1 201 wp 2366.03.doc K IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2366 OF 2003 The Principal Arts & Science College & Anr. ..Petitioners. Vs. Smt. Sawant Bharati Madhikar & Ors. ..Respondents. Mr. R.S.Apte, senior counsel i/b Mr. Mandar V. Limaye for petitioner. Mr. Suresh S. Pakale, senior counsel for respondent no.1. Mr. P.G. Sawant, AGP ‘B’ Panel for respondent no.2. CORAM : K.K.TATED, J. DATED : 21st April, 2011. PC: 1 Heard learned counsel for the parties. 2 By this Petition under Articles 226 and 227 of the Constitution of India, Petitioner-original respondent nos.1 and 2 challenges the order dated 17th September, 2002 passed by the learned Presiding Officer, Pune/Shivaji University and College Tribunal, Pune University Camp, Pune in Appeal No.53 of 2002 (S) allowing respondent no.1’s Appeal directing the petitioner to issue order of part time teacher’s appointment to the respondent 2 201 wp 2366.03.doc no.1 which shall have its effect in continuous force as if it was never disturbed by the intervening order of 19th March, 2001. 5 A few facts of the matter are as under: Respondent no.1 was appointed as a Lecturer on ad-hoc basis in the petitioner no.1-college during the academic year 1997-98 and 1998-99. In the year 1999-2000 the respondent no.1 was appointed as part time Lecturer for the English subject as per work-load available in their College by appointment letter dated 25th June, 1999. The Respondent no.1’s appointment as part time Lecturer was duly approved by respondent no.2 vide his letter dated 15th December, 2000 for one academic year. However, in the year 2001-02 respondent no.1 was appointed on clock hour basis due to lack of work load. Accordingly the letter dated 15th February, 2001 was issued to the Respondent no.1. The appointment of the respondent no.1 on clock hour basis (CHB) was duly approved by the respondent-authority by their letter dated 19th March, 2001. 6 Being aggrieved by the said letter/order dated 15th February, 2001 the respondent no.1 preferred an Appeal under section 91 of the Maharashtra Universities Act, 1994 3 201 wp 2366.03.doc challenging the decision taken by the petitioner appointing her on clock hour basis. The College Tribunal by its judgment dated 17th September, 2002 held that the order of reduction in rank passed on 19th March, 2001 which was based on the letter dated 15th February, 2001 issued by the office of the Joint Director Kolhapur Region, Kolhapur cannot be held as legal and proper and respondent no.1 will have to be reinstated with her original post of her appointment as part time teacher which she was conferred on the basis of her selection by the statutory Selection Committee. 7 Being aggrieved by the order dated 17th September, 2002, passed by the University and College Tribunal, the petitioner preferred the present writ petition on several grounds. The learned senior counsel appearing on behalf of petitioner submit that the Tribunal erred in coming to the conclusion that appointing the petitioner on clock hour basis amounts to a reduction in rank. The learned senior counsel further submits that the Tribunal erred in holding that they blindly followed the directions issued from time to time by the Joint Director’s office. He further submits that the Tribunal erred in not considering the work load chart for the year 2001-2002 of respondent no.1, submitted by the petitioner. 4 201 wp 2366.03.doc 8 The learned senior counsel appearing on behalf of petitioner vehemently argued that in view of section 59 of the Maharashtra Universities Act, 1994 the Tribunal has no jurisdiction to entertain the present Complaint which was filed by respondent no.1 on the ground of appointing her on clock hour basis. He submits that our High Court in the matter of Maharashtra Seva Sangh, Solapur and another vs. Shaikh Jamalchand and another reported in 2009 (4) Mh.L. J. 198 held that even if a full time teacher is appointed as a part timer or on clock hour basis, his grade or category of post as assistant teacher remains the same. In short, reduction of workload cannot be treated as reduction in rank. Paragraph 16 of the said judgment reads as under: “16. A plain reading of the expression “reduced in rank” as occurred in section 9 of the MEPS Act, means to reduce or to shift, may be under exigencies of situation or by way of punishment, to a post in lower grade than the one to which the concerned employee was initially recruited, or than the post which he was holding at the relevant time. It amounts removal from higher post and to appoint him to lower post or grade. In other words, reduction in rank has the same effect of removing an employee from a grade or category of post to a 5 201 wp 2366.03.doc lower grade or category. For instance, reducing/shifting from the post of Head Master to Assistant teacher. Such is not the case of respondent No.1. In my opinion, appointing a full time teacher as a part timer or on clock hour basis, in view of reduction of divisions or workload, would not amount to reduction in rank. Even if a full time teacher is appointed as a part timer or on clock hour basis, his grade of category of post as assistant teacher remains the same. In short, reduction of workload cannot be treated as reduction in rank. In the circumstances the impugned judgment deserves to be set aside also on the ground that the appeal filed by respondent No.1 under section 9 of MEPS Act itself was not maintainable.” 9 He also relied on unreported judgment in the matter of Mrs. Nalini V. Karnand vs. The Principal of K.J. Somaiya College of Arts & Commerce & Anr. dated 17th June, 2010 in Appeal no.875 of 2006 in Writ Petition no.3142 of 2002 (Coram: D.K.Deshmukh & Smt. R.P. SondurBaldota, JJ.) in which the same view taken. Paragraph 2 and 3 of the said judgment read as under: “2. The relevant facts are that the appellant was in the service of the respondent as full time 6 201 wp 2366.03.doc lecturer but due to reduction of work load, by order dated 01.08.1997 the appellant was appointed as part time lecturer. That order was challenged before the College Tribunal by filing an appeal under section 59 of the Maharashtra Universities Act. One of the objections raised on behalf of the Management was that the appeal is not maintainable because under section 59, an appeal lies before the College Tribunal against an order of dismissal, removal or termination or reduction in rank. The case of the appellant was that by the order dated 01.08.1997 he has been reduced in rank. That case was accepted by the College Tribunal. The learned single Judge, however, held that the College Tribunal was not justified in holding the appointment of the appellant as part time lecturer amounts to reduction in rank. The learned single Judge held that the conversion of the full time lecturer’s post in a part time lecturer’s post does not amount to reduction in rank as the holders of the post continues to be in the same rank, namely, lecturer. It is this order of the learned single Judge which is challenged in the appeal. 3. We have heard the learned counsel for both the sides and perused the order of the learned single Judge. The learned single Judge mainly relies on the judgment of the Supreme Court in the case of High Court, Calcutta vs. Amal Kumar Roy 7 201 wp 2366.03.doc (AIR 1962 SC 1704), where the Supreme Court has construed the term reduction in rank to mean reduction of a person from one cadre to lower cadre. The Supreme Court has held that expression rank has a reference to a person’s classification and not his particular place in the same cadre in the hierarchy of the service to which he belongs. Insofar as the present case is concerned the appellant was working as lecturer. He continued to be a lecturer even after the order, appointing him as lecturer was passed. Therefore, there is no question of his reduction in the rank. We do not find that any error is committed by the learned single Judge. Therefore, there is no reason to interfere.” 10 On the basis of these authorities and submission, the learned senior counsel appearing on behalf of Petitioner submits that the impugned order passed by the Tribunal dated 17th September, 2002 is not maintainable in law. 11 On the other hand, the learned senior counsel appearing on behalf of respondent no.1 vehemently opposed the present writ petition. He submits that the Tribunal rightly held that the order of reduction in the rank passed on 19th March, 2001 which was based on the letter dated 15th February, 2001 issued by the office of the Joint Director, Kolhapur Region, Kolhapur cannot be 8 201 wp 2366.03.doc held as legal and proper. He further submits that the Petitioner neither in their written statement filed before the Tribunal nor in the present writ petition raised objection about the jurisdiction. He submits that the point of jurisdiction is a mixed question of law and facts and therefore, same cannot be raised at appellate stage. 12 The learned AGP appearing on behalf of respondent no.2 submits that after considering the work load they issued letter dated 15th February, 2001 directing the petitioner to take appropriate steps for appointing respondent no.1 on clock hour basis. The Government filed their affidavit in reply dated 12th November, 2010 duly affirmed by Babasaheb B. Kadam in which the deponent stated that respondent no.1 filed an appeal before the Hon’ble Presiding Officer, Pune/Shivaji University and College Tribunal, Pune without there being any cause of action for the same. On the basis of this submission, the learned AGP submits that the order passed by the Pune/Shivaji University and College Tribunal, Pune is contrary to the well settled principles of law. 13 It is not necessary to go into the detailed discussion of the matter as the issue involved in the present case is squarely 9 201 wp 2366.03.doc covered by the Division Bench judgment in the matter of Mrs Nalini V. Karnand (supra) and the single Judge’s judgment in the matter of Maharashtra Seva Sangh, Solapur and another (supra). In both these authorities the court categorically held that even if a full time teacher is appointed as a part time or on clock hour basis his grade or category of post as assistant teacher remains the same. In short, reduction of the workload cannot be treated as reduction in rank. If there is no reduction in rank, then the appeal itself is not maintainable under section 59 of the Maharashtra Universities Act, 1994. The Section 59 of the Maharashtra Universities Act, 1994 reads thus: “59. Right of appeal:- (1) Notwithstanding anything contained in any law or contract for the time being in force, any employee (whether a teacher or other employee) in any university, college or recognised institution (other than that managed and maintained by the State Government, Central Government or a local authority), who is dismissed or removed or whose services are otherwise terminated or who is reduced in rank by the university or management and who is aggrieved, shall have a right of appeal and any appeal against any such order shall lie to the Tribunal: 10 201 wp 2366.03.doc Provided that, no such appeal shall lie to the Tribunal in any case where the matter has already been decided by a court or Tribunal of competent jurisdiction or is pending before such court or Tribunal on the date of commencement of this Act or where the order of dismissal, removal, otherwise termination of service or reduction in rank was passed by the management at any time before the date on which this Act comes into force and in which case the period for filing an appeal has expired. (2) Such appeal shall be made by the employee to the Tribunal, within thirty days from the date of receipt by him of the order of dismissal, removal, otherwise termination of services or reduction in rank, as the case may be: Provided that, where such order was made before the date of commencement of this act, such appeal may be made if the period of thirty days from the date of receipt of such order has not expired. (3) Notwithstanding anything contained in sub-section (2), the Tribunal may entertain an appeal made to it after the expiry of the said period of thirty days, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within that period. 11 201 wp 2366.03.doc (4) Every appeal shall be accompanied by a fee of four hundred rupees which shall not be refundable and shall be credited to the university fund; Provided that, it shall be lawful for the State Government to revise, by notification in the Official Gazette, such fees as it may deem fit from time to time.” 14 The learned counsel appearing on behalf of respondent relied on a judgment in the matter of Shri Somsingh Chandrasingh Thakur vs. Head Master, Capt. R.M. Oak High School, Dutta Ali Kalyan West, Dist. Thane & Ors. reported in 2004 (4) ALL M.R. 401 in support of his contention. The learned counsel appearing on behalf of the petitioner pointed out that said judgment is overruled by the Division Bench in the matter of Somsingh Chandrasingh Thakur vs. Head Master, Captain R.M. Oak School, Kalyan (W), Dist. Thane & Ors. reported in 2005 (4) ALL M.R. 610. As the issue involved in the present petition is covered by Division Bench as well as single Bench Judgment of this court, I have no hesitation to allow the present writ petition in terms of prayer clause (a) which reads as under: 12 201 wp 2366.03.doc “(a) that the records and proceedings of the judgment & order dt. 17.9.2002 passed by the Presiding Officer Pune/Shivaji University and College Tribunal in Appeal No.53/2002 be called for and after examining the legality, validity and propriety thereof the said judgment and order dt.17.9.2002 passed by the Presiding Officer Pune/Shivaji University and College Tribunal in Appeal No.53/2002 be quashed and set aside.” 15 Writ Petition is disposed of accordingly. 16 No order as to costs. (K.K.Tated, J.)