High Court
Legal Reasoning
{1} wp 3505.22 R.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 3505 OF 2022Swami Ramanand TeerthMarathwada University, Nandedthrough it’s Registrar,“Dnyanteerth”, Vishnupuri,Nanded, Tal. & Dist. Nanded... Petitioner.VERSUS1. The State of Maharashtrathrough Principal SecretaryHigher & Technical Education Department, Mantralaya, Mumbai-32.2.Mohanish s/o. Ramesh MahamuneAge 39 years, Occ. Service,R/o. Gajanan Nagar, Ward No. 16,Khandala Road, Chikhali, Tal. Chikhali,Dist. Buldana...Respondents.…Mr. U.S. Malte, Advocate for petitionerMr. J.J. Patil, Advocate for respondent No.2Ms. R.R. Tandale, AGP for respondent No.1. CORAM : S.G. CHAPALGAONKAR, J. RESERVED ON : 7TH AUGUST, 2024. PRONOUNCED ON : 27TH AUGUST, 2024.ORDER :-1.The petitioner University impugns the judgment and orderdated 6.10.2021 passed by the University and College Tribunal,Aurangabad in Appeal No. SRTMU-08 of 2017. {2} wp 3505.22 R.odt2.Respondent No.2 had approached University and CollegeTribunal contending that under 12th Scheme of University GrantsCommission (UGC for short) certain amount was sanctioned to theUniversities to render education in the faculty of School ofComputational Sciences. The UGC had issued guidelines for recruitmentof teaching staff. The petitioner University passed a resolution toimplement the scheme and issued an advertisement inviting applicationsfrom the eligible candidates for appointment on the post of AssistantProfessor (Five Year Tenure from University Fund). The respondent No.2offered his candidature in pursuance of the advertisement and afterfollowing due procedure of law, he was appointed vide order dated10.12.2012 in the Pay Band of Rs. 15,600 – 39100/- with Annual GradePay of Rs. 6,000/- and eligible allowances like D.A., H.R.A. etc.3.The Management Council of University vide resolution No.1/23-2015, dated 20.2.2015 took a decision to issue regularappointments to employees like respondent, accordingly on 21.2.2015,petitioner University issued revised appointment order to respondent No.2. The revised appointment order stipulates that respondent No.2 isappointed as Assistant Professor in the school of educational sciences atUniversity on reserved ost, for UGC (XII) Plan, based on performance ininterview held on 10.12.2012. The appointment order stipulates thecondition that the appointment is on probation period of 2 years in theprescribed pay band. Surprisingly, vide communication dated 21.7.2017,one of the teacher appointed under the scheme ( Mr. Kalyankar) wasinformed by University that he is relieved from service w.e.f. 27.7.2017since his term of appointment of 5 years expires on 27.7.2017. The {3} wp 3505.22 R.odtreference was made to decision of management council dated25/07/2017.4.Aggrieved thereby, respondent No.2 approached theUniversity and College Tribunal by filing appeal under the provisions ofMaharashtra Universities Act assailing the resolution dated 25.7.2017passed in the meeting of Management Council thereby terminatingservices of respondent No.2. The petitioner University filed replyopposing the prayers in the appeal. The Tribunal, after hearing theparties, allowed the appeal vide judgment and order dated 6.10.2021,thereby setting aside the impugned termination order as well asresolution of the Management Council and directed the University to paysalary in accordance with the revised appointment order and bear thecost of the litigation. The judgment and order of the Tribunal is subjectmatter of challenge in this writ petition.5.Mr. U.S. Malte, learned advocate for the petitioner submitsthat respondent No.2 was appointed in pursuance to advertisement dated19.6.2012 on purely temporary basis for a specified term of 5 years. Theappointment order also specifies the aforesaid condition. He wouldsubmit that in absence of sanctioned post on establishment of theUniversity, the permanent appointment can not be made. Theappointment of the respondent No.2 is against the scheme of UGC, forwhich special grants were released. Thereafter, the University hadmoved the proposal to the State Government to make available salarygrants against the post of the petitioner. However, the State Governmentdeclined to entertain the proposal. He submits that even the revisedappointment order dated 21.2.2015 was on probation for two years. {4} wp 3505.22 R.odtThe University has never issued permanent appointment order.Respondent No.2 has no right to seek continuation of his services.6.Per contra, Mr. J.J. Patil, learned advocate appearing for therespondent employee, submits that the petitioner was interviewed by theSelection Committee constituted under Section 176 of the MaharashtraUniversities Act 1994. Prior to that, the advertisement was issuedinviting applications from the eligible and qualified candidates to holdthe post advertised. After following due process of law and on the basisof the recommendation of the Selection Committee, respondent No.2 wasappointed. He would submit that the courses against which therespondent No.2 was appointed, are still continued and there is sufficientstrength of students. In fact, there is shortage of requisite staff andrespondent No.2 is continuously rendering services since last more than12 years. He would submit that the respondent No.2 is now age-barredand not eligible for fresh appointment. Respondent No.2 was protectedby the interim order passed by Tribunal during the pendency of appeal.As such, till this date he has been continued in service.7.Mr. Patil, would invite attention of this Court towardsjudgment of the Division Bench of the Allahabad High Court in thematter of Dr. Ashish Kumar Pande vs. Chancellor, Ram Manohar LohiyaAvadh University, wherein, the issue as regards termination of employeesappointed under the 10th Five Year Plan of UGC was raised. The saidtermination was on account of denial of the State Government to bearthe expenses. He would submits that the Division Bench of the AllahabadHigh Court quashed and set aside order of termination of thoseemployees and directed reinstatement with continuity of the services. {5} wp 3505.22 R.odtThe order passed by the Division Bench of Allahabad High Court isconfirmed by the Supreme Court of India vide order dated 6.7.2017 inSLP © No. 18163 to 18165 of 2024.8.Mr. Patil would further invite attention of this court towardsjudgment of the Supreme Court of India in the case of Dr. Sushil KumarTripathi vs. Jagadguri Ram Bhadracharya Handicapped University andanother, (Civil Appeal No. 6255 of 2021 arising out of SLP (C) No. 17893of 2008 ) wherein, termination of Assistant Professors appointed underthe 10th Plan of UGC was the subject matter. The Supreme Court, whilesetting aside termination of the employees directed reinstatement withbenefit of continuity of service.9.Having considered submissions advanced, it can be gatheredfrom the averments and documents tendered into service that thepetitioner University, in pursuance to 12th Plan of UGC for generaldevelopment assistance to the Central, State Universities and institutionsadvertised the post of Assistant Professor in various streams/subjectareas. The UGC assistance was made available for the post created underthe scheme only for the plan period of 5 years. The University was putunder the obligation to ensure that UGC regulation of minimumqualification for appointment of teachers and other academic staff inUniversity and Colleges are strictly followed and sanctioned posts arefilled up within one year of approval of UGC. The Condition No. 5.18.2under scheme is made applicable to the State Universities that reads asunder :-5.18.2 In respect of State Universities, the following conditionsalso need to be fulfilled :- {6} wp 3505.22 R.odt(a)Assurance/undertaking may be obtained from the StateGovernment for taking over the liability of these posts after the XIIPlan period.(b)Assurance/undertaking may be given by the Universitythrough a resolution of the Executive Council to bear the burden ofthese posts after the XII Plan period.(c)Appointment shall be made on contractual basis. TheUniversities shall follow conditions regarding qualification etc. ofthe posts as prescribed under the UGC Regulations of 2010.”10.The petitioner - University floated an advertisement dated7.5.2012, thereby inviting applications for the post of Assistant Professorfrom the eligible candidates on temporary basis. Respondent No.2 wasinterviewed in pursuance to said advertisement. After interview, he wasdeclared as selected. Consequently, Appointment order dated 10.12.2012was issued, specifying five year tenure of post from University Fund. Itappears that latter on, Management Council of the University passed aresolution to merge teaching posts under UGC 12th Plan, under the head“staff” and sent the proposal to UGC. The resolution further recordsthat appointment of the teachers were made as per the rules of academiceligibility for appointment of teachers, as prescribed by UGC in theirRecruitment Rules through proper procedure followed by the University.Clause No.5 of the resolution stipulates for correction in the appointmentorders issued by the University to concerned teachers. The words“temporary appointment only” appearing in appointment order wasdirected to be replaced by “UGC 12th Plan posts”. Consequently, revisedappointment order dated 21.2.2015 was issued to respondent No.2stipulating that appointment is against the post for UGC 12th Plan. {7} wp 3505.22 R.odtAppointment is made on probation period of two years and allconsequential benefits of regular employees were made available.11.It is discernible from the undertaking dated 20.2.2015submitted by university to Secretary, University Grants Commission thatUniversity undertook liability of salary of these posts after the tenure ofUGC 12th Plan period, if the proposal to undertake liability andresponsibility of these posts after tenure of 12th Plan period is notaccepted by State Government. The petitioner University also madespecific correspondence dated 23.5.2015 to the Secretary of UGC, statingthat the appointment of teachers are permanent in nature and theresolution is passed by the Management Council to take responsibility forthe salary of appointed teachers/staff after completion of UGC 12th Planperiod. In response to such correspondence, UGC communicated thatthey would have share of Rs. 60 Lakhs or actual expenditure, whicheveris less.12.Pertinently, the petitioner university made a proposal to theState Government to bear the expenses towards 7 posts recruited underthe UGC 12th Plan. However, vide communication dated 5.7.2016, theSecretary of the Higher and Technical Education Department, refused toprovide salary grants against those posts. It appears that in pursuance tosuch communication by the State Government, the Management councilof the University passed impugned resolution to discharge respondentfrom service.13.The aforesaid sequence of events would clearly indicate thatalthough respondent No.2 was appointed against 12th UGC plan, based {8} wp 3505.22 R.odton financial assistance for limited period of 5 years, the University gave aspecific undertaking to UGC that after end of five years financialassistance, the petitioner university would either endeavor to getfinancial assistance from the State Government or bear the expenses fromits own funds. The Management council of the University has passedsimilar resolution and consequently, revised appointment order wasissued to respondent No.2. However, when the State Governmentdeclined to release salary grants, the Management Council of Universitypassed subsequent resolution to relieve respondent No.2 giving referenceto disinclination of the State Government to release salary grants afterinitial appointment for 5 years.14.Apparently, the University was aware that financialassistance under UGC 12th Plan would be only for 5 years. However,consciously took a decision to issue revised appointment order, removingthe clause of temporary post and treated the appointment to be onprobation period of 2 years with all consequential benefits. TheUniversity has also submitted an undertaking and assurance to the UGCthat the courses commenced under the UGC 12th Plan shall continue toexist, irrespective of the end of 5 years period of financial assistancereceivable from the UGC. The State Government declined to takeresponsibility to release the salary grants in respect of posts of AssistantProfessor recruited under 12th plan and for that reason, resolutioncontrary to its own decision is passed by the University.15.Pertinently, in similar circumstances Division Bench ofAllahabad High Court in the case of Dr. Ashish Kumar Pande vs.Chancellor (supra) has observed that the University gave assurance to {9} wp 3505.22 R.odtUGC to continue the courses while securing financial assistance under the12th Plan. Now, the University cannot be permitted to dispense with theservices of the petitioner-employee. The Division Bench has furtherobserved that appointment of the employees was not based on assuranceof State Government to release the salary grants, but it was the decisionof the University to appoint the employees to implement the 12th UGCplan and to continue such courses even after the end of 5 years period.16.Pertinently, in present case also all the courses initiatedunder the 12th UGC plan are continued by the University. The dataavailable depicts that there is sufficient strength of students. RespondentNo.2 employee is continuously rendering services till this date. In thatview of the matter, the dispensation of the services of the respondentNo.2 only on the ground that term of 5 years as per initial appointmentorder is expired, cannot be countenanced.17.The Supreme Court of India in the case of Dr. Sushil KumarTripathi (supra) also dealt with similar situation and observed thattermination of the services of the employees only after expiry of 5 yearsunder the plan of UGC cannot be approved as long as post held by theemployee is not abolished. In present case, admittedly, the courses arecontinued and sufficient number of students have been admitted. Therespondent No.2 has rendered his services for more than 12 years by thetime. In these circumstances, the decision of the Management Council ofthe University and consequential dispensation of services of the employeecannot be approved.18.The University Tribunal has considered aforesaid aspects in
Decision
{10} wp 3505.22 R.odtdetail and recorded finding that the dispensation of services is illegal ,consequently directed continuation of services of the respondentemployee. No fault can be found in the order passed by the Tribunal. Nocase is made out to cause interference under Article 227 of theConstitution of India. Hence, the writ petition stands dismissed. [S.G. CHAPALGAONKAR] JUDGE grt/-