Senior Advocate Mr v. D. Sapkal i
Legal Reasoning
WP-5746-2018.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 5746 OF 2018WITHCIVIL APPLICATION NO.2297 OF 2024Dr. Nitin s/o Chudaman Jadhav,Age: 40 years, Occu.: Service,R/o. Flat No.204, Shivnayan Apartment,Ahmednagar, Dist. Ahmednagar... PetitionerVersus1.The State of MaharashtraThrough its Secretary,Department of Medical Education,Mantralaya, Mumbai-32.2.The Director of Ayurved,Dr. Thadani Marg, Khanna ConstructionHouse, Worli, Mumbai.3.The Maharashtra University of HealthSciences, Nashik, Through its Registrar.4.The Divisional Commissioner,Nashik Division, NashikThrough its Backward Class Cell.5.Gangadhar Shastri Gune AyurvedicCollege, Ahmednagar,Through its Principal.6.Dr. Prerna M. Dighe @Dr. Prerna S. Bafna,Age : , Occu.: Service,R/o : Flat No.4, Swastik Residency,Bhavaninagar, Ahmednagar.7.The Secretary,Ayurved Shastra Seva Mandal,Vishram Baug, Maliwada,Ahmednagar. .. Respondents[1]
Legal Reasoning
WP-5746-2018.odt_____________________________________Senior Advocate Mr. V. D. Sapkal i/by Mr. Yuvraj S. Choudhari,Advocate for the Petitioner.Mr. P.S. Patil, Addl.GP for Respondent No.1 & 4/State.Mr. S.V. Natu, Advocate for Respondent No.2.Mr. A.S. Bayas, Advocate for Respondent No.3 (Absent)Mr. A.D. Ostwal, Advocate for Respondent No.6.____________CORAM : MANGESH S. PATIL AND SHAILESH P BRAHME, JJ. RESERVED ON : 19 JULY 2024 PRONOUNCED ON : 14 AUGUST 2024JUDGMENT [Per Shailesh P. Brahme J.] :- Rule. Rule is made returnable forthwith. Heard both thesides finally.2.Petitioner who is a teacher of the respondent no.5/PrivateAyurvedic College, is seeking directions to promote him to thepost of Professor in the same college and consequentially prayingfor forwarding proposal to the respondents for grant of approvalto it.3.Petitioner is rendering services with the respondent no.5 asa lecturer in subject Kayachikitsa from 10.08.2006. He was givenapproval by the respondent no.3/University vide order dated29.06.2012. He was appointed as Associate Professor vide[2] WP-5746-2018.odtappointment order dated 07.11.2017. The post of Professor inthe subject Kayachikitsa was vacant since 30.04.2015. He madeapplications on number of occasions to the respondentno.5/College for promoting him to the vacant post of Professor.As no steps were taken, he is constrained to approach this Court.The Professors and Associate Professors in MaharashtraAyurvedic Service Group - A and Assistant Professors inMaharashtra Ayurvedic Service Group - B", in the GovernmentAyurvedic Colleges under the Directorate of Ayurved(Recruitment) Rules, 2013 (for the sake of brevity hereinafterreferred to as the "Rules of 2013"), were promulgated by theGovernment of India. It provides that the post of Professorshould be filled in by promotion or nomination in the ratio of50:50. Though the petitioner is eligible, no steps have beentaken to promote him to the post in question. 4.The petition was amended by adding newly appointedteacher as Respondent no.6. But there is no correspondingamendment to pleadings and prayer of petitioner. 5.Learned Senior Counsel Mr. V.D. Sapkal appearing for thepetitioner submits that aided post of Professor should be filled in[3] WP-5746-2018.odtby promotion as on the last occasion, it was filled in by directrecruitment/nomination. Despite fulfilling eligibility criteria, thepetitioner has not been promoted to the post, deliberately. Hewould submit that respondent/College has misrepresented theauthorities in stating that post would be filled in by directrecruitment. The appointment of respondent no.6 is patentlyillegal and therefore only temporary approvals are granted to herfrom time to time. He would submit that it would bemisconception to treat the post as earmarked for physicallyhandicapped person. He would vehemently submit that Rules of2013 would govern the appointments.6.It is further submitted that no permission or approval wasgiven by the respondent no.2/Director to the respondentno.5/College to fill in the aided post of Professor in Kayachikitsaby direct recruitment. He would submit that the letter dated13.02.2024 issued by the Principal of respondent no.5/College tothe respondent no.2 would indicate that post in question was tobe filled in by promotion. The appointment of the respondentno.6 is on unaided post and on temporary basis.7.Learned AGP would rely on the affidavit-in-reply. He would[4] WP-5746-2018.odtsubmit that post of Professor in Kayachikitsa was verified by theDivisional Commissioner, B.C. Cell and held to be post ofnomination. According to him Government issued G.R. dated28.07.2017 and 22.01.2018 laying down procedure forrecruitment of teachers. The petitioner’s claim that post inquestion is promotional one, is misconceived.8.Learned Counsel for the respondent no.5 would oppose thepetition by tendering across the bar affidavit-in-reply. He wouldsubmit that as per the letter dated 22.04.2016 issued by theAssistant Commissioner, Backward Classes Cell, the post was tobe filled in by direct recruitment. The Joint Director instructedmanagement vide letter dated 02.06.2016 to reserve a post for ahandicapped person. The Post of Professor (Kayachikitsa) wasfilled in by direct recruitment, through handicapped category. 9.It is further contended that the advertisement was gotapproved from the University. By following due procedure of law,respondent no.6 was appointed vide letter dated 03.06.2015which was approved initially for one year only. Thereafter alsoshe was appointed and was granted approval. Lastly, theapproval was for two years with effect from 24.01.2024. The[5] WP-5746-2018.odtJoint Director, Pune was informed regarding appointment ofrespondent no.6. 10.The respondent no.6 would oppose the petition by filingaffidavit-in-reply. Her case is that she is a woman and having53% disability. She possesses requisite certificates. She wasappointed to the post in question by nomination by following dueprocedure of law. There was recommendation of the SelectionCommittee to her appointment. The appointment was approvedby the respondent/University. It is vehemently contended thatpost in question was to be filled in by nomination and not by wayof promotion in view of sanction of roster vide order dated22.04.2016. Learned Counsel would submit that petitioner wasnot eligible as he was promoted to the post of AssociateProfessor on 07.11.2017. He did not participate in the directrecruitment process. 11.Learned Counsel would submit that the management hadsolicited permission vide letter dated 07.12.2015 to fill in post ofProfessor by nomination. He would also refer to interim orderspassed by the High Court in Writ Petition No.9662/2017 filed byKisan Vidya Prasarak Sanstha. As the appointments of the[6] WP-5746-2018.odtrespondent no.6 have been approved by the University, the samecannot be doubted. It is further contended that no prayer hasbeen made by the petitioner to challenge appointment of therespondent no.6. 12.He would rely upon the decision of the Supreme Court inthe matter of Brahmo Samaj Education Society & Ors vs State OfWest Bengal & Ors., AIR 2004 SC 3358. It is further submittedthat the respondent/University formulated promotion rules, 2007and as per Rule -4, when a candidate for promotion is notavailable in the College, the post can be filled in by directrecruitment. Therefore, management resorted to the procedureof direct recruitment. Lastly he would pray to dismiss thepetition. 13.We have considered the rival submissions of the parties.Petitioner was appointed in the respondent no.5/College as aLecturer from 10.08.2006. He was promoted to the post ofAssociate Professor for the subject Kayachikitsa on 07.11.2017.The post of Professor fell vacant due to the superannuation of Mr.P.S. Pawar on 30.04.2015. The respondent no.6 was directlyrecruited to the post of Professor (Kayachikitsa) vide order dated[7] WP-5746-2018.odt03.07.2015. She was given further appointment vide order dated25.04.2017. Her appointment was approved on a temporarybasis on couple of occasions. Last such approval was of09.02.2024 with effect from 24.01.2024.14.Petitioner and respondent no.6 stake rival claim to the postof Professor in Kayachikitsa. The controversy pertains to modeof appointment to the post in question. There is no dispute thatMr. P.S. Pawar, who superannuated on 30.04.2015, wasappointed to the post of Professor by way of nomination. Wehave to take into account relevant rules to determine as to themode of filling in the post in question.15.The petitioner refers to rules of 2013. Relevant rules are asfollows :Rule 3.Appointment to the post of Professor in the Maharashtra Ayurvedic Service, Group ‘A’, inthe Government Ayurvedic College in the Directorate shall be made either,_(a)by promotion of a suitable person on the basis of strict selection with due regards toseniority from amongst the person holding the post of Associate Professor having not less than fiveyears regular service in the post;Provided that, Associate Professor in Sanskrit or Sanskrit Samhita Siddhanta who do notpossess qualification prescribed for appointment by nomination under clause (b) (ii) of this rule,will not be eligible for promotion on the post of Professor in Ayurveda Subject. OR(b)by nomination from amongst the candidates, who,_(i)are not more than fifty years of age :Provided that, the age limit may be relaxed by five years in case of candidates who are already inthe service of Government; and(ii)Possess qualification mentioned in Parts A, A-1, B or C in the Scheduled appended to the[8] WP-5746-2018.odtMaharashtra Medical Practitioner’s Act, 1961 (Mah.XXVIII of 1961) or an equivalent time, underthe Central Council of Indian Medicine Act, 1970 (48 of 1970) and possess post-graduate degree inconcerned subject of Ayurveda, obtained from Recognized Institute :(iii)possess total teaching experience of ten years in the concerned Ayurvedic subject out ofwhich there should be five years teaching experience as Associate Professor in the concernedAyurvedic subject from Recognized Institution;(iv)possess adequate knowledge of English, Marathi, Sanskrit and Hindi language.Provided that, preference may be given to those candidates whose original research paper beenpublished in indexed journals on National level or books in Ayurvedic recognized by Central Councilof Indian Medicine. Rule 7.Appointment to the posts mentioned in rule 3 and 4 by promotion and nomination shall bemade in the ratio of 50:50.16.It is clear from Rule No.3 that appointment to the post ofProfessor would be made either by promotion or by nominationand the ratio is to be maintained as 50:50. Earlier,respondent/University also floated rules 2007 for the promotionof the teachers in the private aided and unaided colleges. It’sclause no.1(c) also stipulates ratio of 50:50 for appointment tothe post of Professor, either by promotion or nomination. Wehave not been pointed out any other statutory provision, Rule orpolicy to provide anything contrary to the rules of 2013 or 2007.If the earlier appointment of Mr.P.S. Pawar was by nominationthen by way of rotation, the mode of appointment should havebeen by promotion only.17.The above referred position is fortified by correspondence[9] WP-5746-2018.odtmade by respondent/College to the Joint Director of Ayush on17.01.2024, showing vacant post of Professor for Kayachikitsawas to be filled in by promotion and further communication tothe Director of Ayush dated 13.02.2024 on the same line.18.The respondent/Management sought permission forrecruitment to the post of Professor by nomination videcorrespondence 07.12.2015. However, there is no material onrecord to show that such permission was ever expressly given bythe respondent nos. 2 to 4. No prior permission was given by therespondent nos.2 to 4 appointing a candidate to the post ofProfessor by nomination. 19.The respondents have relied upon verification dated07.04.2016 conducted by the Assistant Commissioner, BackwardClasses Cell which was communicated vide 22.04.2016. At serialno.10 post of Professor (Kayachikitsa) is mentioned and it is alsomentioned that direct recruitment 100%. There is nothing in thecommunication to indicate that the post of Professor inKayachikitsa was instructed to be filled in by nomination. Themode of filling in post of Professor is prescribed by Rules of 2013read with Rules of 2007 issued by the respondent/University. It[10]
Decision
WP-5746-2018.odtwould not be within the power of the Assistant CommissionerBackward Classes Cell to prescribe mode of appointment. He isempowered to verify the roster, backlog if any and policy ofreservation. Therefore, we are of the considered view that thecommunication dated 22.04.2016 cannot be construed as anypermission or instruction issued by Backward Classes Cell to therespondent/Management to fill in the post of Professor bynomination. We do not approve submission advanced by therespondents in this behalf.20.The respondent no.6 was appointed as a Professor initiallyby order dated 03.06.2015 and by further orders. Though herappointments were approved by the respondent/University, theapprovals were temporary in nature and for particular period.The respondent no.6 did not challenge the temporary approval.Her case was that the post was to be filled in by nomination andher selection was in accordance with law. Then, there was noreason to grant approval to her appointments temporarily. 21.Though pendency of the writ petition no. 9662/2017 filedby Kisan Vidya Prasarak Sanstha and the interim orders passedtherein are cited as a reason for not regularizing the appointment[11] WP-5746-2018.odtof the respondent no.6, those were not the orders in rem. Thoseinterim orders were applicable to the parties to the petition andnot to the parties before us. There was no blanket prohibition forany other Ayurved Colleges in the State of Maharashtra forundertaking process for appointment to the post of Professor. 22.The respondent/Management undertook impermissiblemode for filling in post of Professor. As on the last occasion, Mr.P.S. Pawar was appointed by nomination this time, it was theturn of promotion. The petitioner, therefore, rightly notparticipated in the recruitment process. Though there isrecommendation of the Selection Committee in favour of therespondent no.6, the mode undertaken for the recruitment to thepost of Professor was bad in law. The respondent no.6 was notgiven permanent approval. 23.We have examined the eligibility criteria for the post ofProfessor. According to Rules besides educational qualification,experience of 10 years as a lecturer or experience of five yearsas an Associate Professor would be good enough for the post inquestion. Considering petitioner’s initial appointment as alecturer from 10.08.2006, he was holding requisite experience[12] WP-5746-2018.odtand eligible to claim the post of Professor. The respondent/Management should have promoted and forwarded the proposalof the petitioner to the competent authority, seeking approval forthe promotion. Due to the appointment of respondent no.6,petitioner is denied promotional post which is arbitrary andcapricious. 24.Learned Counsel for the respondent no.6 refers to decisionrendered by the Supreme Court in the matter of Brahmo SamajEducation Society (supra). There cannot be any quarrel aboutthe ratio laid down therein. But the private management couldnot have trammelled right to appoint candidate to the post inquestion. The right of the management to appoint a candidate toa particular post is regulated by the Rules and the norms. In thepresent matter, we have recorded that there is violation of thenorms in treating the post in question as directly recruitable postin stead of promotional one. The judgment is not applicable tothe case in hand.25.The petitioner did not amend the prayer clause despiteimpleading respondent no.6. No prayer is made to challenge theappointment of respondent no.6. But we have found that the[13] WP-5746-2018.odtappointment of respondent no.6 is bad in law. The post inquestion cannot be said to be occupied. Despite that, there is noprayer challenging appointment of respondent no.6, there is noimpediment for us to grant relief to the petitioner under Article226 of the Constitution of India. We, therefore, pass followingorder :ORDER(i)The respondent no.5 shall treat post of Professor(Kayachikitsa) as promotional post for the present rotation andpromote the petitioner to the post.(ii)The respondent no.5 shall forward the proposal for grant ofapproval to the promotion of the petitioner to the respondentno.2 and 3.(iii)The proposal shall be decided within a period of four weeks.(iv)The Civil Application is disposed of. (v)Rule is made absolute in the above terms. SHAILESH P. BRAHME MANGESH S. PATIL JUDGE JUDGE najeeb..[14]