Full Judgment Text
2016:BHC-AS:18925
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11074 OF 2015
1. Madha Taluka Shikshan Prasarak Mandal )
Kurduwadi, Tal Madha, )
Dist.Solapur, 413 208 )
Through its President )
2. K.N. Bhise Arts & Commerce College )
Kurduwadi, Tal Madha, )
Dist.Solapur, 413 208 )
Through its Principal ) .. Petitioners
VERSUS
1. Prashant Kamlakar Narkhade )
Residing at Post Gulpoli, )
Tal. Barshi, District Solapur. )
2. Solapur University )
Solapur-Pune National Highway, )
Kegaon, Solapur 413 255 )
Through its Director, Board of College )
& University Development. )
3. Regional Joint Director )
Higher Education, Solapur Region, )
Solapur. ) .. Respondents
---
Mr.N.V. Bandiwadekar i/by Mr.Mandar G.Bagkar for the petitioner.
Mr.C.G. Gavnekar i/by Mr.Suhas S.Deokar for the respondent no.1.
Mr.S.D.Thokade for the respondent no.2.
Mr.A.R. Metkari, AGP for the respondent no.3-State.
---
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ALONGWITH
WRIT PETITION NO.10207 OF 2015
Prashant Kamlakar Narkhade )
Age 33 yrs. Occupation Teacher, )
Residing at Post Gulpoli, )
Tal. Barshi, District Solapur. ) .. Petitioner
VERSUS
1. Madha Taluka Shikshan Prasarak Mandal )
Kurduwadi, Taluka Madha, )
Dist.Solapur, 413 208 )
Through its President )
2. K.N. Bhise Arts & Commerce College )
Kurduwadi, Tal Madha, )
Dist.Solapur, 413 208 )
Through its Principal )
3. Solapur University through its Director )
Board of College &University Development)
Solapur-Pune National Highway, )
Kegaon, Solapur 413 255 )
4. Regional Joint Director )
Higher Education, Solapur Region, )
Solapur. )
5. Hon'ble Presiding Officer )
Savitribai Phule Pune, Shivaji & Solapur )
University & College Tribunal Pune, )
University Campus, Pune - 07. ) .. Respondents
---
Mr.C.G. Gavnekar i/by Mr.Suhas S.Deokar for the petitioner.
Mr.N.V. Bandiwadekar i/by Mr.Mandar.G.Bagkar for the respondent
nos.1 & 2.
Mr.S.D.Thokade for the respondent no.3.
Mr.A.R. Metkari, AGP for the respondent no.4-State.
---
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CORAM : R.D. DHANUKA, J.
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RESERVED ON : 18 July 2016
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PRONOUNCED ON : 3 August 2016
Judgment :-
. Rule, Respondents waive service. Heard finally.
2. By these two petitions filed under Articles 226 and 227 of
the Constitution of India, both the petitioners have challenged part of the
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impugned order and judgment dated 23 September, 2015 passed by the
Presiding Officer, Savitribai Phule Pune, Shivaji and Solapur University
and College Tribunal, Pune (for short the said Tribunal) in Appeal No.17
of 2012. By consent of parties, both the writ petitions were heard together
and are being disposed of by a common order and judgment.
3. The petitioner in Writ Petition No.10207 of 2015 was
appellant before the tribunal whereas the petitioners in Writ Petition
No.11074 of 2015 were the original respondent nos. 1 and 2 in the appeal
filed by the petitioner in Writ Petition No.10207 of 2015. By the said
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order and judgment dated 23 September, 2015, the said Tribunal has
allowed the appeal filed by the original appellant partly and had set aside
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the order of termination dated 21 August, 2012 w.e.f. 22 August, 2012
issued by the management and directing the management to reinstate the
original appellant on probation. The petitioner in Writ Petition No.11074
of 2015 has challenged the order passed by the said tribunal insofar as the
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order of termination dated 21 August, 2012 passed by the management
has been set aside. The petitioner in Writ Petition No.10207 of 2015 has
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impugned the part of the said order and judgment dated 23 September,
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2015 insofar as the tribunal has directed the management to reinstate him
on probation. Some of the relevant facts for the purpose of deciding both
these petitions are as under :-
4. For the sake of convenience, the petitioner in Writ Petition
No.10207 of 2015 (original appellant) is described as the petitioner and
the petitioners in Writ Petition No.11074 of 2015 are described as the
management in the later part of the judgment.
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5. On or about 13 May, 2010, the management issued an
advertisement to fill up the post of full time assistant professor of
Commerce in college run by the management. The petitioner was
qualified holding M.Com. degree and NET and also having passed NET.
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6. On 23 June, 2010, the University selected the petitioner for
the said post after holding interview of the candidates including the
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petitioner. On 30 June, 2010 the University Grants Commission issued
a Regulation known as University Grants Commission (Minimum
Qualification for Appointment of Teachers and other Academic Staff in
Universities and Colleges and Other Measures for the Maintenance of
Standards in Higher Education) Regulation, 2010 which provided for a
period of probation of 1 year extendable by a maximum period of 1 more
year in case of unsatisfactory performance. In the said regulation, it was
provided that the confirmation at the end of one year was to be automatic
unless extended by specific order before the expiry of one year. It was
however made incumbent on the part of the institutions to issue order of
confirmation within 45 days of completion of probationary period.
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7. On 21 August, 2010 the management issued an appointment
order to the petitioner in which it was mentioned that his appointment
was for one academic year. It is the case of the petitioner that the
petitioner was however continued in the said post after one year also. On
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29 July 2010 the Solapur University informed the Principal of
respondent no.2 that the petitioner was selected on an open post as full
time assistant professor in Commerce on probation.
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8. On 15 February, 2011 the State of Maharashtra passed a
resolution adopting the regulation issued by Universities Grants
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Commission with effect from 30 June, 2010. It is the case of the
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petitioner that on 7 March, 2011 the Vice-Chancellor of Solapur
University issued a direction under section 14(8) of Maharashtra
Universities Act, 1994 accepting the said decision of the State
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Government dated 15 February, 2011.
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9. On 20 July, 2012 the management issued a notice to the
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petitioner informing that his probation period was expiring on 22
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August, 2012 and he would be liable to be terminated on 22 August,
2012. The respondent no.1 terminated the services of the respondent no.1
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w.e.f. 22 August, 2012. Being aggrieved by the said order of termination
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dated 22 August, 2012, the petitioner filed an appeal before the said
tribunal at Pune bearing No.17 of 2012 (SO) along with an application
for interim reliefs. The said appeal filed by the petitioner was resisted by
the management by filing reply before the said tribunal. The petitioner
filed a counter affidavit to the said reply filed by the management
alongwith the documents including the attendance sheets and the letter
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dated 26 March, 2013 issued by the Solapur University. The Solapur
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University also filed an affidavit on 10 August, 2015 before the said
tribunal.
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10. On 23 September, 2015, the said tribunal partly allowed the
said appeal filed by the petitioner and has set aside the order of
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termination dated 21 August 2012 by directing the management to
reinstate the petitioner on probation. This order and judgment of the said
tribunal has been impugned by the said petitioner and also by the
management by filing the aforesaid two writ petitions.
11. Mr.Bandiwadekar, learned counsel appearing for the
management submits that the petitioner was appointed by the
management purely on temporary basis. He placed reliance on the order
of appointment issued by the management and would submit that the said
order of appointment did not state that the said appointment was made on
probation. He submits that the appointment of the petitioner was for one
academic year which order of appointment was accepted by the petitioner
without any demur or complaint. He submits that the appointment of the
petitioner was on temporary basis and not on probation at all. It is
submitted that the petitioner thus did not have any right to hold the said
post and the service of the petitioner could be thus terminated by the
management after expiry of the said period of one academic year based
on the terms and conditions of the said order of appointment. It is
submitted by the learned counsel that the management had found that the
work of the petitioner was unsatisfactory and thus the management was
right in terminating the services of the petitioner on that ground. He
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submits that the tribunal thus ought to have dismissed the appeal filed by
the petitioner in toto.
12. Without prejudice to the aforesaid submissions, it is
submitted by the learned counsel for the management that even if the
appointment of the petitioner was to be considered as an appointment on
probation, according to the statutes framed by the respondent no.2
University, the probation period of the petitioner was for two years. The
petitioner had admittedly not completed the said period of two years and
thus he could not have claimed the permanency. He submits that since
the work and conduct of the petitioner during the said probation period
was not at all satisfactory, the management had rightly decided not to
continue the services of the petitioner beyond the period of probation and
not to confirm him in service. He submits that the management had
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accordingly passed a resolution on 16 August, 2012 which was followed
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by a notice of termination dated 20 July, 2012. Learned Counsel invited
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my attention to the said notice dated 20 July, 2012 and would submit
that it was clearly stated in the said notice that the work of the petitioner
during the period of probation was not satisfactory and his services were
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terminated. He submits that the said termination by the notice dated 20
July, 2012 was a termination simplicitor without any stigma which is
permissible in law. He submits that the order of termination issued by the
management thus could not be considered as a punitive action on the part
of the management.
13. It is submitted by the learned counsel that the said tribunal
could not have rendered a finding that the services of the petitioner were
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terminated on account of the complaint against him which amounted to
the penalty being imposed without holding any enquiry. He submits that
the management was not required to conduct any enquiry against the
petitioner in view of the petitioner having been appointed on temporary
basis and even if was considered to have been appointed on probation, the
services of the probation could be terminated if his work was found
unsatisfactory during the period of probation. He submits that the
services of the petitioner thus could be terminated by giving one month
notice without conducting any enquiry which notice was admittedly
issued by the management to the petitioner.
14. It is submitted by the learned counsel for the management
that the management had not terminated the services of the petitioner due
to any complaint received by the management against the petitioner. No
such complaints were thus referred by the management in the resolution
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passed by it or in the notice of termination issued on 20 July, 2012 and
thus the order of termination could not have been considered by the said
tribunal as punitive termination which would have required an enquiry
before issuing any such order of termination.
15. It is submitted by the learned counsel for the management
that the tribunal even otherwise could not have directed the reinstatement
of the petitioner to the said post in view of the fact that the said post on
which the petitioner was appointed was no longer in existence in the
college run by the management for want of sufficient students. The
university had already declined to sanction full time post not only in
respect of the said subject but also in respect of the other subjects. He
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submits that not a single post is sanctioned by the university in the
college on a full time basis. The management is required to appoint the
teachers on the clock hour basis. He submits that the department has also
declined to sanction the grant in aid for old teaching post in the
commerce faculty in respondent no.2 college including for the post of
assistant professor in commerce which was occupied by the petitioner. In
support of this submission, the learned counsel for the petitioner invited
my attention to section 61 and more particularly section 61(e) of the
Maharashtra University Act and would submit that if this court comes to
the conclusion that there is no post available on which the petitioner was
originally appointed in view of there being no students in the said
commerce faculty, the said tribunal could not have ordered reinstatement
in favour of the petitioner and at the most could have ordered some
compensation in his favour.
16. Learned counsel for the management also placed reliance on
the provisions of section 51(8) and section 52 and would submit that
since there was no amendment in the statute framed by the University, no
reliance on the said regulation framed by the University Grants
Commission or on the directions issued by the Vice-Chancellor could be
placed by the petitioner.
17. It is submitted by the learned counsel for the management
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that the management had not issued any show cause notice on 20 July,
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2012 as held by the said tribunal. He submits that on 21 August, 2012
the services of the petitioner had already come to an end by efflux of time
and thus the said so-called letter of termination could not have been
considered as an order of termination at all.
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18. Learned counsel for the management invited my attention to
clause 7.4.0 of the notification issued by the Government in the Gazette
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of India dated 18 September 2010 which provides that the Universities/
State Governments shall modify or amend the relevant Act/Statutes of
the Universities concerned within six months of adoption of these
regulations. He submits that since the Solapur University has not
amended the statute so as to reduce the period of probation from two
years to one year, the said regulation issued by the University Grants
Commission reducing the period of probation from two years to one
year could not be implemented by the Solapur University and/or no
reliance thereon could be placed by the petitioner.
19. Learned counsel for the petitioner, on the other hand, invited
my attention to various annexures to the writ petition filed by the
petitioner and would submit that the petitioner was appointed on
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probation by the College vide letter dated 21 August 2010. The
appointment of the petitioner was subject to the final approval by the
Solapur University, Solapur. He also placed reliance on the approval
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granted by the Solapur University on 29 July 2010 to the appointment
of the three Assistant Professors including the petitioner on probation
as full-time Assistant Professors. My attention is also invited to the
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letter dated 7 June 2011 issued by the Solapur University addressed to
the management relating to “changes-in-staff approval letter.” He
submits that name of the petitioner was mentioned in the said letter,
giving the date of his appointment as an Assistant Professor in the
subject 'Commerce' and stating that he was appointed on probation.
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20. It is submitted by the learned counsel for the petitioner that
the said tribunal has misread the statute no.198 framed by the Shivaji
University which provides for the period of probation of 24 months from
the date on which the teacher joins his duty. He submits that the said
statute provides that the governing body shall assess the suitability of
the teachers before the expiry of period of the probation. It is submitted
by the learned counsel that the University Grants Commission had
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admittedly issued a regulation referred to aforesaid on 30 June 2010
which provided that the minimum period of probation shall be one year
and extendable by a maximum period of one more year in case of
unsatisfactory performance. He submits that at the end of one year, the
petitioner had attained the status of a permanent employee. It was
incumbent on the management to issue an order of confirmation within
45 days of completion of probationary period. He submits that period of
one year of probation was not extended by the management.
21. It is submitted that the said regulation framed by the
University Grants Commission was wholly adopted by the State
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Government by its decision dated 15 February 2011. My attention is
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invited to the order dated 7 March 2011 issued by the Vice Chancellor
of Solapur University by exercising powers under Section 14(8) of the
Maharashtra Universities Act, 1994 thereby reducing the period of
probation from two years to one year. He submits that the order issued
by the Vice Chancellor was issued by exercising powers under Section
14(8) of the Maharashtra Universities Act, 1994 and the same was in
conformity with the decision taken by the State Government by
adopting the regulation framed by the University Grants Commission.
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22. It is submitted that till such time an amendment to the
statute was carried out by the Shivaji University, the said regulation
framed by the University Grants Commission duly adopted by the State
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Government and followed by an order dated 7 March 2011 issued by
the Vice Chancellor under Section 14(8) of the Maharashtra Universities
Act, 1994 reducing the period of probation from two years to one year
was binding on the Universities, the employees and staff of the Colleges
affiliated to such Universities and also the colleges affiliated to university.
It is submitted that admittedly the petitioner was already appointed as an
Assistant Professor prior to the said regulation framed by the University
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Grants Commission on 30 June 2010 coming into force and thus the
petitioner was governed by the said regulation framed by the University
Grants Commission reducing the period of probation from two years to
one year.
23. It is submitted by the learned counsel for the petitioner that
merely because the period of probation was not mentioned in the
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appointment order issued by the management on 21 August 2010, the
management could not raise a plea that the period of 24 months would
be probationary period contrary to the regulation framed by the
University Grants Commission which was duly adopted by the State
Government and also by the Solapur University. He submits that the
fact remains that the appointment of the petitioner was subject to the
approval granted by the University. In the order of approval issued by
the University, the petitioner was admittedly granted approval on
probation.
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24. It is submitted by the learned counsel for the petitioner that
the said tribunal has misread the provisions of Section 52(1) of the
Maharashtra Universities Act, 1994 by holding that the statute no.198
which provides for probation period of 24 months was not amended
and thus the period of probation of two years could not have been
considered as one year without bringing out any amendment to the
statute. He submits that the Vice Chancellor of the University has been
empowered under Section 14(8) of the Maharashtra Universities Act,
1994 to issue an order thereby implementing the regulation issued by
the University Grants Commission which was duly adopted by the State
Government of Maharashtra, till such time, the statute giving effect to
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the regulation framed by the University Grants Commission dated 30
June 2010 was amended.
25. It is submitted that till such time the statute is amended, the
regulation framed by the University Grants Commission and adopted
by the State Government and followed by the Universities by issuing an
order under Section 14(8) of the Maharashtra Universities Act, 1994
through the Vice Chancellor was binding on the Universities, the
management and also the staff of the Colleges. He submits that the
regulation framed by the University Grants Commission and adopted by
the State Government and direction issued by the Vice Chancellor by
exercising powers under Section 14(8) of the Maharashtra Universities
Act, 1994 has a force of law governing the conditions of the service of
the petitioner in the respondent no.2-college and the same was binding
not only on the petitioner but also on the management.
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26. It is submitted by the learned counsel for the petitioner that
though the college tribunal has granted relief to the petitioner for
reinstatement to the said post on which the petitioner was appointed, the
said college tribunal has erroneously not allowed the claim for back
wages and has committed patent illegality by directing the management
to reinstate the petitioner on probation. It is submitted by the learned
counsel that since the period of probation was reduced from two years
to one year and since the management had not granted any extension
to the petitioner beyond the period of one year on the ground of
unsatisfactory performance, on expiry of period of one year from the date
of appointment of the petitioner, the petitioner had attained the status of
permanency and thus the said college tribunal could not have deprived
the petitioner of back wages. He submits that the services of the petitioner
were not terminated on the ground of reduction of work-load or abolition
of the post. The services of the petitioner were terminated by the
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management vide its order dated 21 August 2012 on the ground that
the performance of the petitioner was not satisfactory.
27. It is submitted by the learned counsel for the petitioner that
since the petitioner had already completed the probationary period of
one year and the management had not terminated the services of the
petitioner after expiry of one year on the ground that the performance of
the petitioner was not satisfactory, the petitioner had attained the status
of permanency and thus the services of the petitioner could not have
been terminated by the management without conducting any enquiry
required to be conducted under the statute governing the service
conditions of the petitioner.
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28. In his alternate submission, learned counsel for the petitioner
submits that the management is required to maintain the record regarding
the work of the petitioner and is required to submit an assessment report
through the Principal. He submits that the said college tribunal has
recorded the finding of fact that remarks in the assessment report were
written by the Principal and the President of the Management Committee
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on 30 June 2012 whereas, the notice of termination was issued on 20
July 2012 prior to the expiry period of probation. He submits that the
management had alleged before the said college tribunal that there were
complaints against the petitioner and the work of the petitioner was not
found satisfactory. He submits that the termination of services of the
petitioner were thus not a termination simplicitor but had cast a stigma
upon the petitioner. It was thus mandatory on the part of the management
to hold an enquiry as contemplated under the statute applicable to the
petitioner and the management.
29. Learned counsel for the petitioner placed reliance on the
following judgments of the Supreme Court and this Court :-
(i) T.P. George & Ors. Vs. State of Kerala & Ors., reported in
1992 Supp (3) SCC 191;
(ii) B.Bharat Kumar & Ors. Vs. Osmania University & Ors. and
other connected matters, reported in (2007) 11 SCC 58;
(iii) Beena Inamdar Vs.University of Pune & Ors., reported in
2012 (1) ALL MR 787 ;
(iv) Suresh Patilkhede Vs.Chancellor, University of Maharashtra
& Ors., reported in 2012 (6) ALL MR 336;
(v) P.Suseela & Ors. Vs. University Grants Commission & Ors.,
reported in (2015) 8 SCC 129;
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(vi) Unreported judgment of this Court in the case of Maharashtra
Federation of University & College Teachers Organizations Vs.
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The State of Maharashtra & Ors. delivered on 23 December
2015 in Writ Petition No.2081 of 2013 and other connected
matters.
30. Mr.Bandiwadekar, learned counsel for the management in
rejoinder placed reliance on the notification issued by the Government
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in the Gazette of India dated 18 September 2010 and more particularly
clause 7.4.0 thereof and also various provisions of the Maharashtra
Universities Act, 1994 and would submit that since there was no
amendment carried out to the provisions of the Maharashtra Universities
Act, 1994 or the statute issued by the Shivaji University for reducing the
period of probation from two years to one year, no reliance on the said
regulation framed by the University Grants Commission could be placed
and the same do not have any statutory force of law. He submits that the
college tribunal was right in holding that the Vice Chancellor could not
have invoked the provisions of Section 14 (8) of the Maharashtra
Universities Act, 1994 on the ground that the statute prescribing the
period of probation was already in place.
31. It is submitted that the Vice Chancellor had no occasion to
issue a letter which is purported to have been issued by exercising
powers under Section 14(8) of the Maharashtra Universities Act, 1994.
He also placed reliance on Section 52 of the Maharashtra Universities
Act, 1994 in support of his submission that unless the amendment is
carried out to the statute, the said regulation issued by the University
Grants Commission reducing the period of probation from two years to
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one year could not have been relied upon by the parties. Learned counsel
for the management distinguishes the judgment relied upon by the
learned counsel for the petitioner on the ground that in none of the
judgments relied upon by the petitioner, there was an issue of amendment
of the statute and thus would submit that none of the judgments would
assist the case of the petitioner.
32. It is submitted by the learned counsel for the management
that there are only 6 students in the First Year B.Com., 7 students in the
Second Year B.Com. and 6 students in the Third Year B.Com. There is no
work load sanctioned by the University and thus the college tribunal
could not have passed any order of reinstatement in favour of the
petitioner.
33. Learned counsel appearing for the respondent no.3-
University supported the case of the management and would submit that
since there was no amendment in the statute framed by the Shivaji
University for reducing the period of probation from two years to one
year and since the said statute was in force, the Vice Chancellor could
not have issued any letter purportedly under Section 14(8) of the
Maharashtra Universities Act, 1994. Upon a query raised by this Court,
learned counsel for the university states that the said letter issued by the
Vice Chancellor under Section 14(8) has not been withdrawn by the Vice
Chancellor or by the University or has not been challenged by the
university.
34. Mr.Gavnekar, learned counsel for the petitioner lastly
submitted that if upon the reinstatement of the petitioner, it is found that
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there is no work load sanctioned by the university and the petitioner
cannot be given any work in the respondent no.2 College, in that event,
the petitioner can be declared as surplus. As and when there is any
suitable vacancy on the said post in any other college, the petitioner
would be eligible for the appointment in the said suitable post.
REASONS AND CONCLUSIONS:-
35. Findings and Conclusions of the tribunal are summarised
as under :-
(a) After considering the guidelines framed by the University
Grants Commission adopted by the Vice-Chancellor as per the statute
198 and section 14(8) of the Maharashtra Universities Act, 1994 it is held
that the probation period will have to be accepted as two years and not
one year. When the notice of termination and the order of termination
were issued to the petitioner, the petitioner was not a confirmed teacher
and his services could not have been terminated on the ground of
unsatisfactory performance during the period of probation. Though there
was no mention about the period of probation in the letter of probation, in
the approval letter issued by the Solapur University, there was mention
that the approval was for appointment of probation. There was no
specific mention about the period of probation in the approval letter
issued by the Solapur University.
(b) The Principal of the College and the President of the
Management Committee had written remarks on the assessment reports
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on 30 June, 2012 whereas the notice of termination was dated 21 July,
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2012 and date of termination was 22 August, 2012. The reports were
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not placed before the management committee two months prior to the
expiry of the period of probation. The procedure prescribed for
termination of the services of the probation on the ground of
unsatisfactory performance was strictly not followed. The management
had contended that there was ample material to access the performance of
the petitioner which included the complaint, reports and other documents
which were filed on record to show that the petitioner was not obeying
the orders and had committed various acts showing that his performance
was not satisfactory.
(c) Though in the notice of termination it was only mentioned
that after period of termination was over, services of the petitioner shall
be terminated, in the order of termination it was mentioned that his
performance was unsatisfactory and there were complaints against him.
Such an order cannot be considered as an order of termination simplicitor
on the ground of unsatisfactory performance. If there were complaints,
then it was necessary to verify whether the complaints were true or not, it
was necessary to give an opportunity of hearing and to hold departmental
enquiry to find out whether there was any substance or truth in those
complaints. Since the said order was passed without following the
principles of natural justice, the same was liable to be set aside.
(d) The tribunal construed section 61 of he Maharashtra
Universities Act which provided for power of universities and colleges
tribunal to grant appropriate reliefs and held that the tribunal while
granting reliefs to an employee, can reinstate the employee on a post
which he was holding or to some lower post. It is held that since the
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petitioner was a probational and had not completed his probation period
satisfactorily as required under statute 198(1) of reinstatement, he will be
reinstated as a probational because notice of termination was already
issued before completion of the probation period.
(e) Since the notice of termination was already prior to the
completion of the probation period, it cannot be said that the petitioner
had completed the period of probation satisfactorily and thus he could not
be treated as confirmed employee. The petitioner was already informed
th
by the management by referring to Government Resolution dated 29
December, 1999 that the strength of students had fallen and minimum
required students in commerce faculty were not available, the grant-in-aid
was reduced and he would not be entitled to wages and thus it would be
difficult for the management to pay the back wages and thus the
petitioner would not be entitled to relief of continuity of services.
(f) From the statute 198, it was clear that the matter of probation
was governed by the statute and the statute was already in existence
providing for two years probation. Reliance is placed on section 14(8) of
Maharashtra Universities Act, 1994 which provides for the powers and
duties of the Vice-Chancellor of Universities in Maharashtra and it is held
that the powers under section 14(8) could be exercised only when no
statute was made. It is held that since in this case statute 198 was already
in existence which provided for two years period of probation, if the
period of probation was reduced to one year from two years as per UGC
Guidelines, then amendment in statute was required. It is held that only
because the UGC Guidelines were adopted by the Vice-Chancellor, it was
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difficult to say that without amendment in the statute, the probation
period would be reduced from two years to one year. It is held that in the
light of statute 198, probation period will have to be accepted as two
years and not one year.
36. The tribunal though had set aside the order of termination
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dated 21 August, 2012 w.e.f. 22 August 2012, directed the management
to reinstate the petitioner herein on probation. It is held that the petitioner
being not a confirmed employee, he would not be entitled to relief of
continuity in service. In the operative part of the order, the said tribunal
did not award any back wages to the petitioner. The petitioner as well as
the management being aggrieved by the part of the said order and
judgment delivered by the said tribunal have filed the aforesaid two
separate two writ petitions.
37. The questions that arise for consideration of this court are :-
(a) Whether the University Grants Commission (Minimum
Qualification for Appointment of Teachers and other Academic Staff in
Universities and Colleges and Other Measures for the Maintenance of
Standards in Higher Education) Regulation, 2010 issued by the
University Grants Commission which provided for a period of probation
of one year and extendable by a maximum period of 1 more year in case
of unsatisfactory performance, had any statutory force of law and was
binding on the colleges, the universities and teachers though there was no
amendment to the Maharashtra Universities Act, 1994 or to the statute
framed by the university ?
(b) Whether the probation period of the petitioner was two years or
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one year ?
(c) Whether the services of the petitioner were terminated for
unsatisfactory performance and if so, whether the management was
required to conduct an enquiry against the petitioner before terminating
his services of such grounds ?
(d) If the termination of the services of the petitioner is set aside by the
tribunal, whether the petitioner could be reinstated on probation by the
tribunal or ought to have been given reinstatement on the original post
with continuity of services and back wages ?
38. I shall first decide the question as to whether the regulation
issued by the University Grants Commission in the year 2010 prescribing
for various qualifications and providing for period of probation of one
year has any statutory force without any amendment to the provisions
of the Maharashtra Universities Act, 1994 or to the statutes framed by
the Shivaji University.
39. There is no dispute that under the statutes framed by the
Shivaji University, period of probation provided was two years. There is
no dispute that under the said regulation framed by the University Grants
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Commission on 30 June 2010, period of probation provided was one
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year. There is also no dispute that on 15 February 2011, State of
Maharashtra passed a resolution adopting the regulation framed by the
th
University Grants Commission. On 7 March 2011, the Vice Chancellor
of Solapur University issued a direction under Section 14(8) of the
Maharashtra Universities Act, 1994 incorporating the said decision of the
th th
State Government dated 18 September 2010 w.e.f. 30 June 2010.
40. It is not in dispute that the petitioner was appointed as an
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Assistant Professor of Commerce in the college run by the management
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on 23 June 2010 i.e. prior to the date of the issuance of the said
regulation by the University Grants Commission.
41. Division Bench of this Court in an unreported judgment in
the case of Maharashtra Federation of University & College Teachers
Organizations (supra) has dealt with this issue in great detail. Division
Bench of this Court has construed the provisions of Section 20 of the
University Grants Commission Act, 1956 (UGC Act) and after
considering the provisions of the UGC Act and also considering the total
scheme of the UGC Act and intention behind the same, has held that
the provisions of the University Statutes cannot be read in isolation
without reading qualification so prescribed by the University Grants
Commission which binds all concerned, including University, College
and Teachers. It is held that the University, the State Government,
therefore, are under obligation to follow and take note of qualifications
so declared by the University Grants Commission for appointments and
for grant of benefits so announced.
42. Division Bench of this Court has also adverted to the
judgment of the Supreme Court in P. Suseela & Ors. (supra) in which
the constitutional validity of the University Grants Commission
Regulations 2009 under which NET/SET qualification was held to be
the minimum eligibility condition for recruitment and appointments of
lecturers/teachers in University/Colleges/Institutions was upheld. In the
said judgment of the Supreme Court, it was declared that the Central
Government directions were prospective and would apply to the
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appointments made after those 2009 regulations and everybody needs
to follow those directions issued under Section 20 of the UGC Act.
43. Division Bench of this Court in the said judgment has also
considered the judgments of the Supreme Court in the cases of Kalyani
Mathivanan Vs. K.V.Jeyaraj & Ors., reported in (2015) 6 SCC 363 and
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State of Maharashtra & Ors. Vs. Asha Bidkar & Ors. decided on 25
March 2015 in Civil Appeal No.10759 of 2013. It is held by the
Division Bench that while dealing with the provisions of the Maharashtra
Universities Act, 1994, Sections 5(9), 5(60), 14(8) and the UGC Act,
Sections 12(d), 14, 26(1)(e), it is noted that the qualification prescribed
by the UGG, though not provided in the State University Act or the
Statute, the University is not absolved from abiding by the qualifications
prescribed by the UGC. It is held that the same was in the background
that all the Universities are affiliated to the UGC specifically for the
grant and related benefits. It is held that upon referring to various
Supreme Court judgments, it is concluded that all the Universities or
the Colleges affiliated to such Universities are bound by UGC
Regulations issued by the UGC and non-compliance, if any, can be
excused by relaxation only by the UGC, if a case is made out and not as
of right.
44. In my view, the principles of law laid down by the Division
Bench of this Court after adverting to various judgments of the Supreme
Court holding that the regulation framed by the University Grants
Commission are binding upon all the Universities, teachers and Colleges
affiliated to such universities squarely apply to the facts of this case.
There is no dispute that period of probation provided in the said
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regulation of 2010 by the University Grants Commission is for one
year. I am respectfully bound by the judgment of the Division Bench of
this Court in the case of Maharashtra Federation of University &
College Teachers Organizations (supra) .
45. It is not in dispute that the period of one year probation was
not extended for another period of one year by the University on the
ground of unsatisfactory performance. It is also not in dispute that the
services of the petitioner were not terminated by the management before
expiry of one year. In my view, even if an amendment was not brought
in the provisions of the Maharashtra Universities Act, 1994 or in the
statute framed by the Shivaji University thereby reducing the period of
probation from two years to one year, the University as well as the
management cannot be allowed to raise a plea that in absence of any
such amendment to the statute or to the provisions of the Maharashtra
Universities Act, 1994, the management or the University is not bound
by such regulation issued by the University Grants Commission. In my
view, till amendment to the provisions of the Maharashtra Universities
Act, 1994 or to the provisions of the statutes framed by the Shivaji
University so as to reduce the period of probation from two years to
one year is carried out, the University as well as the Colleges affiliated
to the University Grants Commission is bound by such regulation issued
by the University Grants Commission which has statutory force of law,
till such time an amendment is brought to the University Act or Statute.
46. In my view, the said tribunal had committed an error in
the impugned judgment by holding that without amendment in the statute,
probation period could not be reduced from two years to one year or that
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the Vice Chancellor of the Solapur University could not have issued
any order under Section 14(8) of the Maharashtra Universities Act, 1994
without amendment in the statute framed by the Shivaji University. In
my view, the said tribunal thus could not have held that the period of
probation was not reduced from two years to one year as per the
regulation issued by the University Grants Commission and thus the
petitioner had not attained status of a permanent Assistant Professor on
completion of a period of one year from the date of his appointment.
47. Though the said tribunal had taken a view that in the letter
of appointment issued to the petitioner, it was not provided that the
appointment of the petitioner was on probation, approval granted by the
University clearly indicated that the appointment of the petitioner was
on probation, the said tribunal in my view erroneously held that the
petitioner did not become permanent upon expiry of a period of probation
of one year and continued to be on probation for two years. In my view,
the finding of the said tribunal that the period of probation was not
reduced from two years to one year is contrary to the law laid down by
this Court in the case of Maharashtra Federation of University &
College Teachers Organizations (supra) and deserves to be set aside
on that ground itself.
48. In my view, there is thus no merit in the submission of the
learned counsel for the management that the said regulation issued by
the University Grants Commission in the year 2010 which prescribed for
a period of probation as one year had no statutory force of law for want
of appropriate amendment in the provisions of the Maharashtra
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Universities Act, 1994 or in the statutes framed by the Shivaji University.
49. Division Bench of this Court in the case of Beena Inamdar
Vs. University of Pune & Ors.(supra) has held that neither the University
established or incorporated by a Central Act, a Provincial Act or a State
Act nor the Colleges affiliated to such Universities can disregard the
UGC Regulations. It is held that mere fact that the qualifications
prescribed by the University Grants Commission are not provided in the
State Universities Act or in the Statutes and the Regulations framed
thereunder would not absolve the university from abiding by the
qualifications so prescribed by the University Grants Commission and
failure to abide it would run the risk of denial of the grants by the
University Grants Commission. In my view, judgment of the Division
Bench of this Court in the case of Beena Inamdar (supra) applies to the
facts of this case. I am respectfully bound by the said judgment.
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50. A perusal of the order dated 7 March 2011 passed by the
Vice Chancellor on behalf of the Solapur University under Section 14(8)
of the Maharashtra Universities Act, 1994 clearly indicates that the said
order/directive is issued by the Vice Chancellor based on the resolution
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dated 15 February 2011 passed by the Government of Maharashtra
adopting and implementing the said regulation issued by the University
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Grants Commission w.e.f. 30 June 2010. In the said order/directive
issued by the Vice Chancellor of the Solapur University, it is made clear
that the said directive shall be operative until the amended statues or
directives are assented by the Chancellor and Governor of Maharashtra.
It is not in dispute that the Solapur University has not withdrawn the
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said order/directive issued by the Vice Chancellor of the Solapur
University under Section 14(8) of the Maharashtra Universities Act,
1994 till date which is in conformity with the resolution passed by the
th
Government of Maharashtra dated 15 February 2011 adopting and
implementing the University Grants Commission Regulations of 2010
issued by the University Grants Commission which is in force.
51. In my view, since the period of probation was for one year
under the said regulation issued by the University Grants Commission,
the petitioner had attained status of a permanent Assistant Professor on
the date of expiry of one year from the date of his appointment and thus
the services of the petitioner could not be terminated on the ground of
alleged unsatisfactory performance without conducting an enquiry into
those allegations/complaints against the petitioner alleging unsatisfactory
performance. In my view, the direction issued by the said tribunal that
the petitioner shall be reinstated on probation is ex facie perverse and
contrary to the law laid down by the Supreme Court in the case of P.
Suseela & Ors. (supra) and the judgments of the Division Bench of this
Court in the cases of Maharashtra Federation of University & College
Teachers Organizations (supra) and Beena Inamdar (supra) and thus
deserves to be set aside.
52. In so far as the view taken by the said tribunal that there
were various complaints alleged to have been received by the
management against the petitioner during the period of probation and the
services of the petitioner were terminated on the ground of unsatisfactory
performance during the period of probation and thus his services could
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not have been terminated without conducting any enquiry is concerned,
no infirmity with the said part of the order can be found. In my view,
there is no merit in the submission of the learned counsel for the
management that the order of termination issued against the petitioner did
not cast any stigma and thus his services could be terminated without
conducting any enquiry during the period of probation. In my view, since
the petitioner had attained the status of a permanent Assistant Professor
upon completion of the period of probation of one year, his services
could not have been terminated by the management without conducting
an inquiry in view of the complaints alleged to have been received by the
management against the petitioner which were referred in the order of
termination. This part of the impugned order passed by the said tribunal
is thus upheld.
53. In so far as the submission of the learned counsel for the
management that there were few students in the the First Year B.Com.,
Second Year B.Com. and Third Year B.Com. and there were no work-
load sanctioned by the University, and thus no order of reinstatement
could have been passed by the said tribunal is concerned, a perusal of
the record indicates that the services of the petitioner were not terminated
on the ground that there was no work-load sanctioned by the university
in so far the said post on which the petitioner was appointed as an
Assistant Professor the college run by the management is concerned. In
my view, the said tribunal has thus rightly granted the relief in favour of
the petitioner for reinstatement of the petitioner in the college run by
the management.
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54. In my view, since the termination of the services of the
petitioner by the management was illegal, the tribunal ought to have
granted relief of continuity of service with back wages in favour of the
petitioner. Be that as it may, if it is ultimately found that the work-load
is not sanctioned by the university in so far as that post is concerned, the
university and college can declare the petitioner as surplus and his
appointment then can be dealt with in accordance with the provisions of
the Maharashtra Universities Act, 1994. In that situation, if there is any
suitable vacancy on the said post in any other college affiliated to the
Solapur University, the petitioner would be eligible to the appointment
on the said suitable post. In my view, learned counsel is right in his
submission that the university and college tribunal though held that the
termination of the services of the petitioner were illegal, the tribunal
had illegally rejected the relief for back wages and continuity of service.
55. I therefore pass the following order :-
(a) Writ Petition No.11074 of 2015 is dismissed. Rule is discharged. No
order as to costs;
(b) Writ Petition No.10207 of 2015 is allowed in terms of prayer
clause (a). The management is directed to reinstate the petitioner in
the post of full-time Assistant Professor in the subject Commerce in
the respondent no.2 college with continuity of service and other
benefits. It is made clear that if the work-load is not available in the
respondent no.2 college in respect of the said post for the petitioner,
the petitioner shall be declared as surplus and shall be appointed on a
suitable post in any other college as may be recommended by the
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university with the same benefits. Rule is made absolute in aforesaid
terms. No order as to costs.
R.D. DHANUKA, J.
. At this stage, Mr.Bandiwadekar, learned counsel appearing
for the management applies for stay of operation of the order allowing
the Writ Petition No.10207 of 2015 and submits that during the period of
stay, the management would not appoint any other person to the said
post of Assistant Professor in the subject Commerce. Statement is
accepted.
. Operation of this order allowing the Writ Petition No.10207
of 2015 is stayed for a period of eight weeks from today. It is made clear
that during this period of stay, without prejudice to the rights and
contentions of the management, the management would be at liberty to
apply to the University and the Government to declare the petitioner as
surplus. If any such proposal is made by the management, the said
proposal can be decided by the University as well as the Government
independently.
R.D. DHANUKA, J.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11074 OF 2015
1. Madha Taluka Shikshan Prasarak Mandal )
Kurduwadi, Tal Madha, )
Dist.Solapur, 413 208 )
Through its President )
2. K.N. Bhise Arts & Commerce College )
Kurduwadi, Tal Madha, )
Dist.Solapur, 413 208 )
Through its Principal ) .. Petitioners
VERSUS
1. Prashant Kamlakar Narkhade )
Residing at Post Gulpoli, )
Tal. Barshi, District Solapur. )
2. Solapur University )
Solapur-Pune National Highway, )
Kegaon, Solapur 413 255 )
Through its Director, Board of College )
& University Development. )
3. Regional Joint Director )
Higher Education, Solapur Region, )
Solapur. ) .. Respondents
---
Mr.N.V. Bandiwadekar i/by Mr.Mandar G.Bagkar for the petitioner.
Mr.C.G. Gavnekar i/by Mr.Suhas S.Deokar for the respondent no.1.
Mr.S.D.Thokade for the respondent no.2.
Mr.A.R. Metkari, AGP for the respondent no.3-State.
---
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ALONGWITH
WRIT PETITION NO.10207 OF 2015
Prashant Kamlakar Narkhade )
Age 33 yrs. Occupation Teacher, )
Residing at Post Gulpoli, )
Tal. Barshi, District Solapur. ) .. Petitioner
VERSUS
1. Madha Taluka Shikshan Prasarak Mandal )
Kurduwadi, Taluka Madha, )
Dist.Solapur, 413 208 )
Through its President )
2. K.N. Bhise Arts & Commerce College )
Kurduwadi, Tal Madha, )
Dist.Solapur, 413 208 )
Through its Principal )
3. Solapur University through its Director )
Board of College &University Development)
Solapur-Pune National Highway, )
Kegaon, Solapur 413 255 )
4. Regional Joint Director )
Higher Education, Solapur Region, )
Solapur. )
5. Hon'ble Presiding Officer )
Savitribai Phule Pune, Shivaji & Solapur )
University & College Tribunal Pune, )
University Campus, Pune - 07. ) .. Respondents
---
Mr.C.G. Gavnekar i/by Mr.Suhas S.Deokar for the petitioner.
Mr.N.V. Bandiwadekar i/by Mr.Mandar.G.Bagkar for the respondent
nos.1 & 2.
Mr.S.D.Thokade for the respondent no.3.
Mr.A.R. Metkari, AGP for the respondent no.4-State.
---
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CORAM : R.D. DHANUKA, J.
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RESERVED ON : 18 July 2016
rd
PRONOUNCED ON : 3 August 2016
Judgment :-
. Rule, Respondents waive service. Heard finally.
2. By these two petitions filed under Articles 226 and 227 of
the Constitution of India, both the petitioners have challenged part of the
rd
impugned order and judgment dated 23 September, 2015 passed by the
Presiding Officer, Savitribai Phule Pune, Shivaji and Solapur University
and College Tribunal, Pune (for short the said Tribunal) in Appeal No.17
of 2012. By consent of parties, both the writ petitions were heard together
and are being disposed of by a common order and judgment.
3. The petitioner in Writ Petition No.10207 of 2015 was
appellant before the tribunal whereas the petitioners in Writ Petition
No.11074 of 2015 were the original respondent nos. 1 and 2 in the appeal
filed by the petitioner in Writ Petition No.10207 of 2015. By the said
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order and judgment dated 23 September, 2015, the said Tribunal has
allowed the appeal filed by the original appellant partly and had set aside
st nd
the order of termination dated 21 August, 2012 w.e.f. 22 August, 2012
issued by the management and directing the management to reinstate the
original appellant on probation. The petitioner in Writ Petition No.11074
of 2015 has challenged the order passed by the said tribunal insofar as the
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order of termination dated 21 August, 2012 passed by the management
has been set aside. The petitioner in Writ Petition No.10207 of 2015 has
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impugned the part of the said order and judgment dated 23 September,
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2015 insofar as the tribunal has directed the management to reinstate him
on probation. Some of the relevant facts for the purpose of deciding both
these petitions are as under :-
4. For the sake of convenience, the petitioner in Writ Petition
No.10207 of 2015 (original appellant) is described as the petitioner and
the petitioners in Writ Petition No.11074 of 2015 are described as the
management in the later part of the judgment.
th
5. On or about 13 May, 2010, the management issued an
advertisement to fill up the post of full time assistant professor of
Commerce in college run by the management. The petitioner was
qualified holding M.Com. degree and NET and also having passed NET.
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6. On 23 June, 2010, the University selected the petitioner for
the said post after holding interview of the candidates including the
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petitioner. On 30 June, 2010 the University Grants Commission issued
a Regulation known as University Grants Commission (Minimum
Qualification for Appointment of Teachers and other Academic Staff in
Universities and Colleges and Other Measures for the Maintenance of
Standards in Higher Education) Regulation, 2010 which provided for a
period of probation of 1 year extendable by a maximum period of 1 more
year in case of unsatisfactory performance. In the said regulation, it was
provided that the confirmation at the end of one year was to be automatic
unless extended by specific order before the expiry of one year. It was
however made incumbent on the part of the institutions to issue order of
confirmation within 45 days of completion of probationary period.
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7. On 21 August, 2010 the management issued an appointment
order to the petitioner in which it was mentioned that his appointment
was for one academic year. It is the case of the petitioner that the
petitioner was however continued in the said post after one year also. On
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29 July 2010 the Solapur University informed the Principal of
respondent no.2 that the petitioner was selected on an open post as full
time assistant professor in Commerce on probation.
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8. On 15 February, 2011 the State of Maharashtra passed a
resolution adopting the regulation issued by Universities Grants
th
Commission with effect from 30 June, 2010. It is the case of the
th
petitioner that on 7 March, 2011 the Vice-Chancellor of Solapur
University issued a direction under section 14(8) of Maharashtra
Universities Act, 1994 accepting the said decision of the State
th
Government dated 15 February, 2011.
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9. On 20 July, 2012 the management issued a notice to the
nd
petitioner informing that his probation period was expiring on 22
nd
August, 2012 and he would be liable to be terminated on 22 August,
2012. The respondent no.1 terminated the services of the respondent no.1
nd
w.e.f. 22 August, 2012. Being aggrieved by the said order of termination
nd
dated 22 August, 2012, the petitioner filed an appeal before the said
tribunal at Pune bearing No.17 of 2012 (SO) along with an application
for interim reliefs. The said appeal filed by the petitioner was resisted by
the management by filing reply before the said tribunal. The petitioner
filed a counter affidavit to the said reply filed by the management
alongwith the documents including the attendance sheets and the letter
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dated 26 March, 2013 issued by the Solapur University. The Solapur
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University also filed an affidavit on 10 August, 2015 before the said
tribunal.
rd
10. On 23 September, 2015, the said tribunal partly allowed the
said appeal filed by the petitioner and has set aside the order of
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termination dated 21 August 2012 by directing the management to
reinstate the petitioner on probation. This order and judgment of the said
tribunal has been impugned by the said petitioner and also by the
management by filing the aforesaid two writ petitions.
11. Mr.Bandiwadekar, learned counsel appearing for the
management submits that the petitioner was appointed by the
management purely on temporary basis. He placed reliance on the order
of appointment issued by the management and would submit that the said
order of appointment did not state that the said appointment was made on
probation. He submits that the appointment of the petitioner was for one
academic year which order of appointment was accepted by the petitioner
without any demur or complaint. He submits that the appointment of the
petitioner was on temporary basis and not on probation at all. It is
submitted that the petitioner thus did not have any right to hold the said
post and the service of the petitioner could be thus terminated by the
management after expiry of the said period of one academic year based
on the terms and conditions of the said order of appointment. It is
submitted by the learned counsel that the management had found that the
work of the petitioner was unsatisfactory and thus the management was
right in terminating the services of the petitioner on that ground. He
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submits that the tribunal thus ought to have dismissed the appeal filed by
the petitioner in toto.
12. Without prejudice to the aforesaid submissions, it is
submitted by the learned counsel for the management that even if the
appointment of the petitioner was to be considered as an appointment on
probation, according to the statutes framed by the respondent no.2
University, the probation period of the petitioner was for two years. The
petitioner had admittedly not completed the said period of two years and
thus he could not have claimed the permanency. He submits that since
the work and conduct of the petitioner during the said probation period
was not at all satisfactory, the management had rightly decided not to
continue the services of the petitioner beyond the period of probation and
not to confirm him in service. He submits that the management had
th
accordingly passed a resolution on 16 August, 2012 which was followed
th
by a notice of termination dated 20 July, 2012. Learned Counsel invited
th
my attention to the said notice dated 20 July, 2012 and would submit
that it was clearly stated in the said notice that the work of the petitioner
during the period of probation was not satisfactory and his services were
th
terminated. He submits that the said termination by the notice dated 20
July, 2012 was a termination simplicitor without any stigma which is
permissible in law. He submits that the order of termination issued by the
management thus could not be considered as a punitive action on the part
of the management.
13. It is submitted by the learned counsel that the said tribunal
could not have rendered a finding that the services of the petitioner were
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terminated on account of the complaint against him which amounted to
the penalty being imposed without holding any enquiry. He submits that
the management was not required to conduct any enquiry against the
petitioner in view of the petitioner having been appointed on temporary
basis and even if was considered to have been appointed on probation, the
services of the probation could be terminated if his work was found
unsatisfactory during the period of probation. He submits that the
services of the petitioner thus could be terminated by giving one month
notice without conducting any enquiry which notice was admittedly
issued by the management to the petitioner.
14. It is submitted by the learned counsel for the management
that the management had not terminated the services of the petitioner due
to any complaint received by the management against the petitioner. No
such complaints were thus referred by the management in the resolution
th
passed by it or in the notice of termination issued on 20 July, 2012 and
thus the order of termination could not have been considered by the said
tribunal as punitive termination which would have required an enquiry
before issuing any such order of termination.
15. It is submitted by the learned counsel for the management
that the tribunal even otherwise could not have directed the reinstatement
of the petitioner to the said post in view of the fact that the said post on
which the petitioner was appointed was no longer in existence in the
college run by the management for want of sufficient students. The
university had already declined to sanction full time post not only in
respect of the said subject but also in respect of the other subjects. He
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submits that not a single post is sanctioned by the university in the
college on a full time basis. The management is required to appoint the
teachers on the clock hour basis. He submits that the department has also
declined to sanction the grant in aid for old teaching post in the
commerce faculty in respondent no.2 college including for the post of
assistant professor in commerce which was occupied by the petitioner. In
support of this submission, the learned counsel for the petitioner invited
my attention to section 61 and more particularly section 61(e) of the
Maharashtra University Act and would submit that if this court comes to
the conclusion that there is no post available on which the petitioner was
originally appointed in view of there being no students in the said
commerce faculty, the said tribunal could not have ordered reinstatement
in favour of the petitioner and at the most could have ordered some
compensation in his favour.
16. Learned counsel for the management also placed reliance on
the provisions of section 51(8) and section 52 and would submit that
since there was no amendment in the statute framed by the University, no
reliance on the said regulation framed by the University Grants
Commission or on the directions issued by the Vice-Chancellor could be
placed by the petitioner.
17. It is submitted by the learned counsel for the management
th
that the management had not issued any show cause notice on 20 July,
st
2012 as held by the said tribunal. He submits that on 21 August, 2012
the services of the petitioner had already come to an end by efflux of time
and thus the said so-called letter of termination could not have been
considered as an order of termination at all.
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18. Learned counsel for the management invited my attention to
clause 7.4.0 of the notification issued by the Government in the Gazette
th
of India dated 18 September 2010 which provides that the Universities/
State Governments shall modify or amend the relevant Act/Statutes of
the Universities concerned within six months of adoption of these
regulations. He submits that since the Solapur University has not
amended the statute so as to reduce the period of probation from two
years to one year, the said regulation issued by the University Grants
Commission reducing the period of probation from two years to one
year could not be implemented by the Solapur University and/or no
reliance thereon could be placed by the petitioner.
19. Learned counsel for the petitioner, on the other hand, invited
my attention to various annexures to the writ petition filed by the
petitioner and would submit that the petitioner was appointed on
st
probation by the College vide letter dated 21 August 2010. The
appointment of the petitioner was subject to the final approval by the
Solapur University, Solapur. He also placed reliance on the approval
th
granted by the Solapur University on 29 July 2010 to the appointment
of the three Assistant Professors including the petitioner on probation
as full-time Assistant Professors. My attention is also invited to the
th
letter dated 7 June 2011 issued by the Solapur University addressed to
the management relating to “changes-in-staff approval letter.” He
submits that name of the petitioner was mentioned in the said letter,
giving the date of his appointment as an Assistant Professor in the
subject 'Commerce' and stating that he was appointed on probation.
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20. It is submitted by the learned counsel for the petitioner that
the said tribunal has misread the statute no.198 framed by the Shivaji
University which provides for the period of probation of 24 months from
the date on which the teacher joins his duty. He submits that the said
statute provides that the governing body shall assess the suitability of
the teachers before the expiry of period of the probation. It is submitted
by the learned counsel that the University Grants Commission had
th
admittedly issued a regulation referred to aforesaid on 30 June 2010
which provided that the minimum period of probation shall be one year
and extendable by a maximum period of one more year in case of
unsatisfactory performance. He submits that at the end of one year, the
petitioner had attained the status of a permanent employee. It was
incumbent on the management to issue an order of confirmation within
45 days of completion of probationary period. He submits that period of
one year of probation was not extended by the management.
21. It is submitted that the said regulation framed by the
University Grants Commission was wholly adopted by the State
th
Government by its decision dated 15 February 2011. My attention is
th
invited to the order dated 7 March 2011 issued by the Vice Chancellor
of Solapur University by exercising powers under Section 14(8) of the
Maharashtra Universities Act, 1994 thereby reducing the period of
probation from two years to one year. He submits that the order issued
by the Vice Chancellor was issued by exercising powers under Section
14(8) of the Maharashtra Universities Act, 1994 and the same was in
conformity with the decision taken by the State Government by
adopting the regulation framed by the University Grants Commission.
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22. It is submitted that till such time an amendment to the
statute was carried out by the Shivaji University, the said regulation
framed by the University Grants Commission duly adopted by the State
th
Government and followed by an order dated 7 March 2011 issued by
the Vice Chancellor under Section 14(8) of the Maharashtra Universities
Act, 1994 reducing the period of probation from two years to one year
was binding on the Universities, the employees and staff of the Colleges
affiliated to such Universities and also the colleges affiliated to university.
It is submitted that admittedly the petitioner was already appointed as an
Assistant Professor prior to the said regulation framed by the University
th
Grants Commission on 30 June 2010 coming into force and thus the
petitioner was governed by the said regulation framed by the University
Grants Commission reducing the period of probation from two years to
one year.
23. It is submitted by the learned counsel for the petitioner that
merely because the period of probation was not mentioned in the
st
appointment order issued by the management on 21 August 2010, the
management could not raise a plea that the period of 24 months would
be probationary period contrary to the regulation framed by the
University Grants Commission which was duly adopted by the State
Government and also by the Solapur University. He submits that the
fact remains that the appointment of the petitioner was subject to the
approval granted by the University. In the order of approval issued by
the University, the petitioner was admittedly granted approval on
probation.
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24. It is submitted by the learned counsel for the petitioner that
the said tribunal has misread the provisions of Section 52(1) of the
Maharashtra Universities Act, 1994 by holding that the statute no.198
which provides for probation period of 24 months was not amended
and thus the period of probation of two years could not have been
considered as one year without bringing out any amendment to the
statute. He submits that the Vice Chancellor of the University has been
empowered under Section 14(8) of the Maharashtra Universities Act,
1994 to issue an order thereby implementing the regulation issued by
the University Grants Commission which was duly adopted by the State
Government of Maharashtra, till such time, the statute giving effect to
th
the regulation framed by the University Grants Commission dated 30
June 2010 was amended.
25. It is submitted that till such time the statute is amended, the
regulation framed by the University Grants Commission and adopted
by the State Government and followed by the Universities by issuing an
order under Section 14(8) of the Maharashtra Universities Act, 1994
through the Vice Chancellor was binding on the Universities, the
management and also the staff of the Colleges. He submits that the
regulation framed by the University Grants Commission and adopted by
the State Government and direction issued by the Vice Chancellor by
exercising powers under Section 14(8) of the Maharashtra Universities
Act, 1994 has a force of law governing the conditions of the service of
the petitioner in the respondent no.2-college and the same was binding
not only on the petitioner but also on the management.
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26. It is submitted by the learned counsel for the petitioner that
though the college tribunal has granted relief to the petitioner for
reinstatement to the said post on which the petitioner was appointed, the
said college tribunal has erroneously not allowed the claim for back
wages and has committed patent illegality by directing the management
to reinstate the petitioner on probation. It is submitted by the learned
counsel that since the period of probation was reduced from two years
to one year and since the management had not granted any extension
to the petitioner beyond the period of one year on the ground of
unsatisfactory performance, on expiry of period of one year from the date
of appointment of the petitioner, the petitioner had attained the status of
permanency and thus the said college tribunal could not have deprived
the petitioner of back wages. He submits that the services of the petitioner
were not terminated on the ground of reduction of work-load or abolition
of the post. The services of the petitioner were terminated by the
st
management vide its order dated 21 August 2012 on the ground that
the performance of the petitioner was not satisfactory.
27. It is submitted by the learned counsel for the petitioner that
since the petitioner had already completed the probationary period of
one year and the management had not terminated the services of the
petitioner after expiry of one year on the ground that the performance of
the petitioner was not satisfactory, the petitioner had attained the status
of permanency and thus the services of the petitioner could not have
been terminated by the management without conducting any enquiry
required to be conducted under the statute governing the service
conditions of the petitioner.
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28. In his alternate submission, learned counsel for the petitioner
submits that the management is required to maintain the record regarding
the work of the petitioner and is required to submit an assessment report
through the Principal. He submits that the said college tribunal has
recorded the finding of fact that remarks in the assessment report were
written by the Principal and the President of the Management Committee
th th
on 30 June 2012 whereas, the notice of termination was issued on 20
July 2012 prior to the expiry period of probation. He submits that the
management had alleged before the said college tribunal that there were
complaints against the petitioner and the work of the petitioner was not
found satisfactory. He submits that the termination of services of the
petitioner were thus not a termination simplicitor but had cast a stigma
upon the petitioner. It was thus mandatory on the part of the management
to hold an enquiry as contemplated under the statute applicable to the
petitioner and the management.
29. Learned counsel for the petitioner placed reliance on the
following judgments of the Supreme Court and this Court :-
(i) T.P. George & Ors. Vs. State of Kerala & Ors., reported in
1992 Supp (3) SCC 191;
(ii) B.Bharat Kumar & Ors. Vs. Osmania University & Ors. and
other connected matters, reported in (2007) 11 SCC 58;
(iii) Beena Inamdar Vs.University of Pune & Ors., reported in
2012 (1) ALL MR 787 ;
(iv) Suresh Patilkhede Vs.Chancellor, University of Maharashtra
& Ors., reported in 2012 (6) ALL MR 336;
(v) P.Suseela & Ors. Vs. University Grants Commission & Ors.,
reported in (2015) 8 SCC 129;
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(vi) Unreported judgment of this Court in the case of Maharashtra
Federation of University & College Teachers Organizations Vs.
rd
The State of Maharashtra & Ors. delivered on 23 December
2015 in Writ Petition No.2081 of 2013 and other connected
matters.
30. Mr.Bandiwadekar, learned counsel for the management in
rejoinder placed reliance on the notification issued by the Government
th
in the Gazette of India dated 18 September 2010 and more particularly
clause 7.4.0 thereof and also various provisions of the Maharashtra
Universities Act, 1994 and would submit that since there was no
amendment carried out to the provisions of the Maharashtra Universities
Act, 1994 or the statute issued by the Shivaji University for reducing the
period of probation from two years to one year, no reliance on the said
regulation framed by the University Grants Commission could be placed
and the same do not have any statutory force of law. He submits that the
college tribunal was right in holding that the Vice Chancellor could not
have invoked the provisions of Section 14 (8) of the Maharashtra
Universities Act, 1994 on the ground that the statute prescribing the
period of probation was already in place.
31. It is submitted that the Vice Chancellor had no occasion to
issue a letter which is purported to have been issued by exercising
powers under Section 14(8) of the Maharashtra Universities Act, 1994.
He also placed reliance on Section 52 of the Maharashtra Universities
Act, 1994 in support of his submission that unless the amendment is
carried out to the statute, the said regulation issued by the University
Grants Commission reducing the period of probation from two years to
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one year could not have been relied upon by the parties. Learned counsel
for the management distinguishes the judgment relied upon by the
learned counsel for the petitioner on the ground that in none of the
judgments relied upon by the petitioner, there was an issue of amendment
of the statute and thus would submit that none of the judgments would
assist the case of the petitioner.
32. It is submitted by the learned counsel for the management
that there are only 6 students in the First Year B.Com., 7 students in the
Second Year B.Com. and 6 students in the Third Year B.Com. There is no
work load sanctioned by the University and thus the college tribunal
could not have passed any order of reinstatement in favour of the
petitioner.
33. Learned counsel appearing for the respondent no.3-
University supported the case of the management and would submit that
since there was no amendment in the statute framed by the Shivaji
University for reducing the period of probation from two years to one
year and since the said statute was in force, the Vice Chancellor could
not have issued any letter purportedly under Section 14(8) of the
Maharashtra Universities Act, 1994. Upon a query raised by this Court,
learned counsel for the university states that the said letter issued by the
Vice Chancellor under Section 14(8) has not been withdrawn by the Vice
Chancellor or by the University or has not been challenged by the
university.
34. Mr.Gavnekar, learned counsel for the petitioner lastly
submitted that if upon the reinstatement of the petitioner, it is found that
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there is no work load sanctioned by the university and the petitioner
cannot be given any work in the respondent no.2 College, in that event,
the petitioner can be declared as surplus. As and when there is any
suitable vacancy on the said post in any other college, the petitioner
would be eligible for the appointment in the said suitable post.
REASONS AND CONCLUSIONS:-
35. Findings and Conclusions of the tribunal are summarised
as under :-
(a) After considering the guidelines framed by the University
Grants Commission adopted by the Vice-Chancellor as per the statute
198 and section 14(8) of the Maharashtra Universities Act, 1994 it is held
that the probation period will have to be accepted as two years and not
one year. When the notice of termination and the order of termination
were issued to the petitioner, the petitioner was not a confirmed teacher
and his services could not have been terminated on the ground of
unsatisfactory performance during the period of probation. Though there
was no mention about the period of probation in the letter of probation, in
the approval letter issued by the Solapur University, there was mention
that the approval was for appointment of probation. There was no
specific mention about the period of probation in the approval letter
issued by the Solapur University.
(b) The Principal of the College and the President of the
Management Committee had written remarks on the assessment reports
th st
on 30 June, 2012 whereas the notice of termination was dated 21 July,
nd
2012 and date of termination was 22 August, 2012. The reports were
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not placed before the management committee two months prior to the
expiry of the period of probation. The procedure prescribed for
termination of the services of the probation on the ground of
unsatisfactory performance was strictly not followed. The management
had contended that there was ample material to access the performance of
the petitioner which included the complaint, reports and other documents
which were filed on record to show that the petitioner was not obeying
the orders and had committed various acts showing that his performance
was not satisfactory.
(c) Though in the notice of termination it was only mentioned
that after period of termination was over, services of the petitioner shall
be terminated, in the order of termination it was mentioned that his
performance was unsatisfactory and there were complaints against him.
Such an order cannot be considered as an order of termination simplicitor
on the ground of unsatisfactory performance. If there were complaints,
then it was necessary to verify whether the complaints were true or not, it
was necessary to give an opportunity of hearing and to hold departmental
enquiry to find out whether there was any substance or truth in those
complaints. Since the said order was passed without following the
principles of natural justice, the same was liable to be set aside.
(d) The tribunal construed section 61 of he Maharashtra
Universities Act which provided for power of universities and colleges
tribunal to grant appropriate reliefs and held that the tribunal while
granting reliefs to an employee, can reinstate the employee on a post
which he was holding or to some lower post. It is held that since the
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petitioner was a probational and had not completed his probation period
satisfactorily as required under statute 198(1) of reinstatement, he will be
reinstated as a probational because notice of termination was already
issued before completion of the probation period.
(e) Since the notice of termination was already prior to the
completion of the probation period, it cannot be said that the petitioner
had completed the period of probation satisfactorily and thus he could not
be treated as confirmed employee. The petitioner was already informed
th
by the management by referring to Government Resolution dated 29
December, 1999 that the strength of students had fallen and minimum
required students in commerce faculty were not available, the grant-in-aid
was reduced and he would not be entitled to wages and thus it would be
difficult for the management to pay the back wages and thus the
petitioner would not be entitled to relief of continuity of services.
(f) From the statute 198, it was clear that the matter of probation
was governed by the statute and the statute was already in existence
providing for two years probation. Reliance is placed on section 14(8) of
Maharashtra Universities Act, 1994 which provides for the powers and
duties of the Vice-Chancellor of Universities in Maharashtra and it is held
that the powers under section 14(8) could be exercised only when no
statute was made. It is held that since in this case statute 198 was already
in existence which provided for two years period of probation, if the
period of probation was reduced to one year from two years as per UGC
Guidelines, then amendment in statute was required. It is held that only
because the UGC Guidelines were adopted by the Vice-Chancellor, it was
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difficult to say that without amendment in the statute, the probation
period would be reduced from two years to one year. It is held that in the
light of statute 198, probation period will have to be accepted as two
years and not one year.
36. The tribunal though had set aside the order of termination
st nd
dated 21 August, 2012 w.e.f. 22 August 2012, directed the management
to reinstate the petitioner herein on probation. It is held that the petitioner
being not a confirmed employee, he would not be entitled to relief of
continuity in service. In the operative part of the order, the said tribunal
did not award any back wages to the petitioner. The petitioner as well as
the management being aggrieved by the part of the said order and
judgment delivered by the said tribunal have filed the aforesaid two
separate two writ petitions.
37. The questions that arise for consideration of this court are :-
(a) Whether the University Grants Commission (Minimum
Qualification for Appointment of Teachers and other Academic Staff in
Universities and Colleges and Other Measures for the Maintenance of
Standards in Higher Education) Regulation, 2010 issued by the
University Grants Commission which provided for a period of probation
of one year and extendable by a maximum period of 1 more year in case
of unsatisfactory performance, had any statutory force of law and was
binding on the colleges, the universities and teachers though there was no
amendment to the Maharashtra Universities Act, 1994 or to the statute
framed by the university ?
(b) Whether the probation period of the petitioner was two years or
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one year ?
(c) Whether the services of the petitioner were terminated for
unsatisfactory performance and if so, whether the management was
required to conduct an enquiry against the petitioner before terminating
his services of such grounds ?
(d) If the termination of the services of the petitioner is set aside by the
tribunal, whether the petitioner could be reinstated on probation by the
tribunal or ought to have been given reinstatement on the original post
with continuity of services and back wages ?
38. I shall first decide the question as to whether the regulation
issued by the University Grants Commission in the year 2010 prescribing
for various qualifications and providing for period of probation of one
year has any statutory force without any amendment to the provisions
of the Maharashtra Universities Act, 1994 or to the statutes framed by
the Shivaji University.
39. There is no dispute that under the statutes framed by the
Shivaji University, period of probation provided was two years. There is
no dispute that under the said regulation framed by the University Grants
th
Commission on 30 June 2010, period of probation provided was one
th
year. There is also no dispute that on 15 February 2011, State of
Maharashtra passed a resolution adopting the regulation framed by the
th
University Grants Commission. On 7 March 2011, the Vice Chancellor
of Solapur University issued a direction under Section 14(8) of the
Maharashtra Universities Act, 1994 incorporating the said decision of the
th th
State Government dated 18 September 2010 w.e.f. 30 June 2010.
40. It is not in dispute that the petitioner was appointed as an
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Assistant Professor of Commerce in the college run by the management
rd
on 23 June 2010 i.e. prior to the date of the issuance of the said
regulation by the University Grants Commission.
41. Division Bench of this Court in an unreported judgment in
the case of Maharashtra Federation of University & College Teachers
Organizations (supra) has dealt with this issue in great detail. Division
Bench of this Court has construed the provisions of Section 20 of the
University Grants Commission Act, 1956 (UGC Act) and after
considering the provisions of the UGC Act and also considering the total
scheme of the UGC Act and intention behind the same, has held that
the provisions of the University Statutes cannot be read in isolation
without reading qualification so prescribed by the University Grants
Commission which binds all concerned, including University, College
and Teachers. It is held that the University, the State Government,
therefore, are under obligation to follow and take note of qualifications
so declared by the University Grants Commission for appointments and
for grant of benefits so announced.
42. Division Bench of this Court has also adverted to the
judgment of the Supreme Court in P. Suseela & Ors. (supra) in which
the constitutional validity of the University Grants Commission
Regulations 2009 under which NET/SET qualification was held to be
the minimum eligibility condition for recruitment and appointments of
lecturers/teachers in University/Colleges/Institutions was upheld. In the
said judgment of the Supreme Court, it was declared that the Central
Government directions were prospective and would apply to the
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appointments made after those 2009 regulations and everybody needs
to follow those directions issued under Section 20 of the UGC Act.
43. Division Bench of this Court in the said judgment has also
considered the judgments of the Supreme Court in the cases of Kalyani
Mathivanan Vs. K.V.Jeyaraj & Ors., reported in (2015) 6 SCC 363 and
th
State of Maharashtra & Ors. Vs. Asha Bidkar & Ors. decided on 25
March 2015 in Civil Appeal No.10759 of 2013. It is held by the
Division Bench that while dealing with the provisions of the Maharashtra
Universities Act, 1994, Sections 5(9), 5(60), 14(8) and the UGC Act,
Sections 12(d), 14, 26(1)(e), it is noted that the qualification prescribed
by the UGG, though not provided in the State University Act or the
Statute, the University is not absolved from abiding by the qualifications
prescribed by the UGC. It is held that the same was in the background
that all the Universities are affiliated to the UGC specifically for the
grant and related benefits. It is held that upon referring to various
Supreme Court judgments, it is concluded that all the Universities or
the Colleges affiliated to such Universities are bound by UGC
Regulations issued by the UGC and non-compliance, if any, can be
excused by relaxation only by the UGC, if a case is made out and not as
of right.
44. In my view, the principles of law laid down by the Division
Bench of this Court after adverting to various judgments of the Supreme
Court holding that the regulation framed by the University Grants
Commission are binding upon all the Universities, teachers and Colleges
affiliated to such universities squarely apply to the facts of this case.
There is no dispute that period of probation provided in the said
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regulation of 2010 by the University Grants Commission is for one
year. I am respectfully bound by the judgment of the Division Bench of
this Court in the case of Maharashtra Federation of University &
College Teachers Organizations (supra) .
45. It is not in dispute that the period of one year probation was
not extended for another period of one year by the University on the
ground of unsatisfactory performance. It is also not in dispute that the
services of the petitioner were not terminated by the management before
expiry of one year. In my view, even if an amendment was not brought
in the provisions of the Maharashtra Universities Act, 1994 or in the
statute framed by the Shivaji University thereby reducing the period of
probation from two years to one year, the University as well as the
management cannot be allowed to raise a plea that in absence of any
such amendment to the statute or to the provisions of the Maharashtra
Universities Act, 1994, the management or the University is not bound
by such regulation issued by the University Grants Commission. In my
view, till amendment to the provisions of the Maharashtra Universities
Act, 1994 or to the provisions of the statutes framed by the Shivaji
University so as to reduce the period of probation from two years to
one year is carried out, the University as well as the Colleges affiliated
to the University Grants Commission is bound by such regulation issued
by the University Grants Commission which has statutory force of law,
till such time an amendment is brought to the University Act or Statute.
46. In my view, the said tribunal had committed an error in
the impugned judgment by holding that without amendment in the statute,
probation period could not be reduced from two years to one year or that
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the Vice Chancellor of the Solapur University could not have issued
any order under Section 14(8) of the Maharashtra Universities Act, 1994
without amendment in the statute framed by the Shivaji University. In
my view, the said tribunal thus could not have held that the period of
probation was not reduced from two years to one year as per the
regulation issued by the University Grants Commission and thus the
petitioner had not attained status of a permanent Assistant Professor on
completion of a period of one year from the date of his appointment.
47. Though the said tribunal had taken a view that in the letter
of appointment issued to the petitioner, it was not provided that the
appointment of the petitioner was on probation, approval granted by the
University clearly indicated that the appointment of the petitioner was
on probation, the said tribunal in my view erroneously held that the
petitioner did not become permanent upon expiry of a period of probation
of one year and continued to be on probation for two years. In my view,
the finding of the said tribunal that the period of probation was not
reduced from two years to one year is contrary to the law laid down by
this Court in the case of Maharashtra Federation of University &
College Teachers Organizations (supra) and deserves to be set aside
on that ground itself.
48. In my view, there is thus no merit in the submission of the
learned counsel for the management that the said regulation issued by
the University Grants Commission in the year 2010 which prescribed for
a period of probation as one year had no statutory force of law for want
of appropriate amendment in the provisions of the Maharashtra
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Universities Act, 1994 or in the statutes framed by the Shivaji University.
49. Division Bench of this Court in the case of Beena Inamdar
Vs. University of Pune & Ors.(supra) has held that neither the University
established or incorporated by a Central Act, a Provincial Act or a State
Act nor the Colleges affiliated to such Universities can disregard the
UGC Regulations. It is held that mere fact that the qualifications
prescribed by the University Grants Commission are not provided in the
State Universities Act or in the Statutes and the Regulations framed
thereunder would not absolve the university from abiding by the
qualifications so prescribed by the University Grants Commission and
failure to abide it would run the risk of denial of the grants by the
University Grants Commission. In my view, judgment of the Division
Bench of this Court in the case of Beena Inamdar (supra) applies to the
facts of this case. I am respectfully bound by the said judgment.
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50. A perusal of the order dated 7 March 2011 passed by the
Vice Chancellor on behalf of the Solapur University under Section 14(8)
of the Maharashtra Universities Act, 1994 clearly indicates that the said
order/directive is issued by the Vice Chancellor based on the resolution
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dated 15 February 2011 passed by the Government of Maharashtra
adopting and implementing the said regulation issued by the University
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Grants Commission w.e.f. 30 June 2010. In the said order/directive
issued by the Vice Chancellor of the Solapur University, it is made clear
that the said directive shall be operative until the amended statues or
directives are assented by the Chancellor and Governor of Maharashtra.
It is not in dispute that the Solapur University has not withdrawn the
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said order/directive issued by the Vice Chancellor of the Solapur
University under Section 14(8) of the Maharashtra Universities Act,
1994 till date which is in conformity with the resolution passed by the
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Government of Maharashtra dated 15 February 2011 adopting and
implementing the University Grants Commission Regulations of 2010
issued by the University Grants Commission which is in force.
51. In my view, since the period of probation was for one year
under the said regulation issued by the University Grants Commission,
the petitioner had attained status of a permanent Assistant Professor on
the date of expiry of one year from the date of his appointment and thus
the services of the petitioner could not be terminated on the ground of
alleged unsatisfactory performance without conducting an enquiry into
those allegations/complaints against the petitioner alleging unsatisfactory
performance. In my view, the direction issued by the said tribunal that
the petitioner shall be reinstated on probation is ex facie perverse and
contrary to the law laid down by the Supreme Court in the case of P.
Suseela & Ors. (supra) and the judgments of the Division Bench of this
Court in the cases of Maharashtra Federation of University & College
Teachers Organizations (supra) and Beena Inamdar (supra) and thus
deserves to be set aside.
52. In so far as the view taken by the said tribunal that there
were various complaints alleged to have been received by the
management against the petitioner during the period of probation and the
services of the petitioner were terminated on the ground of unsatisfactory
performance during the period of probation and thus his services could
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not have been terminated without conducting any enquiry is concerned,
no infirmity with the said part of the order can be found. In my view,
there is no merit in the submission of the learned counsel for the
management that the order of termination issued against the petitioner did
not cast any stigma and thus his services could be terminated without
conducting any enquiry during the period of probation. In my view, since
the petitioner had attained the status of a permanent Assistant Professor
upon completion of the period of probation of one year, his services
could not have been terminated by the management without conducting
an inquiry in view of the complaints alleged to have been received by the
management against the petitioner which were referred in the order of
termination. This part of the impugned order passed by the said tribunal
is thus upheld.
53. In so far as the submission of the learned counsel for the
management that there were few students in the the First Year B.Com.,
Second Year B.Com. and Third Year B.Com. and there were no work-
load sanctioned by the University, and thus no order of reinstatement
could have been passed by the said tribunal is concerned, a perusal of
the record indicates that the services of the petitioner were not terminated
on the ground that there was no work-load sanctioned by the university
in so far the said post on which the petitioner was appointed as an
Assistant Professor the college run by the management is concerned. In
my view, the said tribunal has thus rightly granted the relief in favour of
the petitioner for reinstatement of the petitioner in the college run by
the management.
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54. In my view, since the termination of the services of the
petitioner by the management was illegal, the tribunal ought to have
granted relief of continuity of service with back wages in favour of the
petitioner. Be that as it may, if it is ultimately found that the work-load
is not sanctioned by the university in so far as that post is concerned, the
university and college can declare the petitioner as surplus and his
appointment then can be dealt with in accordance with the provisions of
the Maharashtra Universities Act, 1994. In that situation, if there is any
suitable vacancy on the said post in any other college affiliated to the
Solapur University, the petitioner would be eligible to the appointment
on the said suitable post. In my view, learned counsel is right in his
submission that the university and college tribunal though held that the
termination of the services of the petitioner were illegal, the tribunal
had illegally rejected the relief for back wages and continuity of service.
55. I therefore pass the following order :-
(a) Writ Petition No.11074 of 2015 is dismissed. Rule is discharged. No
order as to costs;
(b) Writ Petition No.10207 of 2015 is allowed in terms of prayer
clause (a). The management is directed to reinstate the petitioner in
the post of full-time Assistant Professor in the subject Commerce in
the respondent no.2 college with continuity of service and other
benefits. It is made clear that if the work-load is not available in the
respondent no.2 college in respect of the said post for the petitioner,
the petitioner shall be declared as surplus and shall be appointed on a
suitable post in any other college as may be recommended by the
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university with the same benefits. Rule is made absolute in aforesaid
terms. No order as to costs.
R.D. DHANUKA, J.
. At this stage, Mr.Bandiwadekar, learned counsel appearing
for the management applies for stay of operation of the order allowing
the Writ Petition No.10207 of 2015 and submits that during the period of
stay, the management would not appoint any other person to the said
post of Assistant Professor in the subject Commerce. Statement is
accepted.
. Operation of this order allowing the Writ Petition No.10207
of 2015 is stayed for a period of eight weeks from today. It is made clear
that during this period of stay, without prejudice to the rights and
contentions of the management, the management would be at liberty to
apply to the University and the Government to declare the petitioner as
surplus. If any such proposal is made by the management, the said
proposal can be decided by the University as well as the Government
independently.
R.D. DHANUKA, J.
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