the provisions of the

Act of 1998. It was further submitted that even if this Court was to

interfere with the subsequent Resolution No. SP1/2021 dated

20/05/2021, passed by the respondent No.3 - University, earlier

resolution also ought to be set aside, because interference with only the

subsequent resolution would lead to restoration of the earlier

resolution, which on a proper interpretation of the Act of 1998, is

wholly illegal and unsustainable. For this proposition, the learned

Senior Counsel appearing for respondent Nos.2 and 3 relied upon the

judgment of the Hon'ble Supreme Court in the case of Bhartiya Seva

Samaj Trust through President and another Vs. Yogeshbhai Ambalal

Patel and another reported in (2012) 9 SCC 310.

27. Considering the submissions made on behalf of the rival parties,

this Court perused the documents on record, as also the provisions of

the Act of 1998 and relevant Statutes framed thereunder. The rival

parties have addressed this Court on the basic question as to whether

the petitioner could maintain the appeal under Section 17(17) of the

Act of 1998, before the Executive Council of the respondent -

University against the order dated 15/01/2014, passed by the

19 wp-2908-2021.odt

respondent No.2 - Vice-Chancellor, dismissing the petitioner from

service. By the impugned order dated 29/07/2021, the Chancellor has

held that such an appeal before the Executive Council was not

maintainable and, on that basis, power under Section 14(5) of the Act

of 1998, has been exercised to annul Resolution No.59/2019, dated

26/08/2019, passed by the Executive Council of the University. The

nature of the order dated 15/01/2014, will have to be considered, in

order to reach a conclusion as to whether it could be said to be an order

passed by the respondent No.2 - Vice-Chancellor by invoking Section

17(16) of the Act of 1998.

28. Before proceeding to annul the contents of the said order, it

would be appropriate to refer to the judgments relied upon by the

learned Senior Counsel for respondent Nos.2 and 3 as regards the

nature of an order, which quotes a wrong provision. In the case of

Lekhraj Sathramdas Lalvani Vs. N.M. Shah (supra), the Hon'ble

Supreme Court held that the validity of an order has to be judged on a

consideration of its substance and not its form. It was held that when

an authority passes an order, which is within its competence, it cannot

fail merely because it purports to be made under a wrong provision.

The emphasis has to be on the actual existing authority under which the

20 wp-2908-2021.odt

order is passed and under which it would have validity rather than one

under which it would be void. Similarly, in the case of State of

Karnataka Vs. Muniyalla (supra), it was held that mere recital of wrong

provision of law does not have the effect of invalidating an order, which

is otherwise within power of the authority making the order. In the case

of Super Cassettes Industries Limited Vs. State of Uttar Pradesh (supra),

the Hon'ble Supreme Court held that mere omission or error in quoting

a provision would not affect the maintainability of an appeal, if

otherwise the order impugned is amenable to appeal.

29. Hence, it becomes clear that while construing the powers

exercised by an authority while issuing an order, the substance of the

order is to be appreciated and not its form. Applying the said dictum to

the order dated 15/01/2014, passed by the respondent No.2 - Vice-

Chancellor dismissing the petitioner from service, it is seen that in the

said order, detailed references are made to the departmental enquiry

conducted against the petitioner.

30. The respondent No.2 - Vice-Chancellor quoted the charges

levelled against the petitioner and the findings in the report of the

departmental enquiry, and upon agreeing with such findings, the

21 wp-2908-2021.odt

respondent No.2 - Vice-Chancellor stated that the order was being

passed under Section 17(2),(4),(5) and (16) of the Act of 1998. A

perusal of Section 17 and the aforesaid sub-sections (2),(4) and (5)

thereof shows that the Vice-Chancellor has relied upon his power of

exercising general control over the affairs of the University, to ensure

that the provisions of the Act of 1998 are faithfully observed as the

Vice-Chancellor is responsible for the proper administration, including

financial administration of the University. Reference is also made to

sub-section (16) of Section 17 of the Act of 1998, which pertains to

power that can be exercised by the Vice-Chancellor in an emergency,

requiring immediate action on his part. The contents of the order dated

15/01/2014, show that while reference to Section 17(2), (4) and (5) of

the Act of 1998, is in terms of the observations and findings in the said

order, reference to Section 17(16) of the Act of 1998, is wholly

misplaced and not in tune with the contents of the said order.

31. Thus, it is a clear case of misquoting of the provision by the Vice-

Chancellor, while issuing the order of dismissal of service against the

petitioner. Applying the ratio of the aforesaid judgments of the

Hon'ble Supreme Court, it becomes clear that the substance of the

order dated 15/01/2014, has to be appreciated over its form. Merely

22 wp-2908-2021.odt

because, the respondent - Vice-Chancellor referred to sub-section (16)

of Section 17 of the Act of 1998, which pertains only to exercise of

power in emergency situation, it could not lead to a conclusion that the

said order dated 15/01/2014, was passed under the aforesaid provision.

Thus, it becomes clear that the order dated 15/1/2014, in its substance

was not an order passed under Section 17(16) of the Act of 1998,

notwithstanding the fact that the aforesaid provision was indeed

referred to by the Vice-Chancellor, while issuing the said order.

32. Once this conclusion is reached, it becomes clear that Section

17(17) of the Act of 1998, would not be available to the petitioner for

preferring an appeal before the Executive Council. This would become

further clear if sub-sections (16) and (17) of Section 17 of the Act are

perused, which read as follows:

"17. .......

(1) to (15).......

(16) In any emergency which, in the opinion of the Vice- Chancellor, requires that immediate action should be taken, he shall subject to the control of the Pro- Chancellor, take such action which he deems necessary and shall at the earliest opportunity thereafter report his action to the Executive Council and to such other authority or officer as would have in the ordinary course, dealt with the matter.

23 wp-2908-2021.odt

(17) Where any action taken by the Vice-Chancellor under the last preceding sub-section affects any person in the service of the University to his disadvantage such person may prefer an appeal to the Executive Council within thirty days from the date on which such person has received notice of the action taken, and the Executive Council shall consider the appeal at its next meeting and shall give its decision within three months from the date of appeal."

33. What is significant is that it has to be determined as to whether,

as a matter of law and interpretation of the aforesaid provision of the

Act of 1998, in the facts of the present case, it could be said that the

petitioner could have filed an appeal before the Executive Council of

the respondent - University under Section 17(17) of the Act of 1998.

This aspect was not discussed or adverted to by the Executive Council

of the respondent - University, while passing Resolution No.59/2019

dated 26/08/2019. A perusal of the resolution shows that the members

of the Executive Council by majority held that the said appeal of the

petitioner was maintainable. No amount of majority of the members of

the Executive Council can over-ride the position of law that emerges

from appropriate interpretation of Section 17(16) and (17) of the Act

of 1998.

34. A perusal of the impugned order dated 29/07/2021, passed by

the Hon'ble Chancellor would show that after referring to the facts of

24 wp-2908-2021.odt

the case in detail, the Hon'ble Chancellor has correctly found that in

Resolution No.59/2019, dated 26/08/2019, the Executive Council of

the respondent No.3 - University held the appeal filed by the petitioner

as maintainable, only because the majority of the members of the

Executive Council of the respondent No.3 - University were of the

opinion that the appeal filed by the petitioner was maintainable. It is on

the basis of correct interpretation of Section 17(16) and (17) of the Act

of 1998, that the Hon'ble Chancellor found that the aforesaid

resolution / decision of the Executive Council of the respondent No.3 -

University was not in conformity with the provisions of the Act of

1998, as a consequence of which the power under Section 14(5) of the

Act of 1998, was invoked by the Hon'ble Chancellor to annul the

aforesaid Resolution No.59/2019, dated 26/08/2019. This Court is of

the opinion that the Hon'ble Chancellor was justified in passing the

impugned order dated 29/07/2021, as the same was passed on a correct

interpretation of the provisions of the Act of 1998. Section 14(5) of

the Act of 1998, reserves power with the Hon'ble Chancellor to annul

such proceedings that are not in conformity with the provisions of the

Act of 1998. Therefore, the challenge raised on behalf of the petitioner

against the said order passed by the Hon'ble Chancellor must fail.

25 wp-2908-2021.odt

35. Insofar as the impugned order dated 03/08/2021, passed by the

respondent No.2 - University is concerned, it is an order passed as a

consequence of the impugned order dated 29/07/2021, passed by the

Hon'ble Chancellor. But, even if the said impugned order dated

03/08/2021, could be sustained, it would lead to a situation where the

petitioner would be facing dismissal from service, despite not having

had an opportunity to challenge the original order of the Vice-

Chancellor dated 15/01/2014, on merits by approaching the appellate

authority under the provisions of the Act of 1998. In view of the

observations made in favour of the petitioner in the earlier judgment in

Writ Petition No.3777/2016, this Court is of the opinion that the

effect of the order dated 03/08/2021 and the earlier original order of

the respondent - Vice-Chancellor dated 15/01/2014, ought to be kept

in abeyance in the interest of justice to grant an opportunity to the

petitioner to approach the appellate authority to raise his grievance on

merits against the said orders. This is particularly because this Court in

the aforesaid earlier judgment and order dated 19/10/2018, passed in

Writ Petition No.3777/2016, found that the petitioner ought to be

reinstated in service, while he may exhaust remedies available to him

under the Act of 1998.

26 wp-2908-2021.odt

36. This Court has held that the respondent No.2 - Vice-Chancellor

indeed exercised powers of general supervision and administration of

the respondent - University while issuing the order date 15/01/2014,

dismissing the petitioner from service after perusing and analyzing

various provisions of the Act of 1998, particularly Section 17 thereof.

Respondent Nos.2 and 3 are justified in relying upon the judgments of

the Hon'ble Supreme court in the cases of Marathwada University Vs.

Seshrao Balwant Rao Chavan and Sahiti and others Vs. Chancellor, Dr.

N.T.R. University of Health Sciences (supra), concerning similar

Statutes, wherein the Hon'ble Supreme Court has deliberated upon and

expounded the powers of the Vice-Chancellor of the University.

Analysis of Section 17 of the Act of 1998, in the light of the law laid

down by the Hon'ble Supreme Court in the aforesaid judgments, shows

that the order dated 15/01/2014, issued by the respondent No.2 -

Vice-Chancellor was certainly not under Section 17(16) of the Act of

1998, which concerns only an emergency situation and the powers to

be exercised by the Vice-Chancellor in such a situation.

37. In the light of the fact that this Court is not with the petitioner

on the question of maintainability of the appeal before the Executive

Council of respondent No.3 - University under Section 17(17) of the

27 wp-2908-2021.odt

Act of 1998, the subsequent impugned Resolution No. SP1/2021,

dated 20/05/2021, passed by the Executive Council of the University

does not deserve interference. In the light of the said finding, this Court

is not required to refer to the position of law relied upon by the

respondent Nos.2 and 3, as laid down by the Hon'ble Supreme Court

in the case of Bhartiya Seva Samaj Trust through President and another

Vs. Yogeshbhai Ambalal Patel (supra), wherein it is clarified that the

Court should not set aside an illegal order if its effect is to revive

another illegal order.

38. But, the discussion in the present case cannot stop at the point

when this Court holds that the appeal under Section 17(17) of the Act

of 1998, against the order dated 15/01/2014, was not maintainable.

The learned counsel for the petitioner has expressed anguish on the

aspect that despite number of years passing by, the petitioner is still at

the stage of the remedy of appeal available to him and his grievance on

merits is yet to be addressed. The learned Senior Counsel appearing for

respondent Nos.2 and 3 has countered the said contention by

submitting that the availability of alternative avenue of appeal was

argued in the earlier round before this Court in Writ Petition

No.3777/2016 and that this Court had also adverted to the same. It

28 wp-2908-2021.odt

was submitted that even in the operative portion of the judgment and

order dated 19/10/2018, whereby Writ Petition No.3777/2016 was

disposed of, this Court had directed the Executive Council of

respondent No.3 - University to reconsider the question of

maintainability of the appeal preferred by the petitioner in the light of

Section 17(17) of the Act of 1998, as well as Clause 6 of Statute 19,

framed under the provisions of the Act of 1998. Thus, according to

respondent Nos.2 and 3, the blame for delay in consideration of the

grievance of the petitioner on merits could not be placed at the door of

the said respondents.

39. It is a matter of fact that even as on today the grievance of the

petitioner on merits with reference to order of dismissal of service

passed on 15/01/2014, has not been considered at any level. Therefore,

it needs to be examined as to the avenue of the appeal available to the

petitioner in respect of the said original order dated 15/01/2014, passed

by respondent No.2 - Vice-Chancellor.

40. In this context, it was submitted on behalf of the petitioner that

under Statute 19(1) of the respondent - University, there was no

question of the petitioner filing an appeal before the Grievance

29 wp-2908-2021.odt

Committee for the reason that the Vice-Chancellor himself is Chairman

of the Committee and all other members are officers inferior in position

to the Vice-Chancellor. There is substance in the aforesaid contention

for the reason that the original order dated 15/01/2014, dismissing the

petitioner from service was passed by the Vice-Chancellor himself and

the appeal before the Grievance Committee of which the Vice-

Chancellor himself is the Chairman, would lead to an illusory appeal

and the same authority would be sitting in appeal over its own order.

Hence, the petitioner is justified in contending that he could never have

approached the Grievance Committee for University employees under

Statute 19(1) of the respondent - University. It was also brought to the

notice of this Court that when the petitioner was constrained to

approach this Court in the first round by filing Writ Petition

No.3777/2016, the Executive Council of the respondent - University

had not appointed the appellate authority as contemplated under

Clause 6 of the Statute 19 of the University. In fact, it was submitted

that such appellate authority was never appointed since the inception of

the University. But, the rival parties conceded that, as on today, there is

indeed a retired District Judge appointed as appellate authority by the

Executive Council of respondent - University. It is specifically

provided under Statute 19(6) of the University that such an appellate

30 wp-2908-2021.odt

authority shall entertain the appeals in respect of the original orders

passed by the Vice-Chancellor of the University. It is provided therein

that the Registrar or his representative shall be the Presenting Officer

on behalf of the University and that proceedings of such meetings shall

be conducted as per procedure laid down under the Maharashtra

Discipline and Conduct Appeal Rules, 1979.

41. In this context, reference was made to Statute 169 of the

University, which pertains to the applicability of MCSR and various

Rules framed in that context to the employees of the Institutions under

the University. Submissions were made on behalf of the rival parties

with reference to Section 2(11) and Section 62(b) of the Act of 1998.

While the learned counsel for the petitioner submitted that a proper

interpretation of Statute 169 of the University in the backdrop of the

aforesaid two provisions would show that the MCSR and other Rules

framed in that context would not be applicable to the petitioner,

submissions were made to the contrary by the learned counsel

appearing for respondent Nos.2 and 3.

42. Statute 169 of the University provides that various Rules of the

MCSR specified therein are applicable to the employees of recognized

31 wp-2908-2021.odt

Institutions other than those recognized for research and specialized

higher learning. Section 2(11) of the Act of 1998 defines "recognized

institution" to mean an institution for research or specialized studies,

other than a constituent college, recognized or deemed to be recognized

by the University. Section 2(3) of the Act of 1998 in turn defines

"constituent college" to mean a college specified in the First Schedule

and which is under the direct management of the University. There is

no dispute that the institution in which the petitioner is working is

indeed specifically included in the list of colleges in the First Schedule.

Section 62(b) of the Act of 1998 provides that, on and from the

appointed day the colleges specified in the First Schedule shall stand

transferred to the University and shall be deemed to be the constituent

colleges of the University. Thus, a conjoint reading of the said

provisions of the Act of 1998 with Statute 169 of the University does

show that the petitioner is justified in contending that the Rules of

MCSR specified in Statute 169 of the University would not be

applicable to him, as he is an employee of a constituent college

specifically included in the First Schedule to the Act of 1998.

43. But, that in itself cannot take away the applicability of Statute

19(6) of the University, even if reference is made therein to

32 wp-2908-2021.odt

Maharashtra Discipline and Conduct Appeal Rules, 1979. This is for

the reason that as per Statute 19(6) of the University, only the

proceedings of the meetings of the appellate authority provided therein,

in an appeal against an original order of the Vice-Chancellor, are to be

conducted as per procedure laid down in the Maharashtra Discipline

and Conduct Appeal Rules, 1979. The appellate authority under the

said Statute is a retired District Judge appointed by the Executive

Council of the University. In other words, the appeal under Statute

19(6) of the University is before the appellate authority specified

therein and not as per the Maharashtra Discipline and Conduct Appeal

Rules 1979, while only the procedure of the meetings conducted by the

appellate authority is to be as per the said Rules. Thus, even if the

contention raised on behalf of the petitioner in respect of Statute 169 of

the University is to be accepted, applicability of Statute 19(6) cannot be

taken away and the petitioner can file appeal before the aforesaid

appellate authority specified therein.

44. Accordingly, it is held that the appeal filed by the petitioner

before the Executive Council of the University under Section 17(17) of

the Act of 1998, was not maintainable. He is entitled to file an appeal

against the original order of the Vice-Chancellor dated 15.01.2014

33 wp-2908-2021.odt

before the appellate authority under Statute 19(6) of the University. If

the petitioner files such an appeal within four weeks from today, the

said appellate authority under Statute 19(6) of the University shall

entertain the same and proceed to decide the same in accordance with

law. The effect and operation of the order dated 15.01.2014, passed by

the respondent Vice-Chancellor shall remain stayed during pendency of

the appeal and in case an adverse order is passed against the petitioner

in the appeal, the stay hereby granted shall operate for a further period

of 15 days from the date of communication of the order of the said

appellate authority to the petitioner. In view of these directions, the

order dated 03.08.2021 passed by the respondent Vice-Chancellor is

rendered meaningless. The Writ Petition stands disposed of.

45. Rule made absolute in above terms with no order as to costs.

Pending applications, if any, stand disposed of.

JUDGE

MP Deshpande