Bombay High Court
Balasaheb Tukaram Pote vs The State Of Maharashtra And Others on 25 October, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:26544-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4691 OF 2022
Balasaheb Tukaram Pote,
Age : 43 Years, Occu. : Service
As Assistant Professor,
R/o Ganraj Niwas, H. No. 1-3-2358,
Flat No. 2, Chanakyapuri,
Beed, Tq. & Dist. Beed. .. Petitioner
Versus
1. The State of Maharashtra,
Through Secretary
Higher and Technical Education
Department, Mantralaya,
Mumbai - 32.
2. The Director of Education
(Higher Education), Central
Building - III, B. J. Medical Road,
Pune.
3. Joint Director Higher Education,
Aurangabad Region,
Railway Station Road, Aurangabad.
4. Union of India,
Through its Secretary,
Ministry of Education,
Government of India,
New Delhi.
5. The University Grants Commission,
Bahadur Shaha Jafar Marg,
New Delhi.
6. Mrs. Kesharbai Sonajirao Kshirsagar
alias Kaku Arts, Science and Commerce
College, Beed, Tq. and
Dist. Beed. .. Respondents
WITH
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WRIT PETITION NO. 4698 OF 2022
Shrinivas Chandramoli Motekar,
Age : 42 Years, Occu. : Service
As Assistant Professor,
R/o 138/95, Shikshak Colony,
New Bhatwadgaon Vasahat,
Majalgaon, Tal. Majalgaon,
Dist. Beed. .. Petitioner
Versus
1. The State of Maharashtra,
Through Secretary
Higher and Technical Education
Department, Mantralaya,
Mumbai - 32.
2. The Director of Education
(Higher Education), Central
Building - III, B. J. Medical Road,
Pune.
3. Joint Director Higher Education,
Aurangabad Region,
Railway Station Road, Aurangabad.
4. Union of India,
Through its Secretary,
Ministry of Education,
Government of India,
New Delhi.
5. The University Grants Commission,
Bahadur Shaha Jafar Marg,
New Delhi.
6. Sunderrao Solanke Mahavidyalaya,
Majalgaon, Tq. Majalgaon,
Dist. Beed. .. Respondents
WITH
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WRIT PETITION NO. 4704 OF 2022
Vijayamala Tanaji Ghuge,
Age : 44 Years, Occu. : Service
As Assistant Professor,
R/o Shivnagar, Plot No. 23,
Near Ghati Hospital, Jalna,
Tq. and Dist. Jalna. .. Petitioner
Versus
1. The State of Maharashtra,
Through Secretary
Higher and Technical Education
Department, Mantralaya,
Mumbai - 32.
2. The Director of Education
(Higher Education), Central
Building - III, B. J. Medical Road,
Pune.
3. Joint Director Higher Education,
Aurangabad Region,
Railway Station Road, Aurangabad.
4. Union of India,
Through its Secretary,
Ministry of Education,
Government of India,
New Delhi.
5. The University Grants Commission,
Bahadur Shaha Jafar Marg,
New Delhi.
6. Rashtramata Indira Gandhi College,
Jalna, Tal & Dist. Jalna. .. Respondents
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WITH
WRIT PETITION NO. 4716 OF 2022
Vishal Vilasrao Naiknaware,
Age : 45 Years, Occu. : Service
As Assistant Professor,
R/o 'Muraliraj' Flat No. A2,
Varad Pride Residency,
Dhanura Road, Beed,
Tal & Dist. Beed. .. Petitioner
Versus
1. The State of Maharashtra,
Through Secretary
Higher and Technical Education
Department, Mantralaya,
Mumbai - 32.
2. The Director of Education
(Higher Education), Central
Building - III, B. J. Medical Road,
Pune.
3. Joint Director Higher Education,
Aurangabad Region,
Railway Station Road, Aurangabad.
4. Union of India,
Through its Secretary,
Ministry of Education,
Government of India,
New Delhi.
5. The University Grants Commission,
Bahadur Shaha Jafar Marg,
New Delhi.
6. Swa. Sawarkar Arts, Science and
Commerce College, Beed,
Tal & Dist. Beed. .. Respondents
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WITH
WRIT PETITION NO. 4720 OF 2022
Vikram Shivram Dhanve,
Age : 42 Years, Occu. : Service
As Assistant Professor,
R/o At/Post Shirsala, Tal. Parali,
Dist. Beed. .. Petitioner
Versus
1. The State of Maharashtra,
Through Secretary
Higher and Technical Education
Department, Mantralaya,
Mumbai - 32.
2. The Director of Education
(Higher Education), Central
Building - III, B. J. Medical Road,
Pune.
3. Joint Director Higher Education,
Aurangabad Region,
Railway Station Road, Aurangabad.
4. Union of India,
Through its Secretary,
Ministry of Education,
Government of India,
New Delhi.
5. The University Grants Commission,
Bahadur Shaha Jafar Marg,
New Delhi.
6. Shri Panditguru Pardikar Mahavidyalaya,
Shirsala, Tal. Parali, Dist. Beed. .. Respondents
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WITH
WRIT PETITION NO. 4731 OF 2022
Madan Kacharu Magare,
Age : 48 Years, Occu. : Service
As Assistant Professor,
R/o Tathagat, Plot No. 1868,
Vidhut Colony, Jafrabad,
Tal. Jafrabad, Dist. Jalna. .. Petitioner
Versus
1. The State of Maharashtra,
Through Secretary
Higher and Technical Education
Department, Mantralaya,
Mumbai - 32.
2. The Director of Education
(Higher Education), Central
Building - III, B. J. Medical Road,
Pune.
3. Joint Director Higher Education,
Aurangabad Region,
Railway Station Road, Aurangabad.
4. Union of India,
Through its Secretary,
Ministry of Education,
Government of India,
New Delhi.
5. The University Grants Commission,
Bahadur Shaha Jafar Marg,
New Delhi.
6. Siddarth Arts, Commerce and
Science College, Jafrabad,
Tal. Jafrabad, Dist. Jalna. .. Respondents
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Shri P. R. Katneshwarkar, Senior Advocate i/by Shri Anuj A.
Fulfagar, Advocate for the Petitioner in all matters.
Shri S. P. Joshi, A.G.P. for the Respondent Nos. 1 to 3 in all
matters.
Shri S. W. Munde, Standing Counsel for the respondent No. 5 in
all matters.
CORAM : MANGESH S. PATIL AND
SHAILESH P. BRAHME, JJ.
CLOSED FOR JUDGMENT ON : 08.10.2024
JUDGMENT PRONOUNCED ON : 25.10.2024.
JUDGMENT (Per Shailesh P. Brahme, J.) :
-
. Rule. Rule is made returnable forthwith. With the consent
of parties heard finally at the admission stage.
2. All these petitions raise identical controversy pertaining to
essential qualification for the promotional post of Associate
Professor. The facts are not in dispute much. We propose to decide
all the petitions by common judgment and order. For the sake of
convenience, we are referring to the paper book of Writ Petition
No. 4691 of 2022.
3. We will be using following abbreviations in the judgment to
avoid confusion.
(i) The University Grants Commission (Minimum
Qualifications for Appointment of Teachers and other
Academic Staff in Universities and Colleges and Measures
for the Maintenance of Standards in Higher Education) (4 th
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Amendment), Regulations, 2016 : Regulation of 2016
enforced from 11.07.2016
(ii) UGC Regulations on Minimum Qualifications for
Appointment of Teachers and Other Academic Staff in
Universities and Colleges and Measures for the
Maintenance of Standards in Higher Education, 2018 :
Regulation of 2018 enforced from 18.07.2018
(iii) Government Resolution dated 08th March 2019 issued by
the Higher and Technical Education Department,
Government of Maharashtra, Mantralaya, Annex,
Mumbai : G. R. dated 08.03.2019.
(iv) University Grants Commission ; U.G.C. .
(v) Approved Progression Indicator : A.P.I.
4. The petitioners are seeking declaration that Regulation of
2018 and G. R. dated 08.03.2019 apply prospectively and those are
not applicable to them and they are governed by Regulation of
2016. They are seeking quashment of Clause No. 3.8 of
Regulation of 2018 and Clause 4.8 of the G. R. dated 08.03.2019.
They are further seeking direction to promote them as Associate
Professors from level 12 to level 13-A from the date of the
eligibility with consequential benefits.
5. The petitioners are permanent employees of the respondent
No. 6 - colleges. They are claiming promotional posts of Associate
Professors, which are denied for want of qualification of Ph. D.
degree. They have put in 14 years of service. They comply with
requirements like A.P.I. as per U.G.C. norms and they have
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undergone requisite training programme. On the date of the
petitions, they were not having Ph. D. degree. The factual details
for which there is no controversy are as follows :
Sr. W. P. No. Name of Qualifi Post Initial date College
No. Petitioner cation of
Appointme
nt
1 4691/2022 Balasaheb B. Ed. Asst. 01.08.2006 Sau. K.S.K.
Tukaram M.A., Professor @ Kaku Arts,
Pote SET Science &
Commerce
College, Beed
2 4731/2022 Madan M.A. Asst. 23.12.2006 Siddharth
Kacharu NET, Professor College,
Magare Ph.D, Jafrabad,
(appear Jalna
ed)
3 4720/2022 Vikram M.A. Asst. 03.10.2006 Shri
Shivram NET, Professor Panditguru
Dhanve Ph.D, Pardikar
(on College,
going) Sirsala, Parli
Vaijnath,
Beed
4 4716/2022 Vishal M. Phil Asst. 15.10.2007 Swa.
Vilasrao M.Sc. Professor Sawarkar
Naiknawa Ph.D. Arts, Science
re (on and
going) Commerce
College,
Beed.
5 4704/2022 Vijaymala M. Sc. Asst. 28.09.2007 Rashtramata
Tanaji M. Phil Professor Indira
Ghuge Gandhi Arts,
Commerce
and Science
College,
Jalna.
6 4698/2022 Shriniwas M. Sc. Asst. 26.07.2007 Sunderrao
Chandram NET Professor Solanke
oli (twice) College,
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Motekar Majalgaon,
Beed
6. The petitioners claim that they were eligible for promotion
to the post of Associate Professor. The respondent No. 6 - colleges
forwarded requisition to screening - cum - evaluation Committee
for the assessment of the petitioners. Accepting the request, the
University constituted the Committee and the claims of the
petitioners were considered in its meeting dated 28.09.2020. The
Committee recommended them for further promotion as Associate
Professor. Dr. Babasaheb Ambedkar Marathwada University,
Aurangabad granted approval vide letter dated 22.10.2020. The
proposals were forwarded to respondent No. 3 - Joint Director for
further approval so as to secure requisite scale. Respondent No. 3
- Joint Director refused to grant approval to the promotions,
which is the cause of action for filing the petitions.
7. The petitioners' association made representations on
14.12.2020 agitating that the issue that Ph. D. was not the
requisite mandatory qualification for granting promotion for those
who were appointed before enforcement of Regulation of 2018.
There was correspondence and ultimately it was informed by the
respondent No. 5 - U.G.C. that its regulations are mandatory,
albeit, the core issue remained unanswered.
8. During pendency of the petitions, respondent No. 5 - U.G.C.
issued notification dated 06.06.2024 deleting Clause No. 6.3 from
(03rd amendment) Regulation 2023. The petitioners pressed into
service this notification to support their contention that they are
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governed by existing Regulation that is Regulation of 2016.
9. The learned senior advocate Mr. P. R. Katneshwarkar
appearing for the petitioners has advanced following submissions :
i) All the petitioners are complying with eligibility criteria set
out by Regulation of 2016. The acquisition of Ph. D. is not a
mandatory requirement and it is only to dispense with two
publications.
ii) The subsequent Regulation of 2018 and G. R. dated
08.03.2019 would operate prospectively and are not applicable for
the promotions of the petitioners.
iii) Even if Clause No. 6.3 of Regulation of 2018 and/or Clause
7.3 of the G. R. dated 08.03.2019 are made applicable, the
petitioners are governed by existing regulations that is Regulation
of 2016.
iv) Inaction on the part of the Joint Director to approve the
promotions of the petitioners is arbitrary and against U.G.C.
Regulations.
v) The regulations of U.G.C. shall prevail over the G. R. dated
08.03.2019.
10. The petitioners are placing reliance on the judgment of the
Supreme Court dated 21.10.2022 in the matter of Prof. Dr.
Sreejith P. S. Vs. Dr. Rajsree M.S. and others in Civil
Appeal Nos. 7634-7635 of 2022.
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11. The learned advocate of respondent Nos. 1 to 3 repelled the
submissions referring to their affidavit in reply. It is contended
that the petitioners are not having Ph. D. degree and they are not
eligible for the promotion in question. They are governed by the
Regulation of 2018 which are adopted by the State Government
vide G. R. dated 08.03.2019. It provides Ph. D. as a mandatory
qualification for promotion. It is contended that Regulation of
2018 and G. R. dated 08.03.2019 are prospective in nature and
would govern the petitioners' promotion. Reliance is placed on the
judgment of the Supreme Court dated 17.07.2023 in the
matter of Jagdish Prasad Sharma Vs. State of Bihar in
Civil Appeal Nos. 5527-5543 of 2013 and that of a division
bench of this Court dated 05.05.2022 in the matter of Dr.
Sharmila Sandesh Ghuge Vs. State of Maharashtra and
others in Writ Petition No. 3509 of 2021.
12. The respondent No. 5 also contested the petition by filing
separate affidavit in reply. Its learned advocate toed the same line
of submissions that Ph. D. degree is a mandatory qualification for
promotion to the post of Associate Professor.
13. The respondent Nos. 1 to 3 filed additional affidavit to deal
with the supervening event of issuance of notification dated
06.04.2024. They reiterated their earlier stand. It is further
contended that notification of 06.06.2024 has not been made
applicable by the State Government.
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14. Having heard both the sides elaborately a short issue is
posed for consideration as to whether acquisition of Ph. D. degree
is mandatory for granting promotion to the post of Associate
Professor from Assistant Professor. It needs to be clarified that
the screening cum evaluation committees have found the
petitioners eligible for granting them promotion to the post of
Associate Professors. There is no dispute as regards eligibility
criteria like previous experience, API score or the training
programme.
15. The petitioners are relying on Regulation of 2016. It does
not provide Ph. D. degree as a mandatory qualification for the
promotion to the, post of Associate Professor. The reference of 'Ph.
D.' holder occurring in the eligibility criteria is to dispense with
two publications. Similarly, reference to M. Phil is to dispense
with one publication. Certainly, it cannot be inferred that M. Phil
or Ph. D. is a mandatory qualification. It is relevant to reproduce
the eligibility criteria as per Regulation of 2016.
APPENDIX-III - TABLE : III
MINIMUM ACADEMIC PERFORMANCE AND SERVICE
REQUIREMENTS FOR PROMOTION OF TEACHERS IN
UNIVERSITIES AND COLLEGES
S. Promotion of Service Minimum Academic Performance
No. Teachers requirement Requirements and
through CAS Screening/Selection Criteria
1.
2.
3. Assistant Assistant (i) Minimum cumulative API scores
Professor Professors using the PBAS scoring proforma
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(Stage3) to with three developed by the UGC as per the
Associate years of norms provided in Table II (A).
Professor completed (ii) At least three publications in the
(Stage 4) service in entire period as Assistant Professor
Stage 3. (twelve years). However, in the case
of College teachers, an exemption of
one publication may be given to M.
Phil. Holders and an exemption of
two publications may be given to Ph.
D. holder.
(iii) One course / programme from
among the categories of methodology
workshops, Training, Teaching-
Learning - Evaluation Technology
Programmes, Soft Skills
development Programmes and
Faculty Development Programmes of
minimum one week duration.
16. Regulation of 2018 was enforced on 18.07.2018. The
following are the relevant clauses :
"3.8 The Ph. D. Degree shall be a mandatory qualification for
appointment and promotion to the post of Associate Professor.
6.3 The criteria for promotions under Career Advancement
Scheme laid down under these Regulations shall be effective from
the date of notification of these Regulations. However, to avoid
hardship to those faculty members who have already qualified or are
likely to qualify shortly under the existing regulations, a choice may
be given to them, for being considered for promotions under the
existing Regulations. This option can be exercised only within three
years from the date of notification of these Regulations.
6.4 STAGES OF PROMOTION UNDER THE CAREER
ADVANCEMENT SCHEME OF INCUMBENT AND NEWLY-
APPOINTED ASSISTANT PROFESSORS/ASSOCIATE
PROFESSORS/PROFESSORS
A. The entry-level Assistant Professors (Level 10) shall be eligible for
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promotion under the Career Advancement Scheme (CAS) through
two successive levels (Level 11 and Level 12), provided they are
assessed to fulfill the eligibility and performance criteria as laid down
in Clause 6.3. of these Regulations.
B. ......
I. .........
II. .........
III. Assistant Professor (Selection Grade/Academic Level 12) to
Associate Professor (Academic Level 13A) Eligibility:
1) Assistant Professor who has completed three years of service
in Academic Level 12/Selection-Grade.
2) A Ph.D. degree in subject relevant /allied/relevant discipline.
3) Any one of the following during the last three years:
completed one course / programme from amongst the
categories of Refresher Courses/ Methodology
Workshop/Syllabus Up-gradation Workshop/ Teaching
Learning-Evaluation Technology Programme/ Faculty
Development Programme of at least two weeks (ten days)
duration (or completed two courses of at least one week (five
days) duration in lieu of every single course/programme of at
least two weeks (ten days) duration); or completed one
MOOCs course (with ecertification); or contribution towards
development of e-contents in 4-quadrant(at least one
quadrant) minimum of 10 modules of a course/contribution
towards development of at least 10 modules of MOOCs
course/ contribution towards conduct of a MOOCs course
during the period of assessment. CAS Promotion Criteria: A
teacher may be promoted if; i) He/she gets a 'satisfactory' or
'good'grade in the annual performance assessment reports of
at least two of the last three years of the assessment period as
prescribed in Appendix II,Table 1, and ii) The promotion to
the post of Associate Professor is recommended by the
selection committee in accordance with these Regulations.
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17. The State Government for implementation of
recommendation of 7th Pay Commission adopted the norms laid
down by the UGC for the selection and promotion of the teachers
in the senior colleges. Accordingly, Government Resolution dated
08.03.2019 was issued adopting and reiterating the promotional
criteria of 2018 by following clauses.
GOVERNMENT RESOLUTION DATED 08 MARCH, 2019
1. ....
2. .....
4.8 The Ph.D. Degree shall be a mandatory qualification for
appointment and promotion to the post of Associate Professor.
7.3 The criteria for promotions under Career Advancement Scheme
laid down under these Rules shall be effective from the date of
notification of these Rules. However, to avoid hardship to those faculty
members who have already qualified or are likely to qualify shortly
under the existing Rules, a choice may be given to them, for being
considered for promotions under the existing Rules. This option can be
exercised only within three years from the date of notification of these
Rules.
18. The petitioners were appointed in the year 2006 or in the
year 2007. They rendered qualifying services. They are found to
be complying with other eligibility norms for the promotion to the
post of Associate Professors. The Regulation of 2016 does not
stipulate Ph. D. degree as a mandatory qualification as it is
expressly done by Clause 3.8 of Regulation of 2018 and 4.8 of G. R.
dated 08.03.2019.
19. Regulation of 2018 expressly provides vide Clause No. 1.3
that it came into force from 18th July 2018. There is no provision
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in Regulation of 2018 to infer that it has been made applicable
retrospectively. This Regulation is adopted by the State
Government vide G. R. dated 08.03.2019. Obviously, it cannot be
made applicable retrospectively. The petitioners became eligible
for the promotion before the enforcement of Regulation of 2018
and G. R. dated 08.03.2019. The learned Senior Counsel Mr. P. R.
Katneshwarkar is justified in contending that these norms are not
applicable retrospectively.
20. As we have recorded that Regulation of 2016 would apply, it
is not necessary to go into the niceties of Regulation of 2018 and
G. R. dated 08.03.2019. It is reiterated that qualification of Ph. D.
is made compulsory vide Regulation of 2018, which cannot be
made applicable retrospectively. The respondent No. 3 - Joint
Director has to conduct objective scrutiny of individual proposals
of the petitioners in the wake of Regulation of 2016.
21. The learned A. G. P. placed reliance on the judgment of the
division bench of this Court in the matter of Dr. Sharmila
Sandesh Ghuge Vs. State of Maharashtra and others
(supra). In that matter there was challenge to the corrigendum
dated 10.05.2019 modifying G. R. dated 08.03.2019 to the extent
of Clause 7.3(VI)(i). The controversy pertained to issue as to if the
date of promotion would be from eligibility or actual promotion.
Unlike the present matter the coordinate bench was not called
upon to decide as to whether Regulation of 2016 would apply or
Regulation of 2018. Therefore, though the challenge raised by the
petitioner in that matter was not accepted, the ratio laid down
therein is not applicable to the present case.
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22. Next reliance was on the judgment of the Supreme Court in
the matter of Jagdish Prasad Sharma Vs. State of Bihar
(supra). We have gone through para No. 64 and 65 of the
judgment. In that matter also controversy pertained to binding
effect of UGC regulations on the State enactments. The
controversy involved in the case in hand was not before the
Supreme Court. In the present case there is no state legislation
so as to fix the qualification/eligibility criteria for the promotion of
teachers in the senior colleges. The UGC regulations only are in
the field. This judgment is of no avail to the respondents.
23. The petitioners are relying on the judgment of the Supreme
Court in the matter of Prof. Dr. Sreejith P. S. Vs. Dr. Rajsree
M.S. and others (supra). In that case appointment of the
respondent as a Vice Chancellor of the University was challenged
by the appellant before the learned Single Judge of the Kerala
High Court on the ground that it was de hors the UGC guidelines.
The challenge failed on the ground that unless the UGC
regulations were adopted by the State Government, they would
not apply and act of the State would prevail. The matter was
carried to the division bench unsuccessfully. Thereafter matter
reached Supreme Court. Our attention is invited to paragraph
Nos. 8, 8.1, 8.3 and 8.5 of the judgment. The observations made
by the Supreme Court in the earlier judgment of Gambhirdan K.
Gadhvi Vs. State of Gujrat and others ; (2022) 5 SCC 179 were relied upon.
The ratio is that in the case of any conflict between state
legislation and the central legislation, the central legislation shall
prevail. UGC regulations are part of UGC Act i. e. central
19 wp 4691.22
legislation which would prevail. Ultimately, it was held that any
appointment in violation of UGC regulation shall be void ab initio
as regulations have overriding effect. We do not find any
similarity in the facts and the controversy in the case before the
Supreme Court and the one in the case in hand. This judgment is
also not applicable to the present case.
24. The subsequent event of issuance of Regulation on
06.06.2024 in our considered view has no bearing on the merits of
the matter. By this regulation Clause 6.3 of UGC Regulation (III)
Amendment Regulation 2023 has been deleted. It is not
demonstrated by the parties as to whether UGC Regulation III
Amendment of 2023 has any relevance. No such regulation is
placed on record.
25. The respondent No. 3 has not taken any decision over the
proposals submitted by the management for the promotions of the
petitioners from the post of Assistant Professors to Associate
Professors. The respondent - university has already granted
approvals to the promotion of the petitioners for considering the
petitioners for promotion. Respondent No. 3 - Joint Director has
to conduct objective scrutiny of the proposals considering our
analysis. We, therefore, pass following order.
ORDER
(i) The writ petitions are allowed partly.
(ii) The respondent No. 3 shall consider the proposals of the
petitioners for granting them promotion to the post of
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Associate Professor in accordance with Regulation of 2016,
on their own merits as early as possible and preferably
within a period of six (06) weeks from today.
(iii) The UGC Regulation of 2018 and G. R. dated 08.03.2019
issued by the Higher and Technical Education Department,
Government of Maharashtra, Mantralaya, Mumbai shall
not apply for deciding the petitioners' claim for promotion.
(iv) Rule is made absolute in above terms.
[ SHAILESH P. BRAHME, J. ] [ MANGESH S. PATIL, J. ]
bsb/Oct. 24
