1 611210 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6112 OF 2010 Beena Inamdar, Adult, Occ.-Teacher, Residing at – 14, Gananjay Society, Swapnajit Bunglow, Kothrud, Pune-411 038. ...Petitioner Versus 1. University of Pune, Ganeshkhind Road, Pune - 411 007. 2. The Honourable Vice Chancellor, University of Pune, Ganeshkhind Road, Pune - 411 007. 3. Maharshee Karve Stree Shikshan Sanstha, Karve Nagar, Pune – 411 052. 4. Shri.Siddhivinayak Arts, and Commerce College for Women, Karve Nagar, Pune 411 052. 5. State of Maharashtra (Summons to be served on the Learned Government Pleader appearing for State of Maharashtra under Order XXVII, Rule 4, of the Code of Civil Procedure, 1908). 2 611210 6. The Secretary, Department of Higher and Technical Education, Government of Maharashtra, Mantralaya, Mumbai – 400 032. (Summons to be served on the Learned Government Pleader appearing for State of Maharashtra under Order XXVII, Rule 4, of the Code of Civil Procedure, 1908). 7. University Grants Commission, A body constituted under the UGC Act, having its office at Bahadurshah Zafar Marg, New Delhi – 110 002. ...Respondents. ...... Mr.A.V.Anturkar i/by Mr. S.B. Deshmukh for the Petitioner. Mr.Girish Kulkarni with Ms.Bhakti Deshmukh i/by Mrs. M.G. Kulkarni for Respondents No.1 and 2. Mr.Sandeep R. Waghmare for Respondents No.3 and 4. Mr.V.S.Gokhale, A.G.P., for Respondents No.5 and 6. Mr.Rui Rodrigues for Respondent No.7. ...... CORAM: A.M. KHANWILKAR AND MRS. MRIDULA BHATKAR, JJ. DATE : DECEMBER 8, 2011 JUDGMENT (Per A.M. Khanwilkar, J.):- 1. Rule. Rule made returnable forthwith, by consent. Counsel for the respective respondents waive notice. 3 611210 2. By this petition under Article 226 of the Constitution of India, the petitioner has primarily assailed the decision of respondent No. 2 dated 2nd July, 2010, as also the letter intimating the petitioner about the decision of the respondent No. 2 dated 2nd July, 2010. The petitioner further prays that this Court may issue appropriate writ directing the respondents No. 3 and 4, i.e., Management and College, respectively, to appoint the petitioner as Principal of the College, since she is duly qualified to be appointed to the said post, as was held by respondent No. 2 vide decision dated 30th March, 2007. During the pendency of this petition, by way of amendment, the petitioner has prayed for further reliefs. It is prayed that appropriate writ be issued for quashing and setting aside Government Resolution (hereinafter referred to as `GR’) No.NGC-1200/7193/(5/00)/VISHI-4 dated 13th June, 2000 issued by the Higher and the Technical Education Department of the Government of Maharashtra being ultra vires the provisions of the Maharashtra Universities Act, 1994 (hereinafter referred to as `the MU Act’). It is further prayed that appropriate writ be issued to quash and set-aside the letter written by the University Grant Commission (hereinafter referred to as `UGC’) to the respondent University informing about the inclusion 4 611210 of the name of the respondent No.4 College in the list prepared under Section 2(f) of the UGC being ultra vires the provisions of the UGC. 3. Briefly stated, an advertisement was issued by the respondent No.3 dated 6th July, 2006, which appeared in the local newspapers inviting applications for the post of Principal in respondent No. 4-College. Notably, the advertisement stated that the applications were invited for the post of Principal of the College run by respondent No.4 which is a fully aided Degree College affiliated to the University of Pune. As regards the educational qualification, experience and pay-scale of the candidate aspiring to apply pursuant to the said advertisement, it is stated that the same should be as per UGC, State Government and Pune University Rules. 4. Pursuant to that advertisement, the petitioner and others applied for the post of Principal of respondent No. 4-College. The interview was conducted on 10th September, 2006 by the Selection Committee, which, by its report dated 10th September, 2006 , by majority, recommended the name of the petitioner for being appointed to the post of Principal of respondent No. 4-College. 5 611210 5. However, the Chairman and the Vice Chairman of respondent No.3-institute did not agree with the recommendation of the Selection Committee. In their opinion, the petitioner did not possess necessary qualification of Ph.D. Degree for being appointed as Principal of the affiliated college. Inasmuch as the said qualification was specified by the State of Maharashtra, and which direction has been acted upon by the University of Pune and would be binding on respondents No. 3 and 4. Instead, they recommended the name of another candidate, Dr. Pushpa Ranade, after recording their remarks on the Selection Committee Report in that behalf. The report of the Selection Committee, with the remarks and recommendation of Chairman and Vice Chairman of the said institute, was then submitted to the University on 11th September, 2006. As there was no unanimous recommendation for appointing the petitioner to the post of Principal of respondent No.4-College, the University, by its letter dated 4th November, 2006, referred the matter back to the Selection Committee for resolving the matter amicably. As per the directive of the University, a special meeting of the Selection Committee was held on 29th November, 2006. In that meeting, the earlier Selection Committee Report dated 10th September, 2006 came to be confirmed. The said recommendation was submitted to the University. Respondent No. 2, Vice Chancellor of the University, approved the said 6 611210 recommendation of the Selection Committee, which fact is recorded in the communication dated 30th March, 2007. 6. Notwithstanding the above, respondents No. 3 and 4 did not issue appointment order in favour of the petitioner. Instead, respondent No. 3 issued another advertisement on 23rd February, 2009, inviting applications for appointment to the post of Principal of respondent No.4- College. As a result, the petitioner filed Writ Petition No. 2774 of 2009, inter alia, for quashing of the said advertisement dated 23rd February, 2009 and to issue direction to the appropriate authorities to refrain from releasing any salary grant-in-aid, if some other person were to be appointed to the post of Principal of respondent No. 4-College. The said writ petition was disposed of in terms of order dated 10th December, 2009, which reads thus:- “P.C. 1. Rule. Returnable forthwith. Heard finally by consent of parties. 2. By consent of parties, petition disposed of in following terms: (i) The learned Counsel appearing for the Respondents Nos. 3 & 4 states that the Respondents Nos.3 & 4 will withdraw the advertisement dated 23-2-2009 for the post of Principal. Statement is accepted. 7 611210 (ii) The learned Counsel appearing for the Respondent No.1 states that the Vice- Chancellor of the Respondent-University will decide the representation of the Respondents Nos.3 & 4 dated 28th September,2006, copy of which is at Exh. C to the reply-affidavit filed by Respondents Nos.3 & 4, after granting an opportunity of being heard to the Petitioner and the Respondents Nos.3 & 4 in accordance with law by a speaking order. Statement is accepted. (iii) It is directed that the Vice- Chancellor shall make his order on representation dated 28th September, 2006 as expeditiously as possible, in any case within a period of six weeks from today. (iv) Parties shall be at liberty to file additional material that they want to file within a period of two weeks from today. (v) In case the Vice-Chancellor maintains his order approving the selection of the Petitioner to the post of Principal, the Respondents Nos.3 & 4, subject to their right to challenge the order of the Vice- Chancellor, shall make the appointment of the Petitioner to the post of Principal within a period of four weeks from the date of communication of the order, unless they secure suitable order from the appropriate court or authority. (vi) Rule made absolute accordingly. No order as to costs.” (emphasis supplied) 7. Pursuant to the above order, respondent No. 2-Vice Chancellor, examined the matter, and, by his order dated 18th January, 2010, directed respondent No.3-institute to issue order of appointment in favour of the petitioner to the post of Principal of respondent No. 4- College within four weeks from the date of communication of the order so passed. Respondent No.2 was of the opinion that, as per clause 6 of the Government Resolution dated 13th October, 2000, since the petitioner was appointed to the post of Principal before 24th December, 1998 in 8 611210 Symbiosis Society’s Arts and Commerce College (i.e., from 14th December, 1993 to 15th April, 2006), the qualification of Ph.D. Degree was inapplicable to her. Instead, held that the petitioner was eligible to be appointed as Principal of respondent No.4-College as per the provisions of Government Resolution dated 28th March, 2001. It is further held that, as per Government Resolution dated 7th March, 1985, maximum six breaks in service within the total period not exceeding two years can be condoned by the Competent Authority, but each break shall not be more than a year. In the case of the petitioner, she was appointed as Principal of respondent No.4-College pursuant to the recommendation of the Selection Committee made in its report dated 10th September, 2006. As a result, there would be a break of only four and a half months in her service, which could be condoned as per the said Government Resolution dated 7th March, 1985. On this reasoning, respondent No.2 held that the petitioner was eligible to be appointed to the post of Principal of respondent No.2-College, and directed respondents No. 3 and 4 to issue an appointment order in favour of the petitioner within four weeks from the date of communication of the said order. 9 611210 8. The above-said order was challenged by respondents No. 3 and 4 before this Court by way of Writ Petition No. 1563 of 2010. The said writ petition was disposed of on 4th March, 2010. The said order reads thus:- “P.C:- On a motion made by the learned counsel appearing for the Petitioners names of Respondent Nos. 3, 4 and 5 are permitted to be deleted. 2. Rule. Returnable forthwith. Heard finally by consent of parties. 3. By consent of parties the order dated 18-01-2010 is set aside and the mater is remitted back to the Vice-Chancellor-Respondent No. 2 for denovo consideration and decision in accordance with law and the order passed by this court dated 10th December, 2009 in Writ Petition No.2777 of 2009. 4. Rule made absolute accordingly. No order as to costs.” 9. As the matter was remitted to respondent No.2 for re-consideration de novo, respondent No. 2, after taking into account the rival submissions, held that the advertisement dated 6th July, 2006 published by respondent No.3-institute, inviting applications for the post of Principal of respondent No.4-College clearly mentions that educational qualifications, experience and pay-scale for the post of Principal must be as per UGC, State Government and University of Pune Rules. Further, the norms prescribed by UGC by Notification dated 4th April, 2000 10 611210 stipulate minimum qualification, amongst others, for the post of Principal of the college and for their career advancement. Insofar as the post of Principal (Professor’s Grade) (Rs.16400-450/20900-500-22400) (Minimum to be fixed at 17,300/-), the incumbent must have a Master’s Degree with at least 55% of the marks or its equivalent grade of B in the 7 Points scale with letter grade O, A, B, C, D, E and F; Ph.D. or equivalent qualification; total experience of 15 years teaching / Research in Universities / Colleges and other institutions of Higher Education. Insofar as the post of Principal (Reader’s Grade) (Rs.12000-420-18300) (Minimum to be fixed at 22840), the minimum educational qualification prescribed is same as of the earlier cadre, but the teaching / research experience required is only of 10 years. Respondent No.2 then adverted to the Government Resolution dated 13th October, 2000, issued by the Government of Maharashtra, adopting the above qualification prescribed by UGC. Respondent No.2 then held that educational qualification of Ph.D. or equivalent qualification was essential qualification to hold the post of Principal of respondent No.4-College. 10. To buttress the above opinion, reference is made to provisions of Section 5(9) of the Maharashtra Universities Act, 1994 and Section 5(60) of the same Act, to hold that it was obligatory for the 11 611210 University to comply and carry out the directives issued by the Government of Maharashtra as regards qualifications for the post of Principals of the colleges. Respondent No.2 then observed that, as regards the petitioner, she did not possess the necessary educational qualification as recommended by UGC vide Notification dated 4th April, 2000 and adopted by the Government of Maharashtra vide Resolution dated 13th October, 2000. 11. Respondent No.2 then considered the argument of the petitioner that she has been working on the post of Principal prior to 24th December, 1998; and for that reason, the minimum qualification of Ph.D. or its equivalent as prescribed would not be applicable to her. That contention has been rejected on the opinion that the Government of Maharashtra issued Resolution dated 28th May, 2001 in continuation of the Government Resolution dated 13th October, 2000, which specifies the minimum qualification for the post of Principal. The said Government Resolution dated 28th May, 2001 has clarified that the person working as Principal in one college would be eligible to be appointed on the post in another college, even if he did not fulfill the essential qualification of Ph.D. Degree. However, in the case of the petitioner, on the date of her application on 9th July, 2006, pursuant to the advertisement dated 6th July, 12 611210 2006 and also the date on which her interview was held on 10th September, 2006 by the Selection Committee, she was, in fact, not working as Principal of another college. In that, she worked as Principal for Symbiosis Society’s Arts and Commerce College from 14th December, 1993 to 15th April, 2006. Thus, it is held that the petitioner was not entitled to rely on the Resolution dated 28th May, 2001. 12. Respondent No.2 then observed that, since the petitioner was ineligible, she should not have been called for interview for the post of Principal of respondent No. 4-College by the management. The respondent No.2 then dealt with the plea of the petitioner that it was not open to the Vice Chancellor to review his own decision taken on the earlier occasion. Even this contention has been rejected by relying on the order passed by this Court dated 4th March, 2010, which directed respondent No.2 to consider the entire matter de novo. As a result, respondent No.2 concluded that the petitioner did not possess the essential qualification of Ph.D. Degree for being appointed to the post of Principal of respondent No.4-College, as was prescribed by the Government of Maharashtra vide Resolution dated 13th October, 2000. This order dated 2nd July, 2010 was communicated to the petitioner vide letter dated 2nd July, 2010. 13 611210 13. Being aggrieved by this decision, the petitioner has, once again, approached this Court by way of the present petition under Article 226 of the Constitution of India. The reliefs claimed in the writ petition have already been adverted to in paragraph 2 above. In support of the aforesaid reliefs, the petitioner has asserted that going by the provisions of the MU Act, what should be the qualification for the post of teacher or for the post of Principal, is within the exclusive domain of respondent No.1 University. It is not open for respondent No.5 i.e. State of Maharashtra to lay down any qualification in that behalf. It is also not open even to the UGC to do so. It is then contended that going by the provisions of the UGC, the same are only recommendatory in nature. So long as the concerned University does not pass appropriate Statute to incorporate the same, the regulation framed by the UGC ipso facto does not become applicable. Thus, the norm specified in said regulations cannot be invoked to decide the question as to whether the petitioner possessed the necessary qualification for holding the post of Principal of the College. It is then asserted that the guidelines notified by the UGC vide Notification dated 4th April, 2000 is in respect of minimum qualification for the post of Professor, Principal, Reader and Lecturer in the Universities and in the Colleges and for their career advancement. 14 611210 The qualification prescribed in the said Notification is not adopted by the University of Pune by passing any Statute. The Statute of the University of Pune i.e. Statute No.413 prescribes the qualification for appointment of Principal. It does not specify that Ph.D. is essential qualification. It is then asserted that the respondent No.2 was ill-advised in deciding the controversy on the basis of the GR dated 13th October, 2000, issued by the State Government, which lays down the qualification for appointment to the post of the Principal. According to the petitioner, as per the provisions of the MU Act, the State Government, even though is an Authority, has a limited role to play; therefore, could not have specified the minimum qualification for appointment to the post of Principal, albeit, in exercise of executive power purported to be under Article 162 of the Constitution of India. For, that field is covered by the law authorising the University of Pune to prescribe the same, by virtue of the provisions of the MU Act. Thus, the GR can have no force in the eyes of law. In substance, the petitioner has asserted that the respondent No.2 ought to have decided the matter strictly in accordance with the Statute of the University and if the Statute does not provide for the minimum Ph.D. qualification to hold the post of Principal of the College, that qualification cannot be taken into account by relying on the recommendation of the UGC. 15 611210 14. The writ petition was fully heard by this Bench on 11th April, 2011 and the Judgment was reserved. However, before the Judgment could be pronounced, on 13th April, 2011, the matter was moved by the Counsel for the respondent No.4 to invite our attention to the fact that the respondent No.4 College has in fact been recognised by the University as per the provisions of UGC. In the light of this disclosure, the Counsel for the petitioner prayed for time to examine the matter including to amend the petition to urge further grounds as also to ask for further reliefs, if any. Accordingly, in the interest of justice, the petition was allowed to be amended to enable the petitioner to urge further grounds and to ask for further reliefs. As per that liberty, the petitioner has amended the petition. As per the amended petition, the petitioner asserts that the respondent No.4 College is not a recognised College as required in terms of Section 2(f) of the UGC Act. In that, no formal resolution has been passed by the Commission in that regard. The respondent No.4, however, merely relies on the letter (Annexure A-12) issued by the respondent No. 4. Going by that communication also, the respondent No.4 College cannot be considered as duly recognised College by the UGC within the meaning of Section 2(f) of the UGC Act. For, the stated communication is issued under the signature of the Under Secretary without following 16 611210 the statutory procedure. The provisions of the UGC Act mandates, contends the petitioner, that the proposal regarding recognition has to be placed before the Commission and the decision to grant or not to grant recognition must be that of the Commission. Instead, the procedure followed by the Commission with regard to the proposal of the respondent No.4 College was that the same was first placed before the Under Secretary of the Commission, who made his notings on the proposal. Thereafter, the proposal was placed before the Joint Secretary and eventually, before the Chairman of the UGC and after his signature, the communication Exhibit A-12 was issued by the Under Secretary informing the Registrar of the University of Pune that the name of the respondent No.4 has been included in the list of Colleges prepared under Section 2(f) of the UGC Act, 1956 under the head `Non-Government Colleges teaching up to Bachelors Degree’. By virtue of the said communication, the respondent No.4 College has become eligible to receive financial assistance from the UGC. But according to the petitioner, the purported recognition of respondent No.4 College is ultra vires the requirements of the Act – in absence of the decision of the Commission as a whole. No meeting of the Commission or any Resolution has ever been passed by the Commission to grant recognition to respondent No.4 College. According to the petitioner, there is no 17 611210 provision which could allow the Commission to delegate its powers of considering proposal for recognition of College to its Officers; nor such delegation has in fact been done by the Commission to the best of the knowledge of the petitioner. It is further asserted that the power of the State Government is only in respect of financial matters as referred to in Section 8 of the MU Act. Directions issued in that regard alone are binding on the University and the respective Colleges. Further, Section 2(26) by itself is not a source of power independent of Section 8 of the MU Act. According to the petitioner, the provision of Section 5(60) of the MU Act cannot be invoked by the State Government to lay down any qualification for the post of Principal or to adopt the qualification prescribed by the UGC. The prescription of the qualification prescribed by the UGC has to be adopted by the University and not because of the directions of the State Government. For that reason, the GR dated 13th June, 2000 was illegal and bad in law. 15. The respondents have filed reply affidavits both to the original petition as well as the amended petition. The sum and substance of the reply given by the respondents is that the petitioner did not possess requisite qualification as prescribed by the UGC. According to the respondents, the regulations specifying the minimum qualification for the 18 611210 post of Principal is spelt out in the Regulations called the University Grants Commission (Minimum Qualifications required for the Appointment and Career Advancement of Teachers in Universities and Institutions affiliated to it) Regulations, 2000 (hereinafter referred to as “the said Regulations”). The said Regulations were applicable to even institutions affiliated to the Universities established under the MU Act including the institutions that are recognised by the UGC under Section 2(f) of the UGC Act. Further, the Maharashtra Government vide Resolution dated 13th June, 2000 made the said UGC Regulations applicable to Universities and Colleges affiliated to the Universities within the State of Maharashtra. Clause (7) of the GR specifically mentions that the Universities shall ensure that the terms and conditions as specified in the UGC Regulations and Government Resolutions are strictly complied with by the Universities and College affiliated to them. The respondents have pressed into service Sections 5(49), 5(60), 14(5) and Section 8 of the MU Act to contend that the University has ample powers to lay down its own qualification as well as adopt the minimum qualification prescribed by the UGC for appointment to the post of the Principal of the College affiliated to it. Rather, the University is obliged to ensure that the minimum educational qualification required for the post of Principal as specified by the UGC is observed in every case and 19 611210 no appointment in breach thereof could be approved nor the College committing such breach will be entitled for grant-in-aid. The respondents have asserted that the fact that the Statute 413 does not prescribe qualification for the appointment to the post of Principal cannot enure to the benefit of the petitioner. For, the Vice Chancellor of the University, vide order dated 12th March, 2011, issued in exercise of power vested in him by virtue of Section 14(8) of the MU Act, has made the provisions of UGC Regulations and GR