BENCH AT AURANGABAD v. Anil & Ors.

Mr. N.H. Borade, A.G.P. for respondent/State in W.P. Nos. 9890,9891 Mr. V.D. Hon, Advocate for the petitioner. Mr. S.M. Kulkarni, Advocate for respondent No.1. Mr. D.R. Korde, A.G.P. for respondent/State in W.P. Nos. 9893 & & 9892 of 2011. 9894 of 2011. P.C. :- CORAM : A.V. NIRGUDE,J. DATED :

03.09.2012

1. All these writ petitions can be disposed of by this common order. The facts of these writ petitions are almost similar. The petitioners are the management of a ( 3 ) wp9890.11 college situated at Mirajgaon, Tal. Karjat, Dist. Ahmednagar. Respondent No.1 in every petition was appellant before the College Tribunal. They all filed appeals challanging their termination. All respondents succeeded in their appeals and therefore the Management filed the petitions challenging the legality of the judgment. The facts are as under :-

2. The petitioner/management has established a senior college in 2001 as per the permission granted to them. Initially this college was not an aided college. In 2002 and 2005 the petitioner/management enlarged the college by adding science and commerce faculties. In the year 2004-2005 the Government awarded 25% of the grants to the college. In 2007-2008 the grants were increased to 50% and thereafter the college secured 100% grants. It is common ground that when in 2001 the college was started, respondent No.1 in each petition was appointed as a Lecturer. Since the respondents did not possess ( 4 ) wp9890.11 requisite eligibility at that time (passing of examination of NET/SET), they were appointed on contractual/clock hour basis. This arrangement continued from year to year. The respondents did not lose job and in the meantime neither they secured the required qualification at least till 2008.

3. It is also common ground that the University Grants Commission (UGC) empowered by the provisions of UGC Act, 1956, laid down regulations, by name, University Grants Commission (Minimum Qualifications Required For The Appointment And Career Advancement Of Teachers In Universities And Institutions Affiliated to It) Regulations, 2000. These regulations laid down minimum qualification for appointment of a candidate to the post of teacher and other posts in a college. Initially the minimum qualifications required for appointment as teacher was quite high as it required qualification of NET/SET examination, even for a candidate who has already ( 5 ) wp9890.11 secured Doctorate degree in his subject.

4. It is also common knowledge that in most of the areas at least in our State, post-graduate candidates were unable to acquired NET/SET qualification, despite number of attempts. The minimum qualified candidates thus were not available to most of the college and taking note of this ground reality, the Government of Maharashtra, from time to time passed and published resolutions allowing the college managements to appoint post-graduate candidates for the post of Lecturers etc. But this concession was qualified and was admittedly not contrary to the provisions of the regulations of UGC. The Government allowed the management to recruit candidates who did not possess minimum qualification i.e. NET/SET qualification as a Lecturer on condition that such appointment would be for two years or less period and that such candidate, if gets required minimum qualification, would be absorbed on permanent basis ( 6 ) wp9890.11 without further recruitment process. It is also common knowledge that despite such concession given to the management as well as candidates from 2001 onwards, contractual appointees on fixed pay (which was very meager) could not get minimum qualification of NET/SET examination. So, after every two years the state issued resolutions etc. allowing such candidates to continue their job and extended time limit for acquiring minimum qualification. This attracted lot of criticism from all sections of the society including the law courts.

5. On the other hand from time to time the minimum qualifications were reduced and in 2006 the minimum qualification for the appointment of teacher is worded as under :- “NET shall remain the compulsory requirement for appointment as Lecturer for those with post-graduate degree. However, the candidates having Ph.D. degree in the concerned subject are exempted from NET for PG level and UG level teaching. The candidates having M.Phil. degree in the concerned subject are exempted from NET for UG level teaching only.” ( 7 ) wp9890.11

6. This amendment was made on 14.06.2006 and was brought into effect immediately. Thereafter, on

19.08.2008, the UGC directed that the candidates who are already registered for M.Phil and completed the same on or before 30th June, 2009 should be exempted from NET for UG teaching. NET/SET shall be compulsory for candidate who complete their M.Phil. on or after 1st July, 2009. With this direction a candidate who could complete M.Phil. degree in the concerned subject prior to 1st July, 2009 is alone exempted from qualifying NET/SET. If he is unable to acquired M.Phil. qualification before 1st July, 2009, then despite acquiring M.Phil. qualification he is not exempted from qualification such as NET/SET.

7. The Government in June 2008 issued similar resolution and if translated in English it reads as under:- (i) The Lecturers who do not possess requisite qualification of NET/SET appointed on contractual basis should be reappointed for a period of 11 months. Such appointments shall continue subject to appointment of qualified candidates. On appointment of qualified ( 8 ) wp9890.11 candidates the appointments of contractual candidates would come to an end automatically (ii) The management should immediately take steps for appointing qualified candidates by adopting necessary procedure prescribed by the University. (iii) While reappointing the contractual unqualified lecturers, their performance for last two years should be taken into account and while giving them appointments, prescribed bond should be taken from them. In case, contractual unqualified Lecturer acquires NET/SET qualification, within the period of appointment, he should be immediately absorbed on regular pay-scale (his salary would be substantially increased). (iv) The unqualified contractual Lecturers shall not be entitled to claim right of appointment in case the management appoints a qualified candidate. He shall also not get continuation of service etc.

8. Reading this G.R. in juxtaposition of UGC directives and regulations, following situation according to me arises in these cases. In the beginning of academic year 2008-2009, the respondents are reappointed for eleven months. They were not having required minimum qualification either of NET or SET or M.Phil. They were, however, admittedly enrolled in M.Phil. Course in their subjects. They were admittedly pursing their studies. They were under obligation to acquire minimum qualification of either NET or SET within their ( 9 ) wp9890.11 contractual period.

9. The management, on the other hand were able to start recruitment process without waiting for the respondents' acquiring the minimum qualification. On 26th May, 2008, they published an advertisement for filling up posts of Lecturers in the subjects of respondents. They specifically mentioned that the candidates having minimum qualification as per UGC regulation, would be considered alone. Accordingly, various candidates submitted their application for appointment and they were subjected to interview as per university rules etc. The respondents did not apply, probably because they did not possess requisite minimum qualifications. It appears from the record that pursuant to the interview, the management selected some candidates and got their appointments approved also.

10. The pleadings of the parties thenceforth are ( 10 ) wp9890.11 little cryptic and vague. The respondents on one hand in the appeal memo did not mention that the management has appointed qualified candidates. Neither they mentioned that by the date of filing of the appeal, any one of them or all of them had acquired minimum qualification during the contractual period. This important assertion was necessary in every case. On the other hand, the management also did not clearly mention as to who were appointed following due process, replacing the respondents in their respective subjects as Lecturers and on what date. (The management at this stage is trying to indicate to this Court that the names and dates of appellants of six candidates with the date of their appointment). I am, however, not inclined to take this information on record, because this information was not before the learned Presiding Officer of the College Tribunal.

11. In my view, reading the provisions of ( 11 ) wp9890.11 regulations as well as the Government resolution, which are admittedly supporting each other, it is clear that in the beginning of academic year 2008-2009, the respondents were re-appointed for the period of 11 months and such appointment was subject to the conditions which are discussed above. At the cost of repetition it can be said that if they had failed to acquire the minimum qualification during the contractual period that too before appointments of the qualified candidates in their subjects, they are likely to lose their jobs. In this case, therefore, in my view, if the respondents could prove that they have acquired minimum qualification prior to the date of appointment of qualified candidates, the management is under obligation to absorb them. In-case, the management shows that they appointed qualified candidates after following due process prescribed by the university prior to the respondents’ acquiring required minimum qualification, the respondents probably would fail in their case. ( 12 ) wp9890.11

12. The problem which I face in this case is that the requisite factual information on this aspect has not come on record, but both the parties tried to convey some facts to me which are not yet relevant to these cases. Since, these facts cannot be taken into account now, only way out in the interest of justice is to remand the cases back to the Lower Court by giving opportunity to the parties to make amendment in their pleadings. I am aware that the above discussion on the basis of the resolution of 2007-2008 passed by the Government of Maharashtra in juxtaposition of the UGC regulations and directions is not found in the impugned judgment. I am sure that if the cases are remanded back, the parties would have ample opportunity to plead their cases in the light of above discussion and obtain necessary findings from the Tribunal. Besides this, the parties are also at liberty to plead any other point which is not discussed by me in this order. ( 13 ) wp9890.11

13. The impugned order is set aside. The cases are remanded back to the Lower Court. The Presiding Officer of College Tribunal is requested to dispose of the appeals as early as possible. [A.V.NIRGUDE,J.] snk/2012/SEP12/wp9890.11 ******