Bombay High Court
Nitin Chudaman Jadhav vs The State Of Maharashtra And Others on 14 August, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:17992-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5746 OF 2018
WITH
CIVIL APPLICATION NO.2297 OF 2024
Dr. Nitin s/o Chudaman Jadhav,
Age: 40 years, Occu.: Service,
R/o. Flat No.204, Shivnayan Apartment,
Ahmednagar, Dist. Ahmednagar. .. Petitioner
Versus
1. The State of Maharashtra
Through its Secretary,
Department of Medical Education,
Mantralaya, Mumbai-32.
2. The Director of Ayurved,
Dr. Thadani Marg, Khanna Construction
House, Worli, Mumbai.
3. The Maharashtra University of Health
Sciences, Nashik,
Through its Registrar.
4. The Divisional Commissioner,
Nashik Division, Nashik
Through its Backward Class Cell.
5. Gangadhar Shastri Gune Ayurvedic
College, Ahmednagar,
Through its Principal.
6. Dr. Prerna M. Dighe @
Dr. Prerna S. Bafna,
Age : , Occu.: Service,
R/o : Flat No.4, Swastik Residency,
Bhavaninagar, Ahmednagar.
7. The Secretary,
Ayurved Shastra Seva Mandal,
Vishram Baug, Maliwada,
Ahmednagar. .. Respondents
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_____________________________________
Senior Advocate Mr. V. D. Sapkal i/by Mr. Yuvraj S. Choudhari,
Advocate for the Petitioner.
Mr. P.S. Patil, Addl.GP for Respondent No.1 & 4/State.
Mr. S.V. Natu, Advocate for Respondent No.2.
Mr. A.S. Bayas, Advocate for Respondent No.3 (Absent)
Mr. A.D. Ostwal, Advocate for Respondent No.6.
____________
CORAM : MANGESH S. PATIL AND
SHAILESH P BRAHME, JJ.
RESERVED ON : 19 JULY 2024
PRONOUNCED ON : 14 AUGUST 2024
JUDGMENT [Per Shailesh P. Brahme J.] :-
Rule. Rule is made returnable forthwith. Heard both the
sides finally.
2. Petitioner who is a teacher of the respondent no.5/Private
Ayurvedic College, is seeking directions to promote him to the
post of Professor in the same college and consequentially praying
for forwarding proposal to the respondents for grant of approval
to it.
3. Petitioner is rendering services with the respondent no.5 as
a lecturer in subject Kayachikitsa from 10.08.2006. He was given
approval by the respondent no.3/University vide order dated
29.06.2012. He was appointed as Associate Professor vide
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appointment order dated 07.11.2017. The post of Professor in
the subject Kayachikitsa was vacant since 30.04.2015. He made
applications on number of occasions to the respondent
no.5/College for promoting him to the vacant post of Professor.
As no steps were taken, he is constrained to approach this Court.
The Professors and Associate Professors in Maharashtra
Ayurvedic Service Group - A and Assistant Professors in
Maharashtra Ayurvedic Service Group - B", in the Government
Ayurvedic Colleges under the Directorate of Ayurved
(Recruitment) Rules, 2013 (for the sake of brevity hereinafter
referred to as the "Rules of 2013"), were promulgated by the
Government of India. It provides that the post of Professor
should be filled in by promotion or nomination in the ratio of
50:50. Though the petitioner is eligible, no steps have been
taken to promote him to the post in question.
4. The petition was amended by adding newly appointed
teacher as Respondent no.6. But there is no corresponding
amendment to pleadings and prayer of petitioner.
5. Learned Senior Counsel Mr. V.D. Sapkal appearing for the
petitioner submits that aided post of Professor should be filled in
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by promotion as on the last occasion, it was filled in by direct
recruitment/nomination. Despite fulfilling eligibility criteria, the
petitioner has not been promoted to the post, deliberately. He
would submit that respondent/College has misrepresented the
authorities in stating that post would be filled in by direct
recruitment. The appointment of respondent no.6 is patently
illegal and therefore only temporary approvals are granted to her
from time to time. He would submit that it would be
misconception to treat the post as earmarked for physically
handicapped person. He would vehemently submit that Rules of
2013 would govern the appointments.
6. It is further submitted that no permission or approval was
given by the respondent no.2/Director to the respondent
no.5/College to fill in the aided post of Professor in Kayachikitsa
by direct recruitment. He would submit that the letter dated
13.02.2024 issued by the Principal of respondent no.5/College to
the respondent no.2 would indicate that post in question was to
be filled in by promotion. The appointment of the respondent
no.6 is on unaided post and on temporary basis.
7. Learned AGP would rely on the affidavit-in-reply. He would
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submit that post of Professor in Kayachikitsa was verified by the
Divisional Commissioner, B.C. Cell and held to be post of
nomination. According to him Government issued G.R. dated
28.07.2017 and 22.01.2018 laying down procedure for
recruitment of teachers. The petitioner's claim that post in
question is promotional one, is misconceived.
8. Learned Counsel for the respondent no.5 would oppose the
petition by tendering across the bar affidavit-in-reply. He would
submit that as per the letter dated 22.04.2016 issued by the
Assistant Commissioner, Backward Classes Cell, the post was to
be filled in by direct recruitment. The Joint Director instructed
management vide letter dated 02.06.2016 to reserve a post for a
handicapped person. The Post of Professor (Kayachikitsa) was
filled in by direct recruitment, through handicapped category.
9. It is further contended that the advertisement was got
approved from the University. By following due procedure of law,
respondent no.6 was appointed vide letter dated 03.06.2015
which was approved initially for one year only. Thereafter also
she was appointed and was granted approval. Lastly, the
approval was for two years with effect from 24.01.2024. The
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Joint Director, Pune was informed regarding appointment of
respondent no.6.
10. The respondent no.6 would oppose the petition by filing
affidavit-in-reply. Her case is that she is a woman and having
53% disability. She possesses requisite certificates. She was
appointed to the post in question by nomination by following due
procedure of law. There was recommendation of the Selection
Committee to her appointment. The appointment was approved
by the respondent/University. It is vehemently contended that
post in question was to be filled in by nomination and not by way
of promotion in view of sanction of roster vide order dated
22.04.2016. Learned Counsel would submit that petitioner was
not eligible as he was promoted to the post of Associate
Professor on 07.11.2017. He did not participate in the direct
recruitment process.
11. Learned Counsel would submit that the management had
solicited permission vide letter dated 07.12.2015 to fill in post of
Professor by nomination. He would also refer to interim orders
passed by the High Court in Writ Petition No.9662/2017 filed by
Kisan Vidya Prasarak Sanstha. As the appointments of the
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respondent no.6 have been approved by the University, the same
cannot be doubted. It is further contended that no prayer has
been made by the petitioner to challenge appointment of the
respondent no.6.
12. He would rely upon the decision of the Supreme Court in
the matter of Brahmo Samaj Education Society & Ors vs State Of
West Bengal & Ors., AIR 2004 SC 3358. It is further submitted
that the respondent/University formulated promotion rules, 2007
and as per Rule -4, when a candidate for promotion is not
available in the College, the post can be filled in by direct
recruitment. Therefore, management resorted to the procedure
of direct recruitment. Lastly he would pray to dismiss the
petition.
13. We have considered the rival submissions of the parties.
Petitioner was appointed in the respondent no.5/College as a
Lecturer from 10.08.2006. He was promoted to the post of
Associate Professor for the subject Kayachikitsa on 07.11.2017.
The post of Professor fell vacant due to the superannuation of Mr.
P.S. Pawar on 30.04.2015. The respondent no.6 was directly
recruited to the post of Professor (Kayachikitsa) vide order dated
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03.07.2015. She was given further appointment vide order dated
25.04.2017. Her appointment was approved on a temporary
basis on couple of occasions. Last such approval was of
09.02.2024 with effect from 24.01.2024.
14. Petitioner and respondent no.6 stake rival claim to the post
of Professor in Kayachikitsa. The controversy pertains to mode
of appointment to the post in question. There is no dispute that
Mr. P.S. Pawar, who superannuated on 30.04.2015, was
appointed to the post of Professor by way of nomination. We
have to take into account relevant rules to determine as to the
mode of filling in the post in question.
15. The petitioner refers to rules of 2013. Relevant rules are as
follows :
Rule 3. Appointment to the post of Professor in the Maharashtra Ayurvedic Service, Group 'A', in
the Government Ayurvedic College in the Directorate shall be made either,_
(a) by promotion of a suitable person on the basis of strict selection with due regards to
seniority from amongst the person holding the post of Associate Professor having not less than five
years regular service in the post;
Provided that, Associate Professor in Sanskrit or Sanskrit Samhita Siddhanta who do not
possess qualification prescribed for appointment by nomination under clause (b) (ii) of this rule,
will not be eligible for promotion on the post of Professor in Ayurveda Subject.
OR
(b) by nomination from amongst the candidates, who,_
(i) are not more than fifty years of age :
Provided that, the age limit may be relaxed by five years in case of candidates who are already in
the service of Government; and
(ii) Possess qualification mentioned in Parts A, A-1, B or C in the Scheduled appended to the
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Maharashtra Medical Practitioner's Act, 1961 (Mah.XXVIII of 1961) or an equivalent time, under
the Central Council of Indian Medicine Act, 1970 (48 of 1970) and possess post-graduate degree in
concerned subject of Ayurveda, obtained from Recognized Institute :
(iii) possess total teaching experience of ten years in the concerned Ayurvedic subject out of
which there should be five years teaching experience as Associate Professor in the concerned
Ayurvedic subject from Recognized Institution;
(iv) possess adequate knowledge of English, Marathi, Sanskrit and Hindi language.
Provided that, preference may be given to those candidates whose original research paper been
published in indexed journals on National level or books in Ayurvedic recognized by Central Council
of Indian Medicine.
Rule 7. Appointment to the posts mentioned in rule 3 and 4 by promotion and nomination shall be
made in the ratio of 50:50.
16. It is clear from Rule No.3 that appointment to the post of
Professor would be made either by promotion or by nomination
and the ratio is to be maintained as 50:50. Earlier,
respondent/University also floated rules 2007 for the promotion
of the teachers in the private aided and unaided colleges. It's
clause no.1(c) also stipulates ratio of 50:50 for appointment to
the post of Professor, either by promotion or nomination. We
have not been pointed out any other statutory provision, Rule or
policy to provide anything contrary to the rules of 2013 or 2007.
If the earlier appointment of Mr.P.S. Pawar was by nomination
then by way of rotation, the mode of appointment should have
been by promotion only.
17. The above referred position is fortified by correspondence
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made by respondent/College to the Joint Director of Ayush on
17.01.2024, showing vacant post of Professor for Kayachikitsa
was to be filled in by promotion and further communication to
the Director of Ayush dated 13.02.2024 on the same line.
18. The respondent/Management sought permission for
recruitment to the post of Professor by nomination vide
correspondence 07.12.2015. However, there is no material on
record to show that such permission was ever expressly given by
the respondent nos. 2 to 4. No prior permission was given by the
respondent nos.2 to 4 appointing a candidate to the post of
Professor by nomination.
19. The respondents have relied upon verification dated
07.04.2016 conducted by the Assistant Commissioner, Backward
Classes Cell which was communicated vide 22.04.2016. At serial
no.10 post of Professor (Kayachikitsa) is mentioned and it is also
mentioned that direct recruitment 100%. There is nothing in the
communication to indicate that the post of Professor in
Kayachikitsa was instructed to be filled in by nomination. The
mode of filling in post of Professor is prescribed by Rules of 2013
read with Rules of 2007 issued by the respondent/University. It
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would not be within the power of the Assistant Commissioner
Backward Classes Cell to prescribe mode of appointment. He is
empowered to verify the roster, backlog if any and policy of
reservation. Therefore, we are of the considered view that the
communication dated 22.04.2016 cannot be construed as any
permission or instruction issued by Backward Classes Cell to the
respondent/Management to fill in the post of Professor by
nomination. We do not approve submission advanced by the
respondents in this behalf.
20. The respondent no.6 was appointed as a Professor initially
by order dated 03.06.2015 and by further orders. Though her
appointments were approved by the respondent/University, the
approvals were temporary in nature and for particular period.
The respondent no.6 did not challenge the temporary approval.
Her case was that the post was to be filled in by nomination and
her selection was in accordance with law. Then, there was no
reason to grant approval to her appointments temporarily.
21. Though pendency of the writ petition no. 9662/2017 filed
by Kisan Vidya Prasarak Sanstha and the interim orders passed
therein are cited as a reason for not regularizing the appointment
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of the respondent no.6, those were not the orders in rem. Those
interim orders were applicable to the parties to the petition and
not to the parties before us. There was no blanket prohibition for
any other Ayurved Colleges in the State of Maharashtra for
undertaking process for appointment to the post of Professor.
22. The respondent/Management undertook impermissible
mode for filling in post of Professor. As on the last occasion, Mr.
P.S. Pawar was appointed by nomination this time, it was the
turn of promotion. The petitioner, therefore, rightly not
participated in the recruitment process. Though there is
recommendation of the Selection Committee in favour of the
respondent no.6, the mode undertaken for the recruitment to the
post of Professor was bad in law. The respondent no.6 was not
given permanent approval.
23. We have examined the eligibility criteria for the post of
Professor. According to Rules besides educational qualification,
experience of 10 years as a lecturer or experience of five years
as an Associate Professor would be good enough for the post in
question. Considering petitioner's initial appointment as a
lecturer from 10.08.2006, he was holding requisite experience
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and eligible to claim the post of Professor. The respondent/
Management should have promoted and forwarded the proposal
of the petitioner to the competent authority, seeking approval for
the promotion. Due to the appointment of respondent no.6,
petitioner is denied promotional post which is arbitrary and
capricious.
24. Learned Counsel for the respondent no.6 refers to decision
rendered by the Supreme Court in the matter of Brahmo Samaj
Education Society (supra). There cannot be any quarrel about
the ratio laid down therein. But the private management could
not have trammelled right to appoint candidate to the post in
question. The right of the management to appoint a candidate to
a particular post is regulated by the Rules and the norms. In the
present matter, we have recorded that there is violation of the
norms in treating the post in question as directly recruitable post
in stead of promotional one. The judgment is not applicable to
the case in hand.
25. The petitioner did not amend the prayer clause despite
impleading respondent no.6. No prayer is made to challenge the
appointment of respondent no.6. But we have found that the
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appointment of respondent no.6 is bad in law. The post in
question cannot be said to be occupied. Despite that, there is no
prayer challenging appointment of respondent no.6, there is no
impediment for us to grant relief to the petitioner under Article
226 of the Constitution of India. We, therefore, pass following
order :
ORDER
(i) The respondent no.5 shall treat post of Professor
(Kayachikitsa) as promotional post for the present rotation and
promote the petitioner to the post.
(ii) The respondent no.5 shall forward the proposal for grant of
approval to the promotion of the petitioner to the respondent
no.2 and 3.
(iii) The proposal shall be decided within a period of four weeks.
(iv) The Civil Application is disposed of.
(v) Rule is made absolute in the above terms.
SHAILESH P. BRAHME MANGESH S. PATIL
JUDGE JUDGE
najeeb..
