High Court
Legal Reasoning
144-wp-3142-2000 judg.odt(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.3142 OF 2000Smita d/o Rajendra Nagori,Aged 28 years, Occ. Service,Lecturer in English,Maharashtra Udaygiri MahavidyalayaUdgir, Taluka Udgir, Dist. Latur..PetitionerVersus1.Maharashtra Education Society,Udgir, Taluka Udgir,District Latur.2.The Principal,Maharashtra Udaygiri MahavidyalayaUdgir, Taluka Udgir, Dist. Latur.3.Swami Ramanand Teerth MarathwadaUniversity, Nanded,Through its Registrar.4.The State of MaharashtraThrough Joint Director of HigherEducation, Nanded Region, TarasingMarket, Nanded Dist. Nanded.5.Dr. P.G. JadhavRegistrar, Swami Ramanand TeerthUniversity, Vishnupuri, Nanded,District Nanded...Respondents…Mr. V.D. Hon, Senior Counsel i/b Mr. A.D. Sonkawade & Mr. A.V. Hon,Advocate for the Petitioner.Mr. A.S. Shinde, AGP for the State.Mr. H.B. Nandagavale h/f Mr. V.G. Sakolkar, Advocate for RespondentNos.1 & 2.Mr. S.R. Bagul, Advocate for Respondent No.5.... CORAM : S.G. MEHARE, J. DATED : APRIL 15, 2024
Legal Reasoning
144-wp-3142-2000 judg.odt(2)ORAL JUDGMENT :-1.Heard learned counsel for the petitioner and learnedcounsel for the respective contesting respondents.2.This case illustrates how the litigants take advantage ofthe practice of mentioning the matters for hearing before the Courtand overcrowding of the litigations, particularly after securing interimprotection. Long back, 24 years ago, the impugned order of theUniversity and College Tribunal, Aurangabad, was impugned. Afterfiling the writ petition, the interim relief was obtained on 31.07.2000.The interim protection was granted in terms of prayer clauses (D) and(E), which read thus:“(D)Pending hearing and final disposal of the present writpetition grant stay to the termination order dated 1.6.2000passed by the respondent no.2 and the order dated 29.5.2000only to the extent of direction to readvertise the post and to fill inthe vacant post; and for that purpose issue necessary orders.(E)Pending hearing and final disposal of the present writpetition respondents be directed to reinstate the petitioner inservice with full backwages, continuity in service and continue topay her salary regularly; and other consequential benefits and forthat purpose issue necessary orders;”3.After the order of interim relief dated 31.07.2000, thepetitioner continued in service and was getting salary from theGovernment without approval. How and at whose instance the salarywas paid is another question. However, the fact remains that after 144-wp-3142-2000 judg.odt(3)around 24 years, the matter was listed. However, after securing theinterim order, leave was obtained to add the State Government andRegistrar of the University as a party to the petition. This happened in2001. Thereafter, they joined as a party. They were served. Learnedcounsel for them appeared, and the matter was left unattended. Forthe first time, the circulation was sought on 31.10.2014. However, theCourt (Coram: Ravindra V. Ghuge, J.) ordered “Not before me” as hehad filed the affidavit in reply for contesting respondent no.3, thematter was again kept pending. Then the circulation was soughtdirectly in 2020. Then, the matter was listed on 20.03.2020. Thenagain, the matter was listed on 31.10.2023. Nobody has shown thediligence to resolve the issue for a long period. The petition is nowlisted for hearing as the petitioner is on the verge of retirement inAugust 2024. Such a convenience has been awarded to the petitioner,and now it has been submitted that the petitioner is on the verge ofretirement. Therefore, the matter may be heard on merit. It isastonishing, that none of the respondents circulated the matter forfinal arguments or decision on merit against the interim relief securedby the petitioner.4.The petitioner had faced the interview in response to theadvertisement. The selection committee of six members wasconstituted; one special expert differed, and five favoured thepetitioner. Respondent no.1 issued the appointment order as 144-wp-3142-2000 judg.odt(4)probationary. Thereafter, a proposal for approval was sent torespondent no.3 by letter dated 25/29th May 2000 informingrespondent no.1 that the approval to the appointment of thepetitioner was granted only for one academic year from 1999 to 2000.Respondent No.1 was directed to issue a fresh advertisement and getthe appointment through the selection committee. In reference to thesaid letter, respondent No.1 terminated the services of the petitioner.Against that termination, she had preferred the appeal before theUniversity and College Tribunal, Aurangabad. The learned Tribunaldismissed the appeal. In the impugned order, the Presiding Officer hasrecorded the finding that, in my opinion, the question for myconsideration would be whether the Management has acted legally orotherwise while terminating the services of the employee. Thequestion of correctness or otherwise of the period of approval grantedby the Vice-Chancellor to the appointment of Lecturer would not bewithin my jurisdiction while dealing with the matter under Section 59of the Maharashtra Universities Act. In this case, the Management wasconstrained to terminate the services of the appellant. In view of thecircumstances mentioned above, the act of Management cannot besaid to be contrary to the provisions. With the above observations, theappeal was dismissed. 5.Learned counsel for the petitioner would submit that theorder refusing the approval is non-est for no reason. The petitioner 144-wp-3142-2000 judg.odt(5)has faced the election process. She was never intimated about thedissenting opinion of the expert. On the contrary, the appointmentorder was issued to her. Since the appeal was dismissed erroneously,her services were continued as per the interim relief order of thisCourt. He would submit that the learned Tribunal incorrectly heldthat it has no jurisdiction to deal with the correctness or otherwise ofthe period of approval granted by the Vice-Chancellor to theappointment of Lecturer as it is out of its jurisdiction under Section 59of the Maharashtra Universities Act. He would submit that theexplanation of respondent no.3 by way of reply in appeal and affidavitin reply before the writ petitions are afterthought. Once theappointment is for two years, the University/respondent No.3 wasbound to approve. He would submit that the petitioner is not at fault.Relying on the case of Arti d/o Vithalrao Warkhede Vs. EducationOfficer (Secondary), Zilla Parishad, Wardha and Others, 2011 (1)Mh.L.J. 638, he has vehemently argued that the law is well settledthat the Tribunal has jurisdiction to decide whether the refusal ofapproval is right or wrong, as an ancillary or incidental question. Healso relied on the case of Ramchandra Uttam Dhavale Vs. PadmaShamrao Patil and Others, 2017 SCC Online Bom 9285. He prayed toconsider this petition under Article 226 of the Constitution of Indiaand requested the Court to confirm the services of the petitioner, whorendered services for around 24 years with an unblemished record. 144-wp-3142-2000 judg.odt(6)He also vehemently argued that the order granting approval only forone year and direction to re-advertise are without reason andcontrary to the law. Therefore, it is liable to be quashed and set aside.6.Per contra, learned counsel for respondent no.5 hasvehemently argued that one of the expert members of the selectioncommittee dissented and put his dissent note against the petitioner.Therefore, considering the interest of students, the universitybonafide granted the approval only for one year. Though the letterswere not specific, the intention of respondent no.3 was clear that theappointment was not legal and proper. The dissenting opinion of theexpert ought to have been considered by the Management. Withoutseeking any opinion from the controlling authority, the Managementissued the order of appointment. These facts were disclosed long backin an appeal of 2000 before the learned Tribunal. The petition wasnever amended to seek appropriate relief. The impugned judgmentand order of the learned Tribunal is not on merit. The substantialquestion on the legality and validity of the appointment of thepetitioner was not framed. Unless the legality of the appointment isdetermined, the learned Tribunal could not go ahead. The questionof approval is not within his jurisdiction dealing with the matterunder Section 59 of the Maharashtra Universities Act, 1994. Hesubmits that since the impugned order is not passed on merit, the 144-wp-3142-2000 judg.odt(7)only option with the Court is to remit the matter for a decision onmerit.7.Learned counsel for respondent no.1 is supporting thepetitioner as he is the appointing authority.8.Learned senior counsel for the petitioner submits thatSection 60 of the Maharashtra Universities Act, 1994, provides for thegeneral powers and procedure of the Tribunal. He would submit thatthe learned Tribunal also has the power to decide the procedure to befollowed by the learned Tribunal for the disposal of its business,including the place or places at which it is located and the hoursduring which it shall hold its sittings. Therefore, under the powersunder Section 60, the Presiding Officer has correctly followed theprocedure; however, he passed an illegal order.9.The State has submitted that they were not arraigned asa party before the learned Tribunal. Hence, they were unable to makea statement about the appointment. The learned Tribunal ought tohave framed the first issue of the legality and validity of theappointment of the petitioner. The learned Tribunal delivered thejudgment without issuing a root question.10.Section 60 of the Maharashtra Universities Act, asdiscussed above, confers the power of the learned Tribunal to conductappeals and procedures thereof. Sub-section (1) of Section 60provides that for the purposes of admission, hearing and disposal of 144-wp-3142-2000 judg.odt(8)appeals, the Tribunal shall have the same power as are vested in anappellate court under the Code of Civil Procedure, 1908. Theappellate jurisdiction of the Civil Court under the Code of CivilProcedure provides that while dealing with the judgment in appeal,the Court shall frame the points for determination and record thefinding on each point. The learned Tribunal did not follow thisprocedure. Considering the issues involved in the case andparticularly the reply of respondent no.3, the question really revolvedaround the legality and validity of the appointment of the petitioner.The facts were disclosed by way of a reply as to why the approval wasgranted for one year only. However, the petitioner did not takeappropriate orders. Be that as it may, it was the duty of the learnedTribunal to frame the issue considering the pleadings of both sides.This Court is of the view that considering the pleadings of both sides,the first question the learned Tribunal ought to have framed wasabout the legality and validity of the appointment of the petitioner,and then he ought to have dealt with its power touching the issue oflegality and validity of the approval. However, it was not done. Hence,the following order : ORDER(i)The petition is partly allowed.(ii)The impugned judgment and order of the Presiding Officer,University and College Tribunal, Aurangabad in Appeal No.SRTMU- 144-wp-3142-2000 judg.odt(9)7/2000 dated 06.07.2000 is quashed and set aside and remitted tothe learned Tribunal for decision on merit by following the procedurestrictly under Section 60(1) of the Maharashtra Universities Actwithin two months from the date of appearance of the parties and toframe the points for determination specifically about the legality andvalidity of the appointment of the petitioner.(iii)Both parties are directed to appear before the learned Tribunalon 29.04.2024.(iv)No order as to costs.(v)Till the parties appear before the learned Tribunal, there shallbe interim protection to the termination order.(vi)Rule is made partly absolute in above terms. (S.G. MEHARE, J.)Mujaheed//