Ganesh Digamber Jambhrunkar and others v. The State of Maharashtra and others
Case Details
1 wp_4546.16.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4546 OF 2016 WITH CIVIL APPLICATION NO. 6661 OF 2017 AND CIVIL APPLICATION NO. 3167 OF 2021 Ganesh Digamber Jambhrunkar and others .. Petitioners Versus The State of Maharashtra and others .. Respondents Ms. P. S. Talekar, Advocate h/f Talekar and Associates, Advocate for the Petitioners. Shri L. M. Acharya, Special Counsel for the State/Respondent Nos. 1 and 2. Shri Milind M. Joshi, Advocate for the Respondent No. 3. Shri Chaitanya V. Dharurkar, Advocate for the Respondent No. 4. WITH CIVIL APPLICATION NO. 8691 OF 2017 IN WRIT PETITION NO. 4546 OF 2016 The State of Maharashtra and another .. Applicants Versus Ganesh Digamber Jambhrunkar and others .. Petitioners Shri L. M. Acharya, Special Counsel for the State/Applicants. Ms. P. S. Talekar, Advocate h/f Talekar and Associates, Advocate for the Respondent Nos. 1 to 17. Shri Chaitanya V. Dharurkar, Advocate for the Respondent No. 19. Shri Milind M. Joshi, Advocate for the Respondent No. 21. WITH WRIT PETITION NO. 8024 OF 2017 2 wp_4546.16.odt Rahul Sandu Ankushe and others .. Petitioners Versus The State of Maharashtra and others .. Respondents Ms. P. S. Talekar, Advocate h/f Talekar and Associates, Advocate for the Petitioners. Shri L. M. Acharya, Special Counsel for the State/Respondent Nos. 1, 2, 5 and 6. Shri Chaitanya V. Dharurkar, Advocate for the Respondent No. 3. Shri Milind M. Joshi, Advocate for the Respondent No. 4. WITH WRIT PETITION NO. 8027 OF 2017 Vaibhav Bapurao Aundhkar .. Petitioner Versus The State of Maharashtra and others .. Respondents Ms. P. S. Talekar, Advocate h/f Talekar and Associates, Advocate for the Petitioner. Shri L. M. Acharya, Special Counsel for the State/Respondent Nos. 1, 2, 5 and 6. Shri Chaitanya V. Dharurkar, Advocate for the Respondent No. 3. Shri Milind M. Joshi, Advocate for the Respondent No. 4. CORAM : MANGESH S. PATIL AND SANDEEP V. MARNE, JJ. CLOSED FOR JUDGMENT ON : JUDGMENT PRONOUNCED ON : 16.09.2022 20.09.2022 JUDGMENT (Per Sandeep V. Marne, J.) :- THE CHALLENGE . By present petitions, petitioners seek regularization of 3 wp_4546.16.odt their services and all benefits of permanency including deemed date with effect from 01 April 2016. The petitioners also seek directions for payment in the pay scales prescribed by the University Grant Commission (for short “U.G.C.”). They are working as lecturers in various departments/subjects in Shri Guru Govind Singhji Institution of Engineering and Technology, Nanded and had rendered about 3/5 years of service on the date of filing of the petitions. PLEADINGS OF THE PARTIES 2. Facts of the case as pleaded in the Petition are that the Government of India launched a programme known as Sub Sector Development Programme for Technical Education/Technical Education Policy Improvement Programme of Government of India. The State of Maharashtra decided to implement the same for technical education in the State with the aid of World Bank. Towards implementation of the programme, two Government Resolutions were issued by the State on 19.07.2002 and 31.03.2004. The programme aimed that give autonomy to technical institutions so as to improve the quality of technical education. Accordingly, three engineering colleges, including the respondent No. 3 college, came to be granted administrative, financial and managerial autonomy with a further direction to procure educational autonomy. 3. Petitioners aver that directorate of the respondent No. 3 collage submitted a proposal dated 12.09.2012 for sanction of the posts of Assistant Professors, Associate Professors and Professors as per the norms of the All India Council of Technical Education (for short “A.I.C.T.E.”) and before receiving such sanction 4 wp_4546.16.odt proceeded, to fill up the posts as per the norms of the U.G.C. The respondent No. 3 college issued advertisements from time to time starting from the year 2011 for appointments on the posts of lecturers on contract basis on consolidated salary. The petitioners applied in pursuance to the advertisements. They were subjected to interviews before the Interviewing Committees consisting of subject experts and were selected in the selection process. They were appointed as lecturers/assistant professors on various dates beginning from the year 2011 onwards. The petitioners have produced a chart at Exhibit – A to the petition
Facts
showing their dates of first appointments. The appointments were purely on contract basis and on fixed consolidated salary for a period of eleven (11) months. At the end of the contract period, they were subjected to fresh interviews every year and were again selected. They have completed 3/5 years of service as lecturers as on the date of filing of the petitions. 4. It is averred that they fulfill the qualifications required for the posts, that they were appointed through proper selection committee and have worked for a substantially long period warranting regularization of their services. It is pleaded that in
Legal Reasoning
similar circumstances, this Court in the case of Sachin Ambadas Dawale Vs. The State of Maharashtra and others reported in 2014(2) Mh.L.J. 36 directed regularization of services of lecturers in Government Polytechnics in the State and upon rejection of Special Leave Petition of the State, the judgment was implemented regularizing services of similarly situated lecturers. 5. On these pleadings, the petitioners have sought the relief of regularization of their services and all benefits of permanency 5 wp_4546.16.odt including the deemed date with effect from 01.04.2016. They also seek salary in the payscales prescribed by UGC. They also prayed for interim injunction to restrain respondents from terminating their services. 6. The petition is opposed by the respondent No. 3 college by filing affidavit in reply. It is pleaded that the petitioners have not worked continuously for 3/5 years. They were appointed purely on temporary basis as a stop gap arrangement for eleven (11) months without following due process of recruitment. They were engaged on the basis of walk in interviews. For every academic year, fresh recruitment was carried out for such contractual appointments of eleven months. The norms of reservation were not followed. It is also pleaded that recruitment was not on the Government sanctioned posts. 7. The Joint Director, Technical Education, Regional Office, Aurangabad has filed affidavit in reply opposing the petitions. It is averred that as per the Government Resolution dated 23.10.2012, the board of management of the respondent No. 3 college was permitted to effect temporary appointments to fill up vacancies on contractual basis as a stop gap arrangement under para 10(xiii) of the G. R. The appointment process is otherwise not validly conducted. The appointments of the petitioners are without applying roster or reservation policy. The petitioners are not appointed on sanctioned posts. Only 109 posts were sanctioned divided into six posts for post graduate courses and 103 posts for the under graduate courses. The appointments of the petitioners are outside the said sanctioned strength. The judgment of this Court in the case of Sachin Ambadas Dawale 6 wp_4546.16.odt (supra) has no application to the present case, as the appointments are not on sanctioned posts. 8. Numerous pleadings have been filed by the parties after filing of affidavit in reply by respondent Nos. 2 and 3. However, since we are proceeding to record the detailed submissions made before us by the learned counsels appearing for the parties, we do not wish to burden this judgment by referring to each and every pleading. DEVELOPMENTS AFTER FILING OF PETITIONS 9. By order dated 04 May 2016, this Court had directed the respondents to maintain status quo regarding services of the petitioners and the interim protection was continued from time to time and continues to operate till date. 10. Ms. Talekar, learned counsel appearing for the petitioners has made a statement that the petitioner in Writ Petition No. 8027 of 2017 (Vaibhav Bapurao Aundhkar) and petitioners in Writ Petition No. 8024 of 2017 (Rahul Sandu Ankushe, Nitin Gangadhar Dhutraj and Pallavi Rameshwar Kamthekar) have left the services of the respondent No. 3 college during the pendency of these petitions. This is how rest of the Petitioners continue to be in service on account of interim order of status quo passed by this court. Civil Application No. 3167 of 2021 is also filed to seek interim orders for payment of salary as per payscales prescribed by UGC. 7 wp_4546.16.odt SUBMISSIONS ON BEHALF OF THE PETITIONERS 11. In her erudite style, Ms. Talekar, the Ld. Counsel appearing for the Petitioners would first take us through Sub Sector Development Programme for Technical Education/Technical Education Policy Improvement Programme of Government of India. She invites our attention to the Government Resolution dated 19.07.2002 to explain the scheme as implemented by the State Government. Relying on Clause 21 of the Government Resolution, she would submit that complete financial autonomy is aimed to be achieved by the management. Relying on para No. 4.1 of the Annexure I to the G. R. dated 19.07.2002, she would submit that the college was given freedom to decide number of teaching and non teaching staff. 12. Ms. Talekar would then rely upon Government Resolution dated 31.03.2004 issued for making improvements in the earlier Government Resolution dated 19.07.2002. She would submit that under the 2004 G. R., the college was given complete autonomy to determine staffing pattern other than the sanctioned posts. Under clause 2.3(i) and (viii), financial autonomy including determination of fee and other revenue sources was granted to ensure payment of salary for newly created posts. She would submit that under the Government Resolution, the college was empowered to create posts of teaching, managerial, technical, clerical and other posts and to make appointments thereon. 13. Ms. Talekar would then rely upon the Government Resolution dated 23.10.2012 issued for amending the 8 wp_4546.16.odt Government Resolutions dated 19.07.2002 and 31.03.2004. She would contend that in the list of colleges included in the G. R. dated 23.10.2012, the respondent No. 3 college was identified as, “Government owned college”. Inviting our attention to clauses (xiii) and (xiv) of paragraph 10 of the G. R., she would submit that the State Government made a conscious distinction between “Government autonomous institutions” and “Government owned autonomous institutions” in the matter of making appointments. She would submit that, for “Government autonomous institutions” regular appointments by nomination are to be made by the Government, whereas in, “Government owned autonomous institutions” such appointments are to be made at institution level by the board of management. She would submit that since the respondent No. 3 college is identified as, “Government owned autonomous institution”, it would be governed by the provisions of Clause 10(xiv), under which the respondent No. 3 college enjoyed full authority to carry out appointments by nomination at institution level through its board of management. She would therefore submit that appointments of the petitioners being made at institute level, are fully compliant to the provisions of the G. R. dated 23 October 2012. She would then invite our attention to the G. R. dated 06 May 2017, by which the powers conferred on the board of management to make appointments under Clause 10(xiii) of the G. R. dated 23.10.2012 of vacancies on contractual basis were withdrawn. She would submit that such withdrawal of authority is inconsequential to the petitioners as the respondent No. 3 college was never governed by the provisions of Clause 10(xiii) of the G. R. dated 23.10.2012. This is evidenced by the advertisement dated 23.12.2017 issued by the respondent No. 3 9 wp_4546.16.odt college to fill up the posts on contractual basis even after issuance of the G. R. dated 06.05.2017. 14. Ms. Talekar would then invite our attention to various advertisements issued by the respondent No. 3 college in pursuance of which petitioners have been appointed. She would submit that the advertisements were given wide publicity in the newspapers. She would further submit that norms of reservation were followed while issuing the advertisements. That the petitioners were subjected to interviews by duly constituted selection committees. She took us through various documents to buttress her contention that the selection committee comprised of some members as required under the recruitment rules proposed by the state level expert committee constituted by the Directorate of Technical Education Mumbai as well as the recruitment rules for regular appointments. She has also taken us through various appointment orders issued in favour of the petitioners. She would contend that breaks to the petitioners are technical in nature as the petitioners were mandated to discharge duties even during the break period. She would invite our attention to the A.I.C.T.E. report of the year 2016 in which the dates of initial appointments of each petitioner have been mentioned thereby belying theory of breaks in service. 15. Ms. Talekar, would then make strenuous efforts to demonstrate before us that the appointments were against sanctioned vacant posts. She would contend that under the AICTE norms, minimum 80% faculty is required to be regular faculty and the remaining could be adjunct faculty/ resource persons from industry. She would submit that the college has 10 wp_4546.16.odt only 80 sanctioned posts and that as per the A.I.C.T.E. norms, atleast 82 more posts are required for functioning of the college. She would submit that the college has less than 76 regular appointments, whereas it is operating with as many as 109 contractual appointments. She would further submit that in the year 1989 when students strength in the college was 240, 91 posts were sanctioned, whereas students strength rose upto 806 in the year 2016 with marginal increase in the sanctioned posts of 109. She would therefore submit that the posts against which the petitioners are working are the ones which are mandatorily required to be operated under AICTE norms and are thus required to be treated as sanctioned posts. 16. Ms. Talekar would submit that the petitioners are not appointed under Technical Education Quality Improvement Programme (TEQIP). In support of this contention, she relies upon information received under the Right to Information Act vide letter dated 31 May 2021, under which the college had given an information that no posts were filled under the TEQIP I, II and III. She would further submit that for filling up posts under the TEQIP, recruitment process is conducted by either MHRD or NPIU and since the recruitment process of the petitioners is done by the college, the same cannot be treated as TEQIP appointment. 17. Lastly, Ms. Talekar has cited several instances where faculty members in every colleges have been granted benefit of regularization relying on the judgment in the case of S achin Ambadas Dawale (supra). 11 wp_4546.16.odt 18. In support of the relief of equal pay for equal work, Ms. Talekar would submit that all the departments in the college are being run by the contractual faculty without there being single regular faculty member thereby evidencing that the petitioners are discharging the duties and responsibilities of regular lecturers/Assistant Professors. Giving instances of other colleges such as College of Engineering, Pune, she would submit that they are being extended the pay scales prescribed by the A.I.C.T.E. or are being paid much higher salaries than the Petitioners. 19. Ms. Talekar would rely upon following judgments in support of her contentions: I. Khusheshwar Prasad Singh Vs. State of Bihar and others reported in (2007) 11 SCC 447. II. Mohd. Abdul Kadir and another Vs. Director General of Police, Assam and others reported in (2009) 6 SCC 611. III. State of Haryana and others Vs. Piara Singh and others IV. V.
Decision
O R D E R A. The writ petitions are dismissed. B. Interim orders passed earlier stand vacated. C. There shall be no order as to costs. D. Pending civil applications also stand disposed of. [SANDEEP V. MARNE, J.] [MANGESH S. PATIL, J.] 44. After pronouncement of the judgment, learned advocate Ms. Talekar for the petitioners submits that the interim relief has been in operation till date and a breathing time be given to the petitioners to approach the Apex Court. 45. Considering the reasons for which we are dismissing the writ petitions, the request is rejected. [SANDEEP V. MARNE, J.] [MANGESH S. PATIL, J.] bsb/Sept. 22