1 WP3843/2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 3843 OF 2011 Dr. Narendra s/o Babugir Gosavi, Aged 52 years, Occupation Service, Resident of Kailas Krupa, Tatelwadi, Nandurbar, Taluka and District Nandurbar Petitioner V E R S U S 1 The State of Maharashtra, Through it’s Secretary, Higher Education Department, Mantralaya, Mumbai – 32 Respondents 2 The North Maharashtra University Jalgaon, P.B. No. 80, Umavi Nagar, Jalgaon, Taluka and District Jalgaon, Through it’s Registrar 3 The Registrar @ the Returning Officer, to the Election of Five post graduate Teacher’s on the Senate of North Maharashtra University, Jalgaon, Taluka and District Jalgaon 4 Dr. Ashok s/o Mahadu Mahajan, Aged 47 years, Occupation Service, Resident of Heerashiva Colony, Nimkhedi Shivar, Jalgaon, Taluka and District Jalgaon Shri A.G. Magare, Advocate for the petitioner Shri V.G. Shelke, AGP for respondent No.1 Shri A.B. Girase, Advocate for respondent Nos. 2 and 3 Shri A.G. Talhar, Advocate for respondent No.4 CORAM : A.V. NIRGUDE, J. DATED : 29th September, 2011 ORAL JUDGMENT : 1. Heard. 2. Rule. Rule made returnable forthwith. By consent of the parties, this petition is taken up for final hearing and heard finally. 3. This petition is filed under articles 226 and 227 of the Constitution of India, challenging the order dated 10/05/2011 passed by the Registrar in the capacity of Returning Officer of North Maharashtra University, Jalgaon thereby declaring the petitioner to have ceased to be a member on Senate 2 WP3843/2011 of the University. 3. It is common ground that the petitioner got elected on Senate of the University a representative of Post Graduate teachers (category) of the University. 4. Section 25 of the Maharashtra Universities Act, 1994 provides various categories from which representatives would be elected, nominated etc. on the Senate. The relevant Section 25 (2) (y) reads as under. S. 25 (2) (y). POST GRADUATE TEACHERS – Elected by PG teacher from amongst themselves : 1. Having not less than 5 years teaching experience at Post Graduate level 2. Two shall be women 3. One shall be the person belonging to SC/ST/DTNT/OBC by rotation 4. Shall possess Ph.D. degree. 5. Having worked atleast 5 times as a Paper Setter/Examiner/Co- ordinator/Moderator at University Examination 6. Published minimum 3 Research Papers in peer reviewed/referred National / International Research Journals 7 Shall be a Ph.D. guide. 5. The petitioner filed his nomination for the election was declared elected. After few days, respondent No.4 made a complaint to the University that the petitioner was not qualified to represent the category of Post Graduate teachers, because he had not published required number of research papers. This allegation then became a subject matter of fact finding committee appointed by the University. This committee after hearing the petitioner held that he had plagiarized two of his research papers. They held that such conduct involved moral turpitude etc.. After the receipt of the report of the committee, a show cause notice was given to the petitioner under provisions of Sections 43 and 44 of the University Act, and was 3 WP3843/2011 asked to give his explanation why he should not be declared having ceased to be a member of the Senate? The petitioner gave his reply but it was not found good enough. The impugned order was passed. 6. I am not going into the correctness of the finding recorded by the above mentioned committee. I am assuming for the sake of deciding this petition that the petitioner made a false statement (about required number of published research papers) while filing his nomination for the election. The question I asked the respondent as to whether there is any legal provision which could be utilised for declaring the petitioner having incurred disqualification? The learned counsel appearing for the University Shri Girase places reliance only on Sections 43. Relevant provisions of S.43 and 44 are quoted below. 43. Notwithstanding anything contained in this Act or the Statutes made thereunder, where a person, elected, nominated, appointed or co-opted as an officer of university or a member of any of the authority or bodies of the university by virtue of his being eligible to be so elected, nominated, appointed or co-opted as such an officer or a member under any of the categories of officers or members specified by or under the relevant provisions of this Act in relation to such office, authority or body, he shall cease to be such an officer of the university or a member of such an authority or a body as soon as he ceases to belong to such category and shall be deemed to have vacated his office as such officer or member. 44. A person shall be disqualified for being a member of any of the authorities of university, if he - (a) is of unsound mind and stands so declared by a competent court; (b) is an undischarged insolvent; (c) has been convicted of any offence involving moral turpitude; (d) is conducting or engaging himself in private tuitions or private coaching 4 WP3843/2011 classes; (e) has been punished for indulging in or promoting unfair practices in the conduct of any examination in any form anywhere. (f) Discloses or causes to disclose to the public, in any manner whatsoever, any confidential matter, in relation to examination, the knowledge of which he has come to be in possession, due to his official position. 5. Shri Girase for respondent Nos. 2 and 3 asserted that the provisions of Section 43 would come handy in this situation. Both Shri Girase as well as Shri Talhar for respondent No.4 asserted that if the petitioner ceases to possess the required eligibility mentioned in S.25(y) for contesting the election as a representative of the category of Post Graduate teachers, he would cease “to belong to such category”. Shri. Girase further asserted that the words “eligibility and category” used in Section 43 should be read conjointly and if a representative of a category is found to have lost the eligibility, it should be held that he no longer remain a member of that category. I am afraid, this can not be accepted at all. Section 43 is enacted for some different eventuality. It only provides that when a person represents a category as member of the Senate and if such person ceases to belong to such category, he would automatically cease to be a member of the Senate. Section 43 in the later part says that such an elected member of a category would cease to be officer of the University / member of Senate etc no sooner he ceases to belong to his category. The phrase “as soon as he ceases to belong to such category” cannot be interpreted that such officer if found to be ineligible would not longer belong to his category. To give an example, it can be said that if the petitioner who is a Post Graduate teacher and employed in one of the colleges affiliated to the University, ceases to be such teacher by his resignation or dismissal etc., 5 WP3843/2011 he would automatically cease to be a member of Senate. The learned counsel appearing for respondent Nos. 2 and 3 placed reliance on the Judgment of this Court in the case of Ashok Vithobaji Gomashe v. Honourable Chancellor of Nagpur University and His Excellency the Governor of Maharashtra and others (2002 (4) Bom. C.R. 241) to buttress his submission on conjoint reading of words “category and eligibility”. I am afraid, the facts of that case are grossly different. In that case, the petitioner got elected on Senate as a member of category of Head of Department but then ceased to be a member of his category because subsequently, he gave charge of his post of Head of Department to his junior for joining certain research programme in the university. He stopped teaching. This Court therefore held that he ceased to be a member of category and so he no longer a member of Senate. So one must read the provision as it stands in the book. One cannot import something which is not intended to be included in the provision. 6. As said above, at the most it can be said that the petitioner after getting elected to the Senate of the University, now it is shown successfully that he was not in fact eligible to contest the election for not having published requisite number of research papers. But the provisions of the Act do not provide that such member of the Senate would stand disqualified because of such eventuality. In absence of such provision in the statute book, the Registrar who assumed the mantel of Returning Officer rather untimely could not have passed the impugned order as if he was deciding an election petition. There is no provision in the Act akin to the provision in several other statutes, permitting a defeated candidate to contest the election of his successful rival. Nor in S.44 (quoted above) there is no provision for covering this eventuality. 6 WP3843/2011 7. The learned counsel for respondent No. 4 shri Talhar pointed out that the petitioner at the time of filing nomination for the election had given an undertaking to the Registrar/Returning Officer that in case the information given about his eligibility is found to be incorrect, he would cease to be elected representative of his category. Shri Talhar asserted that in view of the finding recorded by the fact finding committee, time has come to give effect to the undertaking given by the petitioner. He thereby suggested that in view of the undertaking given by the petitioner, the Registrar/Returning Officer is entitled to use provisions of Section 43 to declare the petitioner as disqualified and therefore declare him as having ceased to be the member of Senate. This is rather wishful argument. Let us assume that in such eventuality the Returning Officer/Registrar informs him and reminds him of his undertaking and still if the petitioner purposely ignored his own undertaking. In such situation what action can be taken against him? Unfortunately, there is nothing in Section 43 to enable the Registrar or any officer of the University to declare that the petitioner had ceased to be a member of Senate. The question still remains as to what is the sanctity of the undertaking given by the petitioner? This undertaking has no statutory significance as no provision of law required a candidate to give such undertaking. So, the undertaking could be a promise. It can not be utilized by the University in the manner suggested by Shri Talhar. 8. In view of above, the petition should succeed. However, before parting with this Judgment, I must mention that the petitioner, being a highly educated person and above it a teacher, ought to have realized the moral importance of his own undertaking when the fact finding committee recorded their finding against him. But, the agonizing fact is the petitioner values his membership of the Senate higher than his morals. 7 WP3843/2011 9. The Writ petition stands allowed. Rule made absolute. The impugned order stands set aside. ( A.V. NIRGUDE, J. ) SRM/wp/3843/11/29/9/11ok