High Court · 2024
Facts
(1) wp-3176-2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.3176 OF 2024Dr. Shankar S/o Bhagwan Ambhore,Age: 57 years, Occu. Service,R/o. Plot No.120, Pethe Nagar,Bhawsingpura, Chhatrapati Sambhajinagar...PetitionerVersus1.The State of Maharashtra,Through its Secretary,Higher and Technical EducationDepartment, Mumbai-32.2.Dr. Babasaheb Ambedkar MarathwadaUniversity, Chaatrapati Sambhajinagar,Through its Registrar,University Campus, Chhatrapati Sambhajinagar.3.Dr. Prashant Shamrao Amrutkar,Age: 53 years, Occu.: Service as Registrar,Dr. Babasaheb Ambedkar MarathwadaUniversity, Chaatrapati Sambhajinagar,Office at office of Registrar, Dr. Babasaheb Ambedkar Marathwada University, UniversityCampus, Chaatrapati Sambhajinagar.4.Vice Chancellor,Dr. Babasaheb Ambedkar MarathwadaUniversity, Chaatrapati Sambhajinagar,Office at office of Vice Chancellor, Dr. Babasaheb Ambedkar Marathwada University, UniversityCampus, Chaatrapati Sambhajinagar...Respondents....Mr. Sushant V. Dixit, Advocate for Petitioner.Mr. P. D. Patil, AGP for Respondent No.1.Mr. Sambhaji S. Tope, Advocate for Respondent Nos.2 to 4.…WITHCIVIL APPLICATION NO.6357 OF 2024INWRIT PETITION NO.3176 OF 20241.Dr. Babasaheb Ambedkar MarathwadaUniversity, Chaatrapati Sambhajinagar, (2) wp-3176-2024.odtThrough its Registrar,University Campus, Chhatrapati Sambhajinagar.2.Dr. Prashant Shamrao Amrutkar,Age: 50 years, Occu.: Service as Registrar,Dr. Babasaheb Ambedkar Marathwada University, University Campus, Chaatrapati Sambhajinagar.3.Vice Chancellor,Ambedkar Marathwada University, UniversityCampus, Chaatrapati Sambhajinagar.Versus1.Dr. Shankar S/o Bhagwan Ambhore,Age: 56 years, Occu. Service,R/o. Plot No.120, Pethe Nagar,Bhawsingpura, Chhatrapati Sambhajinagar.2.The State of Maharashtra,Through its Secretary,Higher and Technical EducationDepartment, Mumbai-32...Respondents....Mr. Sambhaji S. Tope, Advocate for Applicants.Mr. Sushant V. Dixit, Advocate for Respondent No.1.Mr. P. D. Patil, AGP for Respondent No.2.… CORAM : S. G. CHAPALGAONKAR, J. DATED : 31st JULY 2024.JUDGMENT:- 1.Rule. Rule made returnable forthwith. By the consent ofthe parties, matter is taken up for final hearing at the stage ofadmission.2.The petitioner impugns order dated 02.03.2024 issued byrespondent no.3 on the basis of order passed by respondent no.4,thereby declaring petitioner to be disqualified to continue asmember of Senate in pursuance of his election under Section 28(2)(r) of the Maharashtra Public Universities Act, 2016 (for short ‘theAct, 2016’). (3) wp-3176-2024.odt3.The petitioner was working as Professor and Head ofDepartment of Economics in Smt. Dankunwar MahilaMahavidyalaya, Jalna. The petitioner came to be elected as Senatemember of University from Teachers Constituency in terms ofSection 28(2)(r) of the Act, 2016. The petitioner came acrossadvertisement for filling up the post of Principal at Kohinoor Arts,Commerce, Science College, Khultabad. The petitioner respondedto advertisement and came to be appointed vide order dated27.04.2023 and joined his post w.e.f. 03.05.2023. His appointmentto the post of Principal has been approved by the University. Sinceappointment of the petitioner is on tenure post of Principal, he wasgiven lien as Professor with Smt. Dankunwar MahilaMahavidyalaya, Jalna. The petitioner was served with show causenotice dated 21.02.2024 by In-charge Registrar of the Universitycalling his explanation as to why action for cessation ofmembership of Senate shall not be initiated against him, since heceased to represent Constituency of teachers under Section 28(2)(r)of the Act, 2016. The petitioner challenged the said notice by filingWrit Petition No.2201/2024. By the time writ petition wascirculated, an office order declaring his cessation of hismembership of senate was served upon him. However, the samewas withdrawn on the same day i.e. on 26.02.2024. Later on, thepetitioner withdrew the writ petition. 4.The petitioner was served with fresh show cause notice dated28.02.2024. The petitioner submitted detailed reply, therebyraising challenge to validity of notice. However, respondent no.3served him impugned order dated 02.03.2024, which is preceded byorder of respondent no.4. According to the petitioner action takenagainst him is ultra vires, and contrary to principles of naturaljustice. The respondents/University Authorities supports
Legal Reasoning
(7) wp-3176-2024.odtaccepted assignment as Principal, his services are approved and heis presently continued to be Principal. Therefore, by statutoryimplication in terms of Section 63 whether petitioner ceases asmember of Senate would be question to be answered. 10.Plain reading of Section 63 depicts that where a person iselected as member of authority or body of University by virtue ofhis being eligible to be so elected as such a member under any ofthe categories of the officers, he shall cease to be such an officer ofthe University or member of such authority, as soon as he ceases tobelong such category and shall be deemed to have vacated his officeas such member. It cannot be disputed that the Constituency ofTeacher is specifically crafted to represent Teachers other thanPrincipals, whereas an independent category is crafted forrepresentation by the Principals. Therefore, as soon as thepetitioner has accepted the post of Principal, he ceased torepresent constituency/collegium of Teachers to which herepresents owing to his election under Section 28(2)(r) of the Act,2016.11.At this stage, Mr. Dixit, learned Advocate appearing for thepetitioner places his reliance on judgment of this Court in case ofDr. Geeta w/o. Mallikarjun Patil Vs. Dr. BabasahebAmbedkar Marathwada University, Aurangabad1. In thatcase it is held that appointment of the petitioner was not becauseshe was Teacher in a particular institution, hence her appointmentas teacher in university department would not vitiate her co-option. This Court held that petitioner continues to be Teacher andmere change in Appointing Authority would not invitedisqualification. Therefore, in present case petitioner cannot makeany capital of law espoused by this Court in the said judgment. In12015 (5) Mh.L.J. 248. (8) wp-3176-2024.odtcase of Dr. Ramkishan Mukundrao Chaudhary Vs. SwamiRamanand Teerth Marathwada University, Vishnupuri,Nanded2 the petitioner on his appointment as Head of Departmentin another institution, continued to represent category of “Head ofDepartment” from which he was elected. As such, the change ofinstitution was not considered as impediment in continuation of hismembership on University Authority. In case of Dr. VasantraoPawar Vs. Pune University3, the Supreme Court of Indiaconsidered the issue of cessation of membership on cessation torepresent particular management. However, in that case thepetitioner was elected as representative of management ofrecognized institution on the Senate of Pune University. Later on,he was nominated as representative of two other recognizedinstitutions. Therefore, appellant was replaced by another personas nominated representative of original management, butpetitioner continued to be the representative of management of twoother institutions, representing management Constituency againstwhich he was elected. In that scenario, the Supreme Courtobserved that merely because he ceased to be representative of themanagement, which he was representing at the time of election tothe Senate, but on his appointment as representative ofmanagement of another affiliated college or recognized institution,he would be entitled to continue as such for the term of five yearsfixed under the statute, so long as he continues to belong to theConstituency from which he was elected as member of Senate. 12.It is, therefore, clear from all the cases relied upon by thepetitioner, that Constituency to which those members wererepresenting remained same, although institutions were changed.However, in present case, the petitioner migrated from22015 (5) Mh.L.J. 510.3(1999) 3 SCC 528. (9) wp-3176-2024.odtConstituency of Teachers u/s 28(2)(r) to the Constituency ofPrincipals, consequently, ceased to be representative of Teacherscollegium for which he has been elected. In that view of thematter, by statutory implication of Section 63 of the Act, 2016, thepetitioner ceased to be a member of Senate.13.Mr. Dixit raises second contention that respondent no.3, whohas issued impugned communication dated 02.03.2024 has noauthority under law to declare cessation of membership or for thatpurpose even respondent no.4 is not empowered to declare vacancy.He submits that Section 140 of the Act, 2016 empowers Chancellorto decide such question on proposal of Vice Chancellor. However, inpresent case, no such proposal was made, therefore, impugnedcommunication is ultra vires. To appreciate aforesaid contentions,it is apposite to refer to Section 140 of the Act, 2016, which readsthus:“140.Questions regarding interpretation anddisputes regarding constitution of university authorityor body, etc.- If any question arises regarding theinterpretation of any provision of this Act, or of any Statutes,Ordinance or Regulation or Rule, or whether a person hasbeen duly elected or appointed or nominated or co-opted as amember or is entitled to be a member of any authority or bodyof the university, the matter may, be referred, on petition byany person or body directly affected or suo motu by the Vice-Chancellor to the Chancellor, who shall after taking suchadvice as he thinks necessary, decide the question, and hisdecision shall be final:Provided that, such reference shall be made by the Vice-Chancellor upon a requisition signed by not less than onefourth members of the senate.”14.Plain reading of aforesaid provision shows that if anyquestion arises regarding interpretation of any provision of the Actor whether a person has been duly elected, appointed or nominatedas a member or is entitled to be a member of any University or (10) wp-3176-2024.odtbody of the University, the matter may, be referred, on petition byany person or body directly affected or suo motu by Vice Chancellorto the Chancellor, who shall after taking such advice as he thinksnecessary, decide the question. The proviso prescribes that suchreference shall be made upon requisition of atleast one fourthmembers of Senate. It is, therefore, evident that this provisionwould apply where any dispute is made regarding election,appointment, nomination, co-option of the members of theauthority of University. However, as rightly pointed out by Mr.Tope, learned Advocate appearing for the University, the petitionerhas ceased to be member by operation of law in terms of Section 63of the Act, 2016, which do not require formal enquiry, so Section140 would not attract in the facts of this case. Consequently,contentions of Mr. Dixit on this point is also fallacious. 15.The third contention raised on behalf of the petitioner is thatthere is gross violation of principles of natural justice. Theimpugned order sans consideration of reply filed by the petitionerand consequential reasons. It is to be noted here that Section 63 ofthe Act, 2016 has special feature and it uses terminology of deemedcessation of membership. It does not require any formal enquiry orshow cause notice to be given. There is absolutely no dispute asregards to the factual matrix of the matter. Three foundationalfacts are admitted. First, the petitioner was elected under Section28(2)(r) of the Act, 2016 i.e. from Teachers Constituency torepresent on Senate. During his term, he has been appointed asPrincipal and ceased to be Teacher and continued as such till thisdate and petitioner is no more representing Teacher Constituency.In this background, the petitioner was served upon show causenotice. Although petitioner sought to make out case of malafides,there is no scope to accept such contentions in light of admitted factand statutory provisions governing issue. The cessation of
Arguments
(4) wp-3176-2024.odtimpugned order contending that cessation of membership, ascontemplated under Section 63 of the Act, 2016 is automatic. Assoon as petitioner ceases to represent collegium of Teachers, he isdeemed to have vacated his office of member of theAuthority/Senate.5.Mr. Dixit, learned Advocate appearing for the petitionersubmits that the impugned order is in the nature of communicationby respondent no.3 as regards to order dated 02.03.2024 passed byrespondent no.4. However, neither respondent no.3 nor respondentno.4 are authorized under law to disqualify member of anyAuthority/Senate. Consequently, impugned order is ultra vires.The impugned order is passed without referring to contents of replyof petitioner to show cause notice. As such, it is in gross violationof principles of natural justice. The petitioner continues to beteacher, even after his appointment as Principal. Hence, cessationof membership as contemplated under Section 63 of the Act, 2016shall not attract. He would invite attention of this Court to Section140 of the Act, 2016 to contend that issue whether petitioner hasceased to be member of Senate ought to have been referred toChancellor, who is final Authority to decide such question. Mr.Dixit would invite attention of this Court to the definition of‘Teacher’ under Section 2(61) and definition of ‘Principal’ underSection 2(44) to contend that appointment of petitioner as Principalshall not displace him to be referred as Teacher. He would,therefore, submit that there was no cause of action to invokeprovisions of Section 63 of the Act, 2016 and serve show causenotice and pass consequential order declaring cessation ofmembership on Senate of the petitioner.6.Per contra, Mr. Tope, learned Advocate appearing for therespondents submits that the petitioner has been elected on Senate (5) wp-3176-2024.odtunder Section 28(2)(r) of the Act, 2016 i.e. Teachers Constituencyother than Principals. He would further point out that Principalsof the affiliated colleges are given representation at senate underSection 28(2)(o) of the Act, 2016. The petitioner transgressedhimself from ‘Teacher’ to ‘Principal’ and ceased to represent hisConstituency. Consequently, Section 63 of the Act, 2016 operatesand petitioner ceases to be member of Senate automatically.Admittedly, petitioner has been appointed as Principal. Hisservices are approved as such. His original employer hasdiscontinued lien on the post of Professor. Consequently Registrarof University has communicated order passed by Vice Chancellorregarding declaration of vacancy consequent to cessation ofmembership of the petitioner. Therefore, he urges that there is nosubstance in petition and same is liable to be dismissed.7.The submissions advanced poses three questions forconsideration before this Court. First question is whether onappointment of the petitioner as Principal, he ceases to representTeachers Constituency under Section 28(2)(r) of the Act, 2016. It isapposite to refer the relevant portion of Section 28 for betterunderstanding of the controversy. Section 28 reads thus:“28.Senate.- (2) The Senate shall consist of the following members, namely:-(a)……..(b)……..(c)……..(d)……..(e)……..(f)……..(g)……..(h)……..(i)……..(j)……..(k)……..(l)……..(m)……..(n)…….. (6) wp-3176-2024.odt(o)ten Principals of affiliated, conducted, autonomouscolleges which are accredited by National Assessment andAccreditation Council (NAAC) or National Board ofAccreditation, (NBA), as the case may be, to be elected bythe collegium of principals from amongst themselves;of whom one each shall be a person belonging to ScheduledCastes, Scheduled Tribes, De-notified Tribes (VimuktaJatis) or Nomadic Tribes, Other Backward Classes, and oneshall be a woman;(p)……..(q)……..(r)ten teachers other than principals and directors ofrecognised institutions to be elected by the collegium ofteachers from amongst themselves of whom one eachshall be a person belonging to Scheduled Castes, ScheduledTribes, De- notified Tribes (Vimukta Jatis) or NomadicTribes, Other Backward Classes, and one shall be awoman;”8.Section 63 of the Act, 2016 would also be relevant andnecessary to be quoted here for ready reference, which reads thus:“63.Cessation of membership.- Notwithstandinganything contained in this Act or the Statutes madethereunder, where a person, elected, nominated, appointed orco-opted, as the case may be, as an officer of university or amember of any of the authority or bodies of the university byvirtue of his being eligible to be so elected, nominated,appointed or co-opted as such an officer or a member underany of the categories of officers or members specified by orunder the relevant provisions of this Act in relation to suchoffice, authority or body, he shall cease to be such anofficer of the university or a member of such anauthority or a body as soon as he ceases to belong tosuch category and shall be deemed to have vacated hisoffice as such officer or member.”9.Conjoint reading of aforesaid provisions clearly shows thatfor the purpose of election under Section 28(2)(r) of the Act, 2016the Teachers other than Principals and Directors of recongnisedinstitutions are eligible to be elected. At the time of petitioner’selection, he was Teacher other than Principal. However,admittedly after his election by collegium of Teachers on Senate, he
Decision
(11) wp-3176-2024.odtmembership is automatic, once member of authority ceases torepresent the Constituency from which he has been elected.16.The last limb of submissions advanced by Mr. Dixit is thatthe definition of Teacher includes Principal. Therefore, theappointment of the petitioner on the post of Principal would notcease him being representative of Teacher. Such contentions donot hold water in light of scheme of the Act, 2016, which providesrepresentation to various categories/sections of stakeholders of theUniversity like employees, teachers, directors, educationalist etc. tobe a part of Senate, which is the Apex Body to manage financialestimates and budgetary appropriations of the University. Furtheropening wording of Section 28(2)(r) of the Act, 2016 excludesPrincipal from the category of Teachers, who are supposed to berepresented in the Senate. The collegium of Principals is givenindependent representation under Section 28(2)(o) of the Act, 2016.The petitioner ceased to be representative of Teachers andmigrated to collegium of Principals. Consequently, there is nomerit in the Writ Petition. Writ Petition stands dismissed.17.In view of dismissal of Writ Petition, the present CivilApplication stands disposed of.18.Rule is discharged. (S. G. CHAPALGAONKAR) JUDGE Devendra/July-2024