High Court · 2024
Legal Reasoning
wp-11196.216exemption was granted by the University Grants Commission.The petitioner had no option but to approach this Court. LearnedAdvocate for the petitioner has taken us through all thedocuments and prayed for allowing the Petition. 5.Learned Advocate for the petitioner, points out theGovernment Resolution dated 6th March 1999 in respect ofcounting of past services for fixing the pay of the lecturers in theSenior / Selection Grade. Learned Advocate also relies on thedecision in the Mahatma Gandhi University and others vs.Rincymol Mathew (Civil Appeal No.8031 of 2022, decided on 10thNovember 2022), wherein it has been held by the Hon’bleSupreme Court that for grant of CAS benefits, Regulation 10.1 isrequired to be read as a whole and therefore the previousappointment as ad-hoc or temporary service of more than oneyear duration can be counted. However, the proviso is that theperiod of service should be more than one year duration, theincumbent was appointed on the recommendation of dulyconstituted selection committee and the incumbent was selectedto the permanent post in continuation to the ad-hoc ortemporary service, without any break. Learned Advocate for thepetitioner also relies on the decision of this Court in Mohd.Shafiuddin Mohd. Shamshoddin vs. the State of Maharashtra and wp-11196.217others (Writ Petition No.5164 of 2021, decided on 8th September2021), wherein it has been held that the petitioner therein whowas appointed on 1st July 1992, was held to be deemed to be inregular service and was not required to possess NET / SETqualification. 6.Learned Advocate for respondent No.4 relies on theaffidavit-in-reply filed by Shri Munjaji Vitthalrao Rasve, theDeputy Registrar, Academic Section of respondent No.4 andsubmits that as per the facts even in the Petition also on thedate of advertisement and selection, the petitioner was notpossessing requisite qualification as per the University GrantsCommission, University of Pune and State Government. As perthe qualifications prescribed by the University GrantsCommission for the post of lecturer, the candidate shall possessMaster’s degree in the relevant subject with at least 55% marksand shall also have passed NET / SET examination. Thepetitioner passed his M.Sc. (Chemistry) examination on 26thSeptember 1992, whereas the advertisement for the post he isholding, was published on 20th June 1992, interviews wereconducted on 20th August 1992 and the petitioner was selectedfor the said post. Initially appointment of the petitioner waspurely on temporary basis, that too for the academic year 1992-
Arguments
wp-11196.211 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.11196 OF 2021Balasaheb Laxman Shinde,Age-53 years, Occu:Service,House No.209, Tapovan Road,Sawedi, Savedi Road, Ahmednagar. ...PETITIONER VERSUS 1) The State of Maharashtra, Through the Secretary of Higher Education Department, Mantralaya, Mumbai-32,2) The Director of Higher Education, Maharashtra State, Pune,3) The Joint Director Higher Education, Pune Regional Office, Pune,4) The University of Poona, Poona, Through its Registrar,5) Shri. Dnyaneshwar Mahavidyalaya, Newasa, Through its Principal, Newasa, District-Ahmednagar. ...RESPONDENTS ... Mr. R.R. Deshpande Advocate h/f. Ms. P.R. Deshpande Advocate for Petitioner. Mr. P.S. Patil, Additional G.P. for Respondent Nos. 1 to 3. Mr. V.P. Golewar Advocate h/f. Mr. A.R. Joshi Advocate for Respondent No.4. Mr. R.S. Devdhe Advocate for Respondent No. 5. ... wp-11196.212 CORAM: SMT. VIBHA KANKANWADI AND S.G. CHAPALGAONKAR, JJ.DATE OF RESERVING JUDGMENT : 14th MARCH 2024DATE OF PRONOUNCING JUDGMENT : 2nd APRIL 2024 JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :1.Rule. Rule made returnable forthwith. Heard learnedcounsel appearing for the respective parties finally, by consent.2.Present Petition has been filed for following reliefs:-“(B)By issuing the writ of certiorari or any other appropriatewrit or order or direction in the like nature, the communicationdated 11/06/2014 issued by the respondent No.4 may kindlybe quashed and set aside.(C)By issuing the writ of mandamus or any otherappropriate writ or order or direction in the like nature, therespondent Nos. 1 to 4 may kindly be directed to regularizethe appointment of the petitioner from 28-09-1992 for allpurposes and to confer the CAS benefits from said date infavour of the petitioner.(D)By issuing the writ or mandamus or any otherappropriate writ or order or direction in the like nature, therespondent Nos. 1 to 4 may kindly be directed to pay the CASbenefits to the petitioner within the stipulated period whichthis Hon’ble Court would deem fit and proper. wp-11196.213(E)By issuing the writ of mandamus or any otherappropriate writ or order or direction in the like nature, therespondent Nos. 1 to 4 may kindly be directed to pay all thearrears of the CAS benefits to the petitioner with 15% interestp.a. till its realization.” 3.Heard learned Advocate Mr. R.R. Deshpande holding forMs. P.R. Deshpande for Petitioner, learned Additional G.P. Mr. P.S.Patil, for Respondent Nos. 1 to 3, learned Advocate Mr. V.P.Golewar holding for learned Advocate Mr. A.R. Joshi forRespondent No.4 and learned Advocate Mr. R.S. Devdhe forRespondent No. 5.4.Learned Advocate Mr. Deshpande appearing for thepetitioner submits that the petitioner had appeared for M.Sc.(Chemistry) final year examination of the academic year1991-92 and was waiting for his results. Being eligible as per theadvertisement and then prevailing University Grants CommissionRules and Regulations, the petitioner had applied for the post oflecturer in the subject of Chemistry, as ‘an appeared candidate’.The selection committee constituted as per the rules,interviewed the petitioner on 20th August 1992 and submitted itsreport on the same day recommending the name of thepetitioner for the appointment as lecturer for the subject of wp-11196.214Chemistry for unreserved open post. It was told to the petitionerthat the appointment would be given only after the declaration ofthe result of M.Sc. by the University. The results were declaredon 28th September 1992, wherein the petitioner had got firstclass. Thereupon, the appointment order came to be issued byrespondent No.5 College on 28th September 1992 itself. TheUniversity, by its letter dated 7th July 1993 approved the servicesof the petitioner from the date of joining till the end of academicyear 1992-93. Thereafter respondent No.5 had again publishedan advertisement inviting applications for the post of lecturer inChemistry i.e. on 26th May 1993. The petitioner once againapplied and was called for the interview before the selectioncommittee which was duly constituted. The selection committeeonce again selected the petitioner and thereafter respondentNo.5 had issued appointment order dated 1st July 1993. Thepetitioner was on probation for the period of two years. It isfurther submitted that the University Grants Commission hadconsidered the issue of exemption to the candidates who areappointed during the period from 19th September 1991 to 3rdApril 2000 in Maharashtra State, from NET / SET examinationand ultimately, by letter dated 22nd March 2010 considered andgranted exemption to several candidates from NET / SET wp-11196.215examination and the petitioner was one of them. RespondentNo.4 had circulated the list of said 1269 lecturers from PuneUniversity to whom exemption from NET / SET has been grantedby the University Grants Commission. Therefore, it is clear thatthe petitioner is in continuous employment of respondent No. 5College from 28th September 1992. The petitioner was entitled toCareer Advancement Scheme ( for short “CAS”) benefits fromthe said date. Respondent No.4, by order dated 11th June 2014informed respondent No.5 that the exemption from the NET /SET qualification for lecturers who are appointed during theperiod from 19th September 1991 to 23rd October 1992 is notapplicable to the petitioner and the proposal in this regard sentby the college to the University is not accepted. The record fromrespondent No.4 shows that the committee appointed byrespondent No.4 has not granted exemption to the petitionerfrom NET / SET and it was intimated to the concerned authoritiesby letter dated 4th July 2019. The petitioner had then approachedthe Grievance Committee of respondent No.4 by filing acomplaint with a request to grant him exemption from the NET /SET qualification, however, the Grievance Committee hadrejected the same by order dated 26th February 2021. In fact thesaid committee has stated that it has no jurisdiction when the
Decision
wp-11196.21893, for which approval was granted by the University. At the timeof appointment, the petitioner was not possessing the M.Sc.Degree as well as NET / SET qualification. Learned Advocate forrespondent No.4 further submitted that the Directorate of HigherEducation, Pune by its Circular dated 24th March 2014 specificallyclarified that services of the teachers who have been appointedbefore declaration of result of post-graduate degreeexamination, shall not be considered. As per the directives ofGovernment of Maharashtra, lecturers appointed during theperiod from 19th September 1991 to 23rd October 1992 wereexempted from NET / SET qualification. Accordingly proposals ofsome of the lecturers including the petitioner for exemption fromNET / SET qualification were placed before the ManagementCouncil of the University, however the Management Council in itsmeeting held on 6th May 2014 rejected the proposal of thepetitioner. The said decision was informed to the petitioner bythe respondent University by letter dated 11th June 2014. Thepetitioner preferred to make a complaint before the GrievanceCommittee and the Grievance Committee has rejected the claimof the petitioner. Therefore, the Writ Petition, deserves to bedismissed. wp-11196.2197.As aforesaid, the facts are showing that when theadvertisement was published on 20th June 1992 in onenewspaper and on 3rd July 1992 in another newspaper, thepetitioner had not received the degree. Though theadvertisements, which are on record, do not spell in clear wordsthat the candidates who had appeared for the final yearexamination of the post graduation would be considered, yetfrom the report of the selection committee, it appears that othercandidate who had appeared for the M.Sc. Examination, was alsoallowed to participate. The selection committee had submitted itsreport and accordingly the University had approved the servicesof the petitioner from 28th September 1992 for the academicyear 1992-93. It is to be noted that the results of the final yearof M.Sc. examination to which the petitioner had appeared, weredeclared on 28th September 1992. Then the appointment orderwas issued and also the joining report of the petitioner on 28thSeptember 1992. If the selection of the petitioner was not asper the procedure, then respondent No.4 ought not to havegranted approval even for the temporary appointment, becausehaving basic qualification is a mandatory condition. Further, itappears that after the said academic year was over, once againthe advertisement for the said post was published. Then again wp-11196.2110the selection committee had interviewed the petitioner and othercandidates on 13th July 1993 and selected the petitioner. Thesaid appointment order dated 19th July 1993 is also approved byrespondent No.4 University. It appears that there was a break inservice of the petitioner from 20th June 1993 to 18th July 1993,which was then condoned by respondent No.4 by letter dated25th November 2013. Under the communication from UniversityGrants Commission to respondent No.4 in March 2010,University Grants Commission had exempted the petitioner fromthe NET / SET qualification. The name of the petitioner appearedat serial No.101. The date of the appointment order of thepetitioner was then considered as 19th July 1993. It appears thatrespondent No.4 University had once again taken up the issue inrespect of the exemption to the lecturers from NET / SETqualification, who came to be appointed between the period from19th September 1991 to 23rd October 1992. The proposal toexempt those lecturers was rejected by letter dated 11th June2014 and the name of the present petitioner is at serial No.2. Itis to be noted from the order / communication given by theUniversity Grants Commission in March 2010 that the exemptionwas granted to those candidates since NET qualified candidateswere not available. Some lecturers who were even appointed in wp-11196.21112001, 2004 and even in 2007 were also exempted from the saidqualification of NET / SET examination by the said order of March2010. Therefore, the reason that was considered by theUniversity Grants Commission, ought to have been considered byrespondent No.4. It appears that the said communication dated11th June 2014 was challenged by the petitioner before theGrievance Committee in 2019 and the Grievance Committee byits order dated 26th February 2021, rejected the prayer of thepetitioner. Further, perusal of the order passed by the GrievanceCommittee would show that whether to grant exemption fromNET / SET qualification to the candidate or not was held to benot within the jurisdiction of the said Grievance Committee. If itwas not within its jurisdiction, then the Grievance Committeeought to have refrained from using the words / findings that theprayer of the petitioner cannot be granted. For taking thisdecision that the complaint filed by the petitioner does not fallwithin the jurisdiction of the Grievance Committee, theCommittee has taken about three years. 8.At the cost of repetition, we would like to say thatrespondent No.4 had in fact approved the services of thepetitioner and therefore now it cannot question the same on anyother ground. It appears that when University Grants wp-11196.2112Commission had granted exemption to the petitioner from NET /SET qualification, objection was not raised by respondent No.4University. The only fact is that the date of appointment of thepetitioner shown in the University Grants Commission order is19th July 1993. So it was the question of only between the periodfrom 19th September 1991 to 23rd October 1992 i.e. the lecturerswho came to be appointed during that period. When the saidappointment of the petitioner, though temporary, was approvedby respondent No.4 University then it ought to have beenconsidered by respondent No.4 University that the saidexemption got extended to the petitioner to his appointmentdated 28th September 1992. Again at the cost of repetition wewould like to say that though as per respondent No.4, thepetitioner was not qualified, yet without considering that whenthe said temporary appointment came to be approved by it,respondent No.4 is now estopped from taking a contrary stand.The services of the petitioner are then required to be regularizedfrom 28th September 1992 for all purposes and therefore, thecase is made out for interference. Hence the following order:- O R D E R(I)The Writ Petition is hereby allowed. wp-11196.2113(II)The communication dated 11th June 2014 issuedby respondent No.4 University is hereby quashed andset aside.(III)The petitioner shall be deemed to be regular inservice from 28th September 1992. (IV)In view of the above, the petitioner shall beentitled for all the benefits applicable for duly qualifiedlecturer including the CAS benefits, from 28thSeptember 1992.(V)The arrears of CAS benefits to the petitioner tocarry the interest at the rate of 4% per annum tillactual realization of it.(VI)The benefits flowing from this order shall begiven to the petitioner expeditiously and preferablywithin a period of four months from today.(VII)The Rule is made absolute in above terms.[S.G. CHAPALGAONKAR] [SMT. VIBHA KANKANWADI] JUDGE JUDGEasb/MAR24