Full Judgment Text
This Order is modified/corrected by Speaking to Minutes Order dated 18/04/2019
cwp 5089-15.doc
DDR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5089 OF 2015
Mrs. Madhuri Sanjeev Ratnaparkhi
& ors. ..Petitioners
Vs.
The State of Maharashtra & ors. ..Respondents
….........
Mr. Uday P. Warunjikar for petitioners.
Ms. Rimi Jain I/b. Rui A. Rodrigues for respondent Nos.2 and 3.
Mrs. R.M. Shinde, AGP for State.
….........
CORAM : S.C. DHARMADHIKARI &
M.S. KARNIK, JJ.
th
RESERVED ON : 6 FEBRUARY, 2019
th
PRONOUNCED ON : 15 MARCH, 2019
JUDGMENT (PER M.S.KARNIK, J.):
. Rule. Rule is made returnable forthwith and heard
finally by consent of the parties.
2. Invoking the jurisdiction of this Court under Article
226 of the Constitution of India, the petitioners are challenging
the decision dated 27/11/2015 taken by the respondent No. 1 –
Principal Secretary, Higher and Technical Education
Department, rejecting the proposal of the petitioners for
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converting the part time lecturer posts in the college to full time
posts.
3. The facts of the case in brief are as under :
The petitioner No.1 was appointed on temporary
basis as a part time Lecturer in the subject of Family
Management Resources on 17/8/1993. After following the
procedure prescribed by the Maharashtra Universities Act, 1994
(hereinafter referred to as 'the said Act' for short) , the petitioner
No.1 was appointed on the post of part time Lecturer with effect
from 25/7/1995. The petitioner No.1's services came to be
th
confirmed by the Registrar of the University vide order dated 4
September, 1997. The petitioner No.1 was granted senior scale
with effect from 19/3/2005 on completion of the requisite
number of years of service. Likewise the petitioner No.2 and
petitioner No.3 were appointed as part time Lecturers.
4. As there was workload of full time Lecturers
available, the respondent No.2 – SNDT Women's University,
made a request to the respondent No.1 – Joint Director of
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Higher Education for permission to convert the part time
Lecturer posts into full time Lecturer posts, with a request that
the petitioners be appointed in the said posts. The
communication making this request for conversion of part time
Lecturer posts into full time posts was sent on 11/2/2011 by the
respondent No.3 to the Joint Director of Higher Education. Even
the respondent No.2 – SNDT Women's University, on
28/6/2011, made a specific recommendation to the Joint
Director in favour of the petitioners.
5. The respondent No. 2 – University granted approval
to the petitioners' appointment on full time basis considering the
workload available vide orders dated 11/6/2010 and 6/4/2011.
Thus, by these orders, existing permanent posts of part time
Lecturer, was converted to that of full time Lecturer posts by the
respondent No.2 – University. The petitioners since the date of
the conversion are rendering services as full time Lecturers on
the said posts.
6. The petitioners place reliance on the G.R. dated
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8/8/1996, which is at page 30 of the paperbook. This G.R.
provides that if a part time teacher is appointed by following
due process of selection by Selection Committee, and if he is
holding necessary educational qualifications, upon the post
being converted into a full time post, the part time Lecturer is to
be appointed in the full time post without going through the
process of regular Selection. It is submitted that the University
by three different letters had requested for conversion of the
part time Lecturer posts into full time posts. Not only that, the
appointments are made as full time Lecturer effective from
11/6/2010 in case of the petitioner No.1 and from 6/4/2011 in
case of the petitioner Nos.2 and 3. The petitioners are
discharging their duties as full time Lecturers in these posts.
7. Relying on the University Statute 124, learned
Counsel for petitioners submitted that if, for any subject, the
parttime teacher is appointed through the proper selection
committee after following due procedure, and if subsequently
workload in the same subject is increased to 12 periods or more
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due to any reason, then such parttime teacher shall be made
full time. It is the contention of learned Counsel that the
workload is more than 12 periods in a week and even the
respondent No.2 in terms of the G.R. and the Statute converted
the post of part time Lecturers into full time Lecturers subject to
the approval of the Director of Higher Education, Pune.
8. The proposal of the petitioners for approval was
forwarded to the Joint Director of Higher Education. The Joint
Director of Higher Education recommended the case of the
petitioners on 1/1/2013 to the Director of Higher Education.
The Director of Higher Education forwarded the proposal of the
petitioners to the Principal Secretary of the Higher and
Technical Education viz. the respondent No.1 herein on
15/6/2013. The proposal forwarded for approval remained
pending with the respondent No.1 without any decision being
taken.
9. In the meantime, respondent No.2 University issued
an advertisement for filling up the posts occupied by the
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petitioners. This Petition therefore came to be filed. By an order
dated 29/10/2015, this Court directed the respondent No.1 to
decide the proposal forwarded by respondent No.2. During the
pendency of this Petition, by an order dated 27/11/2015, the
proposal for approval of the petitioners' appointment was
rejected.
10. Learned AGP appearing on behalf of the respondent
No.1 invited our attention to the affidavitinreply filed by Mr.
Rohidas B. Kale, In charge Joint Director, Higher Education,
Mumbai Region, Mumbai, on behalf of the respondent No.1. In
the affidavit it is stated that by a G.R. dated 27/5/2009, staffing
pattern of the respondent No.2 – University was fixed after
approval of the High Power Committee constituted under G.R.
dated 10/1/2001. As per the staffing pattern there is one part
time post sanctioned for the subject of Family Resource
Management and two parttime posts sanctioned for Food
Science and Nutrition for respondent No.3 – College. In
paragraph 6 of the affidavitinreply, it is stated that the staffing
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pattern sanctioned for S.N.D.T. Women's University is as per the
G.R. dated 27/5/2009 which was inter alia approved by the
High Power Committee headed by the Chief Secretary
constituted vide G.R. dated 10/1/2001 and therefore, it is not
possible to make any changes in the said staffing pattern at their
level. This has been informed to respondent No.2 – University by
letter dated 27/11/2015.
11. We have heard learned counsel for the petitioners
and learned AGP appearing on behalf of the respondent No.1 as
well as learned counsel appearing on behalf of the respondent
Nos. 2 and 3. We have also gone through the Petition and the
annexures thereto. We have perused the affidavitinreply filed
by the respondent No.1 as also the rejoinder filed by the
petitioners thereto.
12. The petitioners were working as part time Lecturers
and appointed by a duly constituted Selection Committee as per
the Rules in force. It is not in dispute that the workload in the
respondent No.3 – college increased, therefore, the respondent
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No.2 – University converted the posts of part time Lecturers to
full time Lecturer posts and a proposal thereon was submitted to
the Joint Director of Higher Education for approval.
13. Even the appointment of the petitioners on parttime
basis was in accordance with prescribed selection procedure
under Section 76(2) of the said Act. On account of there being
workload for full time Lecturers, the respondent No.2 –
University converted the existing permanent post of part time
Lecturers to those of full time Lecturers. It is specifically
mentioned that the posts are converted to full time due to
increase in workload as per G.R. dated 8/8/1996. This was,
however, subject to approval of Director of Higher Education,
Pune.
14. That there is adequate workload for full time
lecturers is not in dispute. Even the Joint Director of Higher
Education recommended the case of the petitioners for approval
and for passing appropriate order for conversion of the part time
lecturer post to full time lecturer posts. Even after certain
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queries were raised, on compliance, the Joint Director of Higher
Education again recommended the case of the present
petitioners on 1/1/2013 to the Director of Higher Education
who forwarded the proposal to the Principal Secretary, Higher
and Technical Education Department.
15. The Statutes of the respondent No.2 – University,
more particularly Statute 124 clearly mentions that if, for any
subject, a parttime teacher is appointed through a properly
constituted selection committee and if subsequently workload in
the same subject is increased to 12 periods or more, due to any
reason, then such parttime teacher shall be made full time. As
observed earlier, the parttime appointment of the petitioners is
through the proper Selection Committee constituted for the
purpose. In terms of the statute, even the University having
realised that the workload has increased and that there being
adequate workload for a full time Lecturer, has submitted the
proposal for approval for conversion of the post of parttime
Lecturers as full time. Pursuant to the conversion of the posts to
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full time by the University, the petitioners have been discharging
their duties as full time Lecturers. The proposal for conversion
and approval was recommended by the Joint Director of Higher
Education and even the Director of High Education has
forwarded the recommendations to the respondent No.1.
th
16. The G.R. dated 8 August, 1996 clearly mentions
that if the appointment of a teacher on a part time post is in
accordance with the procedure prescribed, then, for the purpose
of his appointment on full time basis, there is no need to
undergo a fresh selection process. The petitioners have requisite
qualifications required for appointment as Lecturers. In fact
though the proposals for approval were submitted as far back as
in 2009 and 2011, the impugned order rejecting the proposals
came to be passed only on 27/11/2015.
17. As narrated earlier, in view of the increased
workload, the University converted the post of part time
Lecturers to full time and the petitioners are working as full time
Lecturers pursuant to such conversion. The record clearly
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indicates that there is more than adequate workload available
for the posts of full time Lecturers on which the petitioners are
appointed. The University having taken a decision in terms of
the statutes applicable to them, converted the posts of part time
Lecturers to full time Lecturers in view of the increased in
workload, and as even the Joint Director of Higher Education
positively recommended the proposal of the University for such
conversion, there was no reason why the said proposal deserved
a rejection.
18. The impugned order mentions that as per the
staffing pattern of the University there are seven approved posts
of part time Lecturers. For S.N.D.T. College of Home Science,
Pune, three parttime Lecturers posts are approved. The only
reason for rejection of the proposal is that since the staffing
pattern is in place, the three posts of parttime Assistant
Lecturers cannot be converted into full time Assistant Lecturer
posts. This reasoning, in our opinion, is not just and proper. The
staffing pattern undoubtedly is based on the workload available
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at the relevant point of time. Over a period of time as the
workload is increased, as per the provision in the statute viz.
Statute 124, the University decided to convert the part time
posts held by the petitioners to full time basis. When there is a
adequate workload available on which the petitioners are
already discharging their duties, and as there exists a provision
in the statute for such a conversion, rejecting the proposal for
approval on the ground that the staffing pattern is finalized as
th
per G.R. dated 27 May, 2009 is unsustainable. No doubt, G.R.
th
dated 27 May, 2009 provides for fixing a staffing pattern, but
to then say that changes in the staffing pattern is not possible
despite admitted increase in workload is untenable. The G.R.
dated 27/5/2009 only provides for a staffing pattern which was
approved by the High Power Committee headed by the Chief
Secretary which was constituted vide G.R. dated 10/1/2001.
The staffing pattern obviously is based on the workload that
existed as on the date when the proposal for finalizing the
staffing pattern was submitted. The said G.R. does not override
the Statutes of the University as also the earlier G.R. of 1996.
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Nor does the fixing of the staffing pattern take away the power
of respondent No.1 to approve proposals in case of increase in
workload. In view of the specific provision viz. Statute 124
which exists and also in view of the G.R. of 1996, we do not find
that the respondent No.1 is justified in rejecting the proposal for
approval for conversion of the posts of parttime Lecturers to
that of full time Lecturers. On the contrary, this was a fit case for
the respondent No.1 to have granted approval for such
conversion, as not only the University in accordance with Statute
124 as well as the G.R. of 1996, converted the posts of part time
Lecturers to full time Lecturers posts in view of the increase in
workload; but even the petitioners who are discharging duties as
full time Lecturers were appointed initially as part time
Lecturers after a proper selection process, who by virtue of G.R.
of 1996 need not undergo a fresh selection process and are
entitled to continue on the posts upon its conversion to full time.
The Petition, therefore, deserves to succeed.
19. The impugned order dated 27/11/2015 is quashed
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and set aside. The respondent No.1 is directed to approve the
proposal submitted by the respondent No.2 as recommended by
the Joint Director of Higher Education in terms of his
recommendation dated 4/5/2012 at Exhibit 'N' which is at page
38 of the paperbook.
20. Rule is accordingly made absolute with no order as
to costs.
(M.S. KARNIK, J.) ( S.C. DHARMADHIKARI , J.)
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DDR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5089 OF 2015
Mrs. Madhuri Sanjeev Ratnaparkhi
& ors. ..Petitioners
Vs.
The State of Maharashtra & ors. ..Respondents
….........
Mr. Uday P. Warunjikar for petitioners.
Ms. Rimi Jain I/b. Rui A. Rodrigues for respondent Nos.2 and 3.
Mrs. R.M. Shinde, AGP for State.
….........
CORAM : S.C. DHARMADHIKARI &
M.S. KARNIK, JJ.
th
RESERVED ON : 6 FEBRUARY, 2019
th
PRONOUNCED ON : 15 MARCH, 2019
JUDGMENT (PER M.S.KARNIK, J.):
. Rule. Rule is made returnable forthwith and heard
finally by consent of the parties.
2. Invoking the jurisdiction of this Court under Article
226 of the Constitution of India, the petitioners are challenging
the decision dated 27/11/2015 taken by the respondent No. 1 –
Principal Secretary, Higher and Technical Education
Department, rejecting the proposal of the petitioners for
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converting the part time lecturer posts in the college to full time
posts.
3. The facts of the case in brief are as under :
The petitioner No.1 was appointed on temporary
basis as a part time Lecturer in the subject of Family
Management Resources on 17/8/1993. After following the
procedure prescribed by the Maharashtra Universities Act, 1994
(hereinafter referred to as 'the said Act' for short) , the petitioner
No.1 was appointed on the post of part time Lecturer with effect
from 25/7/1995. The petitioner No.1's services came to be
th
confirmed by the Registrar of the University vide order dated 4
September, 1997. The petitioner No.1 was granted senior scale
with effect from 19/3/2005 on completion of the requisite
number of years of service. Likewise the petitioner No.2 and
petitioner No.3 were appointed as part time Lecturers.
4. As there was workload of full time Lecturers
available, the respondent No.2 – SNDT Women's University,
made a request to the respondent No.1 – Joint Director of
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Higher Education for permission to convert the part time
Lecturer posts into full time Lecturer posts, with a request that
the petitioners be appointed in the said posts. The
communication making this request for conversion of part time
Lecturer posts into full time posts was sent on 11/2/2011 by the
respondent No.3 to the Joint Director of Higher Education. Even
the respondent No.2 – SNDT Women's University, on
28/6/2011, made a specific recommendation to the Joint
Director in favour of the petitioners.
5. The respondent No. 2 – University granted approval
to the petitioners' appointment on full time basis considering the
workload available vide orders dated 11/6/2010 and 6/4/2011.
Thus, by these orders, existing permanent posts of part time
Lecturer, was converted to that of full time Lecturer posts by the
respondent No.2 – University. The petitioners since the date of
the conversion are rendering services as full time Lecturers on
the said posts.
6. The petitioners place reliance on the G.R. dated
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8/8/1996, which is at page 30 of the paperbook. This G.R.
provides that if a part time teacher is appointed by following
due process of selection by Selection Committee, and if he is
holding necessary educational qualifications, upon the post
being converted into a full time post, the part time Lecturer is to
be appointed in the full time post without going through the
process of regular Selection. It is submitted that the University
by three different letters had requested for conversion of the
part time Lecturer posts into full time posts. Not only that, the
appointments are made as full time Lecturer effective from
11/6/2010 in case of the petitioner No.1 and from 6/4/2011 in
case of the petitioner Nos.2 and 3. The petitioners are
discharging their duties as full time Lecturers in these posts.
7. Relying on the University Statute 124, learned
Counsel for petitioners submitted that if, for any subject, the
parttime teacher is appointed through the proper selection
committee after following due procedure, and if subsequently
workload in the same subject is increased to 12 periods or more
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due to any reason, then such parttime teacher shall be made
full time. It is the contention of learned Counsel that the
workload is more than 12 periods in a week and even the
respondent No.2 in terms of the G.R. and the Statute converted
the post of part time Lecturers into full time Lecturers subject to
the approval of the Director of Higher Education, Pune.
8. The proposal of the petitioners for approval was
forwarded to the Joint Director of Higher Education. The Joint
Director of Higher Education recommended the case of the
petitioners on 1/1/2013 to the Director of Higher Education.
The Director of Higher Education forwarded the proposal of the
petitioners to the Principal Secretary of the Higher and
Technical Education viz. the respondent No.1 herein on
15/6/2013. The proposal forwarded for approval remained
pending with the respondent No.1 without any decision being
taken.
9. In the meantime, respondent No.2 University issued
an advertisement for filling up the posts occupied by the
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petitioners. This Petition therefore came to be filed. By an order
dated 29/10/2015, this Court directed the respondent No.1 to
decide the proposal forwarded by respondent No.2. During the
pendency of this Petition, by an order dated 27/11/2015, the
proposal for approval of the petitioners' appointment was
rejected.
10. Learned AGP appearing on behalf of the respondent
No.1 invited our attention to the affidavitinreply filed by Mr.
Rohidas B. Kale, In charge Joint Director, Higher Education,
Mumbai Region, Mumbai, on behalf of the respondent No.1. In
the affidavit it is stated that by a G.R. dated 27/5/2009, staffing
pattern of the respondent No.2 – University was fixed after
approval of the High Power Committee constituted under G.R.
dated 10/1/2001. As per the staffing pattern there is one part
time post sanctioned for the subject of Family Resource
Management and two parttime posts sanctioned for Food
Science and Nutrition for respondent No.3 – College. In
paragraph 6 of the affidavitinreply, it is stated that the staffing
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pattern sanctioned for S.N.D.T. Women's University is as per the
G.R. dated 27/5/2009 which was inter alia approved by the
High Power Committee headed by the Chief Secretary
constituted vide G.R. dated 10/1/2001 and therefore, it is not
possible to make any changes in the said staffing pattern at their
level. This has been informed to respondent No.2 – University by
letter dated 27/11/2015.
11. We have heard learned counsel for the petitioners
and learned AGP appearing on behalf of the respondent No.1 as
well as learned counsel appearing on behalf of the respondent
Nos. 2 and 3. We have also gone through the Petition and the
annexures thereto. We have perused the affidavitinreply filed
by the respondent No.1 as also the rejoinder filed by the
petitioners thereto.
12. The petitioners were working as part time Lecturers
and appointed by a duly constituted Selection Committee as per
the Rules in force. It is not in dispute that the workload in the
respondent No.3 – college increased, therefore, the respondent
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No.2 – University converted the posts of part time Lecturers to
full time Lecturer posts and a proposal thereon was submitted to
the Joint Director of Higher Education for approval.
13. Even the appointment of the petitioners on parttime
basis was in accordance with prescribed selection procedure
under Section 76(2) of the said Act. On account of there being
workload for full time Lecturers, the respondent No.2 –
University converted the existing permanent post of part time
Lecturers to those of full time Lecturers. It is specifically
mentioned that the posts are converted to full time due to
increase in workload as per G.R. dated 8/8/1996. This was,
however, subject to approval of Director of Higher Education,
Pune.
14. That there is adequate workload for full time
lecturers is not in dispute. Even the Joint Director of Higher
Education recommended the case of the petitioners for approval
and for passing appropriate order for conversion of the part time
lecturer post to full time lecturer posts. Even after certain
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queries were raised, on compliance, the Joint Director of Higher
Education again recommended the case of the present
petitioners on 1/1/2013 to the Director of Higher Education
who forwarded the proposal to the Principal Secretary, Higher
and Technical Education Department.
15. The Statutes of the respondent No.2 – University,
more particularly Statute 124 clearly mentions that if, for any
subject, a parttime teacher is appointed through a properly
constituted selection committee and if subsequently workload in
the same subject is increased to 12 periods or more, due to any
reason, then such parttime teacher shall be made full time. As
observed earlier, the parttime appointment of the petitioners is
through the proper Selection Committee constituted for the
purpose. In terms of the statute, even the University having
realised that the workload has increased and that there being
adequate workload for a full time Lecturer, has submitted the
proposal for approval for conversion of the post of parttime
Lecturers as full time. Pursuant to the conversion of the posts to
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full time by the University, the petitioners have been discharging
their duties as full time Lecturers. The proposal for conversion
and approval was recommended by the Joint Director of Higher
Education and even the Director of High Education has
forwarded the recommendations to the respondent No.1.
th
16. The G.R. dated 8 August, 1996 clearly mentions
that if the appointment of a teacher on a part time post is in
accordance with the procedure prescribed, then, for the purpose
of his appointment on full time basis, there is no need to
undergo a fresh selection process. The petitioners have requisite
qualifications required for appointment as Lecturers. In fact
though the proposals for approval were submitted as far back as
in 2009 and 2011, the impugned order rejecting the proposals
came to be passed only on 27/11/2015.
17. As narrated earlier, in view of the increased
workload, the University converted the post of part time
Lecturers to full time and the petitioners are working as full time
Lecturers pursuant to such conversion. The record clearly
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indicates that there is more than adequate workload available
for the posts of full time Lecturers on which the petitioners are
appointed. The University having taken a decision in terms of
the statutes applicable to them, converted the posts of part time
Lecturers to full time Lecturers in view of the increased in
workload, and as even the Joint Director of Higher Education
positively recommended the proposal of the University for such
conversion, there was no reason why the said proposal deserved
a rejection.
18. The impugned order mentions that as per the
staffing pattern of the University there are seven approved posts
of part time Lecturers. For S.N.D.T. College of Home Science,
Pune, three parttime Lecturers posts are approved. The only
reason for rejection of the proposal is that since the staffing
pattern is in place, the three posts of parttime Assistant
Lecturers cannot be converted into full time Assistant Lecturer
posts. This reasoning, in our opinion, is not just and proper. The
staffing pattern undoubtedly is based on the workload available
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at the relevant point of time. Over a period of time as the
workload is increased, as per the provision in the statute viz.
Statute 124, the University decided to convert the part time
posts held by the petitioners to full time basis. When there is a
adequate workload available on which the petitioners are
already discharging their duties, and as there exists a provision
in the statute for such a conversion, rejecting the proposal for
approval on the ground that the staffing pattern is finalized as
th
per G.R. dated 27 May, 2009 is unsustainable. No doubt, G.R.
th
dated 27 May, 2009 provides for fixing a staffing pattern, but
to then say that changes in the staffing pattern is not possible
despite admitted increase in workload is untenable. The G.R.
dated 27/5/2009 only provides for a staffing pattern which was
approved by the High Power Committee headed by the Chief
Secretary which was constituted vide G.R. dated 10/1/2001.
The staffing pattern obviously is based on the workload that
existed as on the date when the proposal for finalizing the
staffing pattern was submitted. The said G.R. does not override
the Statutes of the University as also the earlier G.R. of 1996.
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Nor does the fixing of the staffing pattern take away the power
of respondent No.1 to approve proposals in case of increase in
workload. In view of the specific provision viz. Statute 124
which exists and also in view of the G.R. of 1996, we do not find
that the respondent No.1 is justified in rejecting the proposal for
approval for conversion of the posts of parttime Lecturers to
that of full time Lecturers. On the contrary, this was a fit case for
the respondent No.1 to have granted approval for such
conversion, as not only the University in accordance with Statute
124 as well as the G.R. of 1996, converted the posts of part time
Lecturers to full time Lecturers posts in view of the increase in
workload; but even the petitioners who are discharging duties as
full time Lecturers were appointed initially as part time
Lecturers after a proper selection process, who by virtue of G.R.
of 1996 need not undergo a fresh selection process and are
entitled to continue on the posts upon its conversion to full time.
The Petition, therefore, deserves to succeed.
19. The impugned order dated 27/11/2015 is quashed
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and set aside. The respondent No.1 is directed to approve the
proposal submitted by the respondent No.2 as recommended by
the Joint Director of Higher Education in terms of his
recommendation dated 4/5/2012 at Exhibit 'N' which is at page
38 of the paperbook.
20. Rule is accordingly made absolute with no order as
to costs.
(M.S. KARNIK, J.) ( S.C. DHARMADHIKARI , J.)
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