High Court
Legal Reasoning
8 wp 5146-2020.odtregulations. There is no dispute that the advertisement to fill up thepost of Principal was issued after taking permission from the JointDirector. The Deputy Director had granted approval to theadvertisement pursuant to letter dated 12.09.2011 by the Director,Colleges and University Development Board addressed to the petitionerNo. 1. By the said letter university granted permission to fill up thepost by giving an advertisement. A permission was sought from theDeputy Director. The advertisement came to be approved. TheCondition No. 2 given in the advertisement reads as under :“(2)Pay Scales and other eligibility conditions are as perrules & norms laid down by Dr. Babasaheb AmbedkarMarathwada University, Aurangabad/State Govt. ofMaharashtra/UGC rules.”10.The Deputy Director thus granted permission. Theadvertisement issued pursuant to the approval by the Joint Directorclearly shows condition No. 2. The respondent No. 4 was appointedpursuant to the selection process undertaken, and thereafter, he wasgiven an appointment letter. In the appointment letter, it is clearlystated that the respondent No. 4 will be paid the salary as perUGC/university/Government rules and would be subject to approval ofthe Vice Chancellor of the university. The Director of Board of Collegeand University Development (for short “BCUD”) by letter dated 8 of 15 9 wp 5146-2020.odt25.01.2012 granted approval for five years as tenure post. Therespondent No. 4 by communication dated 23.02.2012 requested themanagement that, his post shall not be treated as tenure post. Thisletter was addressed to the Director of BCUD. This thing clearly showsthat the appointment was for five years in view of rule 5.1.6 of the UGCregulations. Even the respondent No. 4 was aware of this position andtherefore, he had sought correction. As a matter of fact, till today thereis no such correction and there is no pursuation by the respondentNo. 4. So far as applicability of rule 5.1.6, there is no dispute. Thequestion as to whether it was ultravires on the date of the appointmentwill be discussed while discussing the judgment of the Division Benchof this Court. 11.The second question, as to whether the respondent No. 4’sservice was rightly put to an end on 13.01.2017. As is clear that theappointment was only for five years, it naturally came to an end on13.01.2017. Even the respondent No. 4 sent resignation on that day.This clearly shows that he had accepted the said position. Thisquestion therefore also goes against the respondent No. 4.12.The question thereafter is about the lien kept by the respondentNo. 4 in the earlier college. The petitioners had shown that the 9 of 15 10 wp 5146-2020.odtrespondent No. 4 had kept a lien on the post where he was working i.e.Mahila College, Shahada where he was appointed as permanentPrincipal prior to appointment to the petitioner No. 2 college. However,this fact is not disclosed by the respondent No. 4 before the learnedCollege Tribunal. In view of this fact, this material fact is suppressed bythe respondent No. 4 before the learned College Tribunal. Whileconsidering this petition, this is material fact that needs to beconsidered. The petitioners have brought on record communicationdated 09.01.2012 by the respondent No. 4 to the President of SonamaiShikshan Prasarak Mandal, Vidyawadi, Deopur, Dhule. In the saidletter the respondent No. 4 has specifically requested the saidinstitution to grant him a lien for period of five years. This letter ofrequest was accepted by the President of earlier institution. This is onemore fact which clearly indicates that the respondent No. 4 had joinedthe post only for five years. There is no denial of this fact. If therespondent No. 4 was to join earlier college then, naturally he cannotact as Principal in two different colleges. This Court finds substance inthe submissions of learned senior advocate that by suppressing thismaterial fact before the learned College Tribunal the respondent No. 4has played a fraud upon that authority and therefore, it would vitiateeverything. 10 of 15 11 wp 5146-2020.odt13.This Court would consider the judgments relied upon by theparties. So far as regulations of UGC, the petitioners have relied upontwo judgments. In the case of Sudhir s/o Sharadrao Hunge andanother (supra), it is held that the UGC has introduced a qualificationof NET/SLET for appointment as lecturer. The same was notified ingazette dated 11.07.2009. It is held that, the said notification will haveprospective operation. The appointments made on the basis ofadvertisement published prior to that date would not be affected. It isfurther considered that, the advertisements were duly approved andsanctioned by the university. Thus, what is material is the regulationswhich are in force on the date of the advertisement. In the presentcase, it is sufficiently shown that when the advertisement was issuedrule 5.1.6 was in force and naturally the appointment would begoverned by the said regulation.14.The judgment in the case of P. Suseela and Ors. (supra), is on thesimilar lines.15.So far as appointment on the tenure post, the petitioners haverelied upon the judgment in the case of U. P. State Textile CorporationLtd. (supra). In the said case, it is held that, when the appointment isfor a fixed period, the reinstatement cannot be granted beyond term forwhich such employee was appointed and in that view the order of 11 of 15 12 wp 5146-2020.odtreinstatement was modified only till the period for which he wasappointed.16.In the case of Union of India and Ors. (supra), the Hon’ble ApexCourt held that the officer once has accepted the terms of appointmentcannot claim any continuity in post. This judgment is squarelyapplicable to the present case.17.So far as suppression of fact is concerned, the petitioners haverelied upon the judgment in the case of Bhaskar Laxman Jadhav andothers (supra). In that case, since the petitioners had not disclosedcertain order it is taken amounting to suppression of material facts . Inview of such suppression the Hon’ble Apex Court did not entertain theSLP. It is further held that, mere passing reference to the material factdoes not amount to disclosure of the said fact. 18.Thus, this Court finds that, all the judgments are squarelyapplicable to the present case. 19.So far as the judgment in the case of Professor (Dr.) Sreejith P.S.Vs. Dr. Rajasree M. S. & Ors. in Civil Appeal Nos. 7634-7635/2022 isconcerned, the question was as to whether while making theappointment of a person to the post of Vice Chancellor be as per 12 of 15 13 wp 5146-2020.odtprevailing UGC regulations or in effect of the provisions of theUniversity Act, 2015 which was a State Act. In that case the stand ofthe Government was that, though the university regulations werespecifically adopted, however, the amendments done thereafter werenot specifically adopted. The Hon’ble Apex Court held that, merelybecause the subsequent amendment is not specifically adopted oraccepted cannot be a ground to say that said amendment to theregulation is not binding on the State’s Universities. Consideringoverall case, it is held that it is the UGC regulations which will prevail. 20.The judgment of Division Bench of this Court at Nagpur in thecase of Dr. Suresh s/o Bhagwanji Rewatkar (supra) is relied upon bythe respondent No. 4. In the said petition, a question was about thevires of clause 5.1.6(d) of the UGC regulations which is relied upon bythe petitioners in this case. In that case, the Court has held that, therewas no restriction of tenure of appointment to the post of Principal to acollege prior to introduction of clause 5.1.6(d) and it was introducedby way of an amendment in the year 2010. The question was whetherthe said clause is followed which had the effect of convertingpermanent post of Principal into a tenure post. This Court relying uponvarious judgments held that, clause 5.1.6(d) as amended in the year2016 is arbitrary and unconstitutional. By holding such, it is struck 13 of 15 14 wp 5146-2020.odtdown as violative of Article 14 of the Constitution of India. As rightlypointed out by the learned senior advocate that, even in the saidjudgment the benefit of the said judgment is given only to thosepersons who were continuing as Principals on the date of filingpetition. It is further made clear that, since the tenure appointments ofother petitioners were already over before filing of those petitions theywould not be entitled to benefit of the said judgment. It is also pointedout that, this judgment came in the year 2020 whereas, in the presentcase the respondent No. 4 was already terminated and thus, he cannottake any benefit of this judgment.21.Considering all above, this Court finds that, the petitioners havemade out a case to allow the petition. Even considering the judgmentdelivered by this Court at Nagpur, no benefit can be given torespondent No. 4. 22.This Court finds that, the learned Presiding Officer, CollegeTribunal has failed to consider all above facts in proper perspective. Itis further seen that, the fact of keeping the lien over the earlier postwas suppressed by the respondent No. 4. Had the said fact beenpointed out to the learned Presiding Officer, College Tribunal, it wouldhave been considered properly. The respondent No. 4 would not havesucceeded even before the learned College Tribunal. 14 of 15
Arguments
1 wp 5146-2020.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD WRIT PETITION NO. 5146 OF 20201.Yogeshwari Shikshan Sanstha, Ambejogai,Tq. Ambejogai, Dist. Beed.Through its Chairman/Secretary2.Swami Ramanand Tirth Mahavidyalay,Ambejogai, Tq. Ambejogai, Dist. Beed,Through its Principal.. PetitionersVersus1.Dr. Babasaheb Ambedkar MarathwadaUniversity, AurangabadThrough its Registrar2.The Pro-Vice Chancellor,Dr. Babasaheb Ambedkar MarathwadaUniversity, Aurangabad3.The Joint Director,Higher Education, Aurangabad4.Dilip Chhagan Chavan,Age : 58 years, Occu. : NilR/o. Ambejogai, Tq. Ambejogai,District : Beed... RespondentsMr. R. N. Dhorde, Senior Advocate i/by Mr. Rajendra L. Kute, Advocate for the Petitioners.Mr. K. M. Suryawanshi, Advocate for Respondent No. 1.Mr. K. S. Patil, AGP for Respondent No. 3. Mr. B. L. Sagar Killarikar, Advocate h/f Mr. Babasaheb A. Dhengle, Advocate for Respondent No. 4. CORAM : KISHORE C. SANT, J.Date on which reserved for order :12th December, 2024.Date on which order pronounced :31st January, 2025. 1 of 15 2 wp 5146-2020.odtORDER :- .The petitioners are education institution and a college whichhave come to this Court challenging the judgment and order passed bythe learned Presiding Officer, College Tribunal, Aurangabad in anAppeal No. BAMU-01/2017. The respondent No. 4 had approached thelearned College Tribunal challenging his termination order passed bythe petitioners. The learned Presiding Officer partly allowed the saidappeal directing petitioners to reinstate respondent No. 4 as Principalin Petitioner No. 2 college. The respondent Nos. 1 and 2 are theUniversity and Pro-Vice Chancellor. The respondent No. 3 is the JointDirector, Higher Education, Aurangabad.2.Two facts necessary for the decision are that, the petitioner i.e.college is affiliated when the Principal was appointed to respondentNo. 1 University which was governed by the rules of the UniversityGrants Commission (for short “UGC”). The principal was appointed fora term of five years as per rule 5.1.6 of the UGC rules. The said rulesare adopted by the Government of Maharashtra vide Governmentdecision dated 15.02.2011. In view of these rules, the Principal can beappointed only for a term of five years. Such term can be extendedonly for another five years. Thus, a Principal can be only for a periodof maximum ten years. The respondent No. 4 was already in service 2 of 15 3 wp 5146-2020.odtwith one college namely Mahila College, Shahada, District Nandurbar.He accepted the appointment by keeping lien for a period of five yearsin the earlier college which is permissible under the policy of theGovernment vide Government decision dated 15.03.2011. After theappointment, the university granted approval to the post of respondentNo. 4 for a period of five years. The respondent No. 4 was thusappointed on 02.01.2012. The appointment order specifically mentionsthat, the appointment will be as per UGC/University/Government rules.On 25.01.2012, the university granted approval to the appointment ofrespondent No. 4/Principal for a period of five years. After theappointment, the respondent No. 4 accepted the appointment. Hemade representation that, his appointment shall not be treated as atenure post. On 10.01.2017, the management passed a resolutionstating that the appointment of the respondent No. 4 was for five yearsand the said period is coming to an end and therefore, he should berelieved. On 13.01.2017, the in-charge Principal took charge of thepost of respondent No. 4. The respondent No. 4 also tenderedresignation on 13.01.2017 itself. However, within four days afterresignation the respondent No. 4 requested the management forcancellation of resignation without retrospective effect. He issuedsimilar letter to the university as well on 25.01.2017. Though a requestwas received, there was no question of continuing the respondent No. 4 3 of 15 4 wp 5146-2020.odtin the college. 3.After this, the respondent No. 4 approached the College Tribunalwith a grievance that, though he had tendered resignation, that wasunder wrong impression. After completing probationary period hisservice was deemed to be confirmed. The approval was granted by theauthorities. The learned Presiding Officer, College Tribunal acceptedthe case of respondent No. 4 and held that his appointment was not forfive years but was permanent. It is consequently held that, the order oftermination is illegal and granted relief of reinstatement with back-wages. The petitioners are thus before this Court.4.The learned senior advocate Mr. Dhorde for the petitionersvehemently argued that, the appointment of the respondent No. 4 wasgoverned by UGC rules. The pay scale and service conditions were alsogoverned by UGC rules. The advertisement which was publishedinviting applications clearly mentions that, the appointment is for aperiod of five years. The respondent No. 4 accepted the appointmentfor five years. Even the university granted approval only for a period offive years. The respondent No. 4 was well aware of this position andtherefore, he had preferred a representation dated 13.01.2012. Thepetitioner did not disclose before the learned Tribunal that he had kepta lien in earlier college over the post of Principal. This fact is 4 of 15 5 wp 5146-2020.odtsuppressed from the Tribunal. He thus submits that, the respondentNo. 4 has committed fraud and in view of this fraud every action isvitiated. The learned College Tribunal failed to appreciate that, it is theUGC which governs the service conditions. He submits that thecommunication between the parties would clearly show that, both theparties were ad idem that the appointment is for a fixed term. Thelearned senior advocate relies upon the following judgments :(i)Sudhir s/o Sharadrao Hunge and another Vs. Stateof Maharashtra and others reported in 2010 (4) Mh.L.J.572.(ii)Bhaskar Laxman Jadhav and others Vs. KaramveerKakasaheb Wagh Education Society and others reported in(2013) 11 SCC 531.(iii)P. Suseela and Ors. etc. Vs. University GrantsCommission and Ors. etc. reported in AIR 2015 SC 1976.(iv)Union of India and Ors. Vs. Brahma Dutt Tripathireported in AIR 2006 SC 3244.(v)U. P. State Textile Corporation Ltd. Vs. Suresh Kumarreported in AIR 2011 SC 3296.5.The learned advocate Mr. Sagar Killarikar for respondent No. 4forcefully argued that, the UGC regulation cannot illegally curtail theterm of appointment. The judgments relied upon by the petitioners arenot applicable. He submits that, the judgments relied upon by the 5 of 15 6 wp 5146-2020.odtpetitioners are not applicable to the case for the above reason. Therespondent No. 4 was appointed as Principal in the year 2008 itself andthus, the subsequent UGC rules and the policy of the Government bydecision in 2011 would not be applicable. When he applied for thepost of Principal, he had sent an application through proper channel.The petitioners were thus aware that respondent No. 4 was regularlyappointed as Principal in earlier college. There is no dispute about thisposition. He submits that, in the present matter the main question isabout applicability of rule 5.1.6. The learned Presiding Officer hasrightly considered all these aspects and has allowed the appeal. Therepresentation of 13.01.2012 by respondent No. 4 remainedunanswered. It will have to be thus taken that the petitioners hadaccepted the case of respondent No. 4 that the post was not a tenurepost, but was a regular post. Rule 5.1.6(d) is held ultravires by theDivision Bench of this Court. The present case is thus governed byclause (3) of the Government decision dated 15.03.2011. He submitsthat, the letter of resignation was not given voluntarily. There arevarious mix questions raised in the present petition which were notbefore the learned College Tribunal. The main thrust of the argumentis that, the post was not a tenure post and the appointment was not foronly fixed period. 6 of 15 7 wp 5146-2020.odt6.In rejoinder, the learned senior advocate submits that, in fact, theterm of respondent No. 4 came to an end on 13.01.2017. Theresignation letter is also issued on the same date whereas, the DivisionBench judgment is passed subsequently. Thus, as the legal positionstood on the date of resignation cannot be subjected to the judgment inthe case which came to be subsequently filed. When the term wasexpired, there was no extension granted and there was also noprotection granted and for this reason also the judgment of the DivisionBench would not be applicable. 7.The learned A.G.P. prays that appropriate order be passed.8.The questions mainly, in view of the above discussion, fall forconsideration (i) whether the post of respondent No. 4 was a tenurepost for five years in view of clause 5.1.6 of the UGC regulation, (ii)whether the respondent No. 4’s service was rightly put to an end on13.01.2017. In view of the above discussion, third question that wouldarose, as to what about the effect of keeping lien over the post by therespondent No. 4 in earlier college. The last question that, as towhether the learned College Tribunal was right in allowing the appealof the respondent No. 4. 9.The very first question of applicability of rule 5.1.6 of UGC 7 of 15
Decision
15 wp 5146-2020.odt23.The impugned judgment and order deserves to be quashed andset aside. In view of the same, the writ petition stands allowed in termsof prayer clause (B).24.The writ petition stands disposed off. 25.Pending civil application, if any, also stands disposed off. ( KISHORE C. SANT, J. ) P.S.B. 15 of 15