(1) wp415-06 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 415 OF 2006 Dr. Gangadhar s/o Balkrishna Kulkarni, R/o 62, "Gajanan", Ramkrishna Nagar, Basmat Road, Parbhani, Taluka and District Parbhani. PETITIONER VERSUS 1. The State of Maharashtra, Through Secretary, Maharashtra Animal Husbandry and Dairy Department, Mantralaya, Mumbai. 2. The Maharashtra Animal Husbandry and Fishery Sciences University, through its Registrar. 3. Dr. Madan s/o Vasant Joshi, R/o Department of Pathology, P.G.I. Akola, Taluka and District Akola. RESPONDENTS .... Mr. U.S. Sawji, advocate for the petitioner. Mr. P.P. More, A.G.P. for the respondent/State. Mr. P.G. Rodge, advocate for respondent No. 2. Mr. P.G. Deshmukh, advocate for respondent No. 3. .... CORAM : SMT. NISHITA MHATRE AND M.T. JOSHI, JJ. DATE OF JUDGEMENT RESERVED : 2nd May, 2011 DATE OF JUDGEMENT PRONOUNCED : 5th May, 2011 JUDGEMENT (PER : M.T. JOSHI, J.) : 1. By the present writ petition, the petitioner is praying for quashing of order, dated 9th May, (2) wp415-06 2005, issued by the respondent No. 2 - the University, thereby promoting the respondent No. 3 from the post of Associate Professor to the post of Professor of Pathology. 2. The petitioner's contentions, in short, are as under : When the selection process for promotion to the post of Professor in Pathology was initiated, he was the seniormost candidate amongst the eligible Associate Professors. The respondent No. 3 stood at serial No. 3. The petitioner worked as an Associate Professor firstly on term basis and thereafter, on regular basis from 12th November, 1991 i.e. for a period of eleven years and six months till the date of selection process for the promotion. According to the Statutes of the University, 60% marks are allotted for past performance and 40% marks are allotted for personal interview. The Selection Committee, however, did not hold any interview against the provisions of Statute No. 60, and thus, though the petitioner is more suitable, qualified and senior, is superseded against the provisions of the (3) wp415-06 Statute. In fact, when this petition was filed, the petitioner was already appointed to the post of Professor in Pathology on temporary basis in view of the directions issued by the Vice Chancellor of the University, invoking the emergency powers conferred on him as per Statute 54. However, when regular selection process for promotion was initiated, the petitioner is superseded by contravening the provisions of Statute 60 and, therefore, the present petition is preferred. 3. The respondent No. 3 raised two preliminary objections. The first of the objection is that alternate efficacious remedy of approaching the Grievance Committee, as set up under the provisions of the Maharashtra Animal and Fishery Sciences University Act, 1998 (for short, "the Act") and the Statutes of the University, is available to the petitioner and, in fact, the petitioner has filed a representation before the said Grievance Committee and, therefore, according to the respondent No. 3, the petition is liable to be dismissed on this ground alone. He relied on the ratio laid down in “Bombay (4) wp415-06 Metropolitan Region Development Authority, Bombay vs. Gokak Patel Volkart Ltd. and others” 1995 (1) Mh.L.J. 257 and “Satchikitsa Prasarak Mandal and others vs. Maharashtra University of Health Sciences and others” MEC 13 = 2007 (5) Bom. C.R. 147. 4. Upon hearing both the sides for a considerable time, we are of the opinion that since the present petition is filed in the year 2005 and Rule was granted in the year 2006, now, it would not be equitable to discharge the Rule on this sole ground and direct the petitioner to avail the alternate remedy. 5. The next of the objection raised on behalf of the respondent No. 3 is that the petitioner has elected to undergo the regular selection process and, therefore, in view of the well settled principles of law, he cannot now challenge the result of the said selection process. 6. As regards this objection in respect of participation of the petitioner in the selection (5) wp415-06 process, based on the ratio laid down in “Sonali Ramkrishna Bayani vs. State of Maharashtra and others” 2003 (5) Mh.L.J. 738, it is to be noted that in the present case, the petitioner assailed the selection process not on the ground of final result of the selection process regularly held, but on the ground that the selection process held by the Selection Committee was against the provisions of the Statutes and in fact, a half-hearted process. It is the case of the petitioner that the Selection Committee did not hold personal interview at all as provided by Statute 60 of the University and, therefore, the principle would not be applicable in the present case. 7. Coming to the merits of the case, the seniority list, issued by the Registrar of the respondent No. 2 University on 31st December, 2001, shows that the petitioner was the seniormost amongst the five Associate Professors, though the respondent No. 3 tried to aver in his affidavit that he is the seniormost amongst the Associate Professors. Admittedly, there is no contention that the seniority (6) wp415-06 list was ever challenged by the respondent No. 3. 8. The provisions regarding the appointment of Academic Officers (including the post of Professor) in the University is prescribed in Chapter-V of the Statutes of the respondent No. 2 University. Statute 51 (4) provides that the posts of Professors, etc. shall be filled in by promotion and nomination in the ratio of 50 : 50 on the recommendation of the Selection Committee on the basis of merit and seniority in the discipline or group of disciplines as may be applicable. Statute Nos. 59 and 60 deal with the assessment and evaluation, respectively, to be made by the Selection Committee. In the present case, Statute 60 is relevant, which reads thus : “Statute 60. Evaluation. - Each member of the Selection Committee shall give marks individually to each candidate. The marks given by various members shall be added and arranged in descending order. Selection shall be on merit in the order of total marks scored by the candidates, giving 60 per cent for the past performance and 40 per cent marks for personal interview. (A) Past performance -, (1) Academic career. - (i) First class or equivalent at (7) wp415-06 Bachelor's and Master's level ….. 10 marks. (ii) Any one second class or equivalent in any of the degrees (Bachelor's or Masters) shall cause deduction of 2 marks, per case. (iii) One, third class or equivalent in Bachelor's or Master's degree shall cause deduction of 4 marks, in each case. (iv) Any extra degree shall cause addition of 2 marks limited to the total maximum of 10 marks. (2) Service Experience. - (i) Satisfactory completion of service years without any withholding of probation or increment. Total 5 marks. 3-5 years service 2 marks 5-10 years service 3 marks 10-15 years service 4 marks Above 15 years service 5 marks (ii) Research and extension publications 10 marks Scientific publications in journals of repute, internationally abstracted will get 0.2 marks each. Extension publications will get 0.1 marks each. (iii) Proven track record of ability to initiate, innovative teaching, research, extension education activities. 10 marks. (iv) Proven track record of effective resource management and additional co- curricular activities. 5 marks (v) Proven track record of novel administrative ability. 5 marks. (vi) Proven record of research with industrial collaboration Or getting funds through research schemes, etc. 5 marks. (vii) Generation of funds, receipts through novel schemes, such as, patent royalties, donations, innovative financial management, etc. 5 marks. (viii) Awards (only National or (8) wp415-06 International), development of new techniques, product patent, etc. 5 marks (Documentary evidence duly certified by the Head of the Office or Institute is essential). A candidate getting 25 or less marks out of 60 in the past performance shall be rejected. (B) Personal Interview ........... 40 marks. For personal interview, which shall consist of lecture presentation on work done by the candidate and his vision for future plan. A candidate getting 15 or less marks out of 40 from 50% of the present Selection Committee members shall be rejected even if his total grade may be higher than that of other candidates.” (Emphasis supplied) 9. Statute 62 provides for constitution of the Selection Committee and ultimately, directs that the Selection Committee shall make criteria for assessment and marking schemes consistent with the Act and the Statutes. 10. It is an admitted fact that during the impugned selection/ promotion process, no Personal Interviews were held and the same is the main objection of the petitioner in the present petition. (9) wp415-06 11. Mr. P.G. Deshmukh, learned counsel for the respondent No. 3 submitted that the process enumerated by Statute 60 is applicable only in case of recruitment of direct candidates. He alternatively submits that in order to find the merit, the Selection Committee has a right to choose any reasonable method to be applied equally to all the candidates. 12. Mr. Deshmukh further developed his argument by submitting that Chapter-V of the Statutes of the respondent No. 2 University is applicable to the appointment of Academic Officers i.e. Professors, etc. and the various Statutes contained therein would be applicable for the process of direct recruitment or for the process of promotion as and where applicable. We are afraid, no distinction is made in the Statutes for providing for the Assessment and Evaluation of the candidates selected through either of the process i.e. by Nomination or by Promotion. 13. In view of all above facts and circumstances, though we find that the promotion to (10) wp415-06 the post of Professor is to be made on the principle of merit and seniority, the Selection Committee of the respondent No. 2 University has, however, not followed the mandate of Statute 60 (B) of holding the Personal Interview, which prescribes substantive marks - 40 out of 100. Considering these legal aspects of the matter, the writ petition will have to be allowed. 14. In the result, the writ petition is allowed. The impugned order dated 9th May, 2005, issued by the respondent No. 2 University is hereby quashed and set aside. The respondent No. 2 University is directed to hold the fresh selection process in the light of the provisions of the Statutes framed by the respondent No. 2 University, particularly Statute 60 thereof. The Rule is made absolute in terms of above order. [M.T. JOSHI, J.] [SMT. NISHITA MHATRE, J.] 15. After pronouncement of the judgement, the learned counsel for the respondent No. 3 submits that (11) wp415-06 stay may be granted to the present order, as he apprehends that he may be removed from the post immediately. Considering the fact that the respondent No. 3 is holding the post for a long time, the respondent No. 2 - University is directed to maintain status-quo till the completion of the fresh selection process, as ordered earlier. The selection process be completed by the respondent No. 2 - University within a period of three months. [M.T. JOSHI, J.] [SMT. NISHITA MHATRE, J.] NPJ/wp415-06