2013 Supreme(Bom) 799

IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
R.C. CHAVAN & P.B. VARALE, JJ.
The Maharashtra University of Health Sciences, Nashik
Vs.
Kalicharan s/o. Ramdas Tripathi & Ors.
Letters Patent Appeal No. 386 of 2011 in Writ Petition No. 4339 of 2010
Decided On : 9th April, 2013

Headnote:MAHARASHTRA UNIVERSITIES OF HEALTH SCIENCE ACT, 1998 - Sections 16(8) and 61(3) - Appointment of Professor in Ayurved College.

       Absence of Director of Ayurved or his nominee during selection procedure for making appointment of a professor in Ayurved College, renders selection procedure, illegal. - Government Resolution dated 18.8.2004 was issued pursuant to the decision of the Supreme Court in T.M.A. Pai Foundation and others v. State of Karnataka and others, (2002) 8 SCC 481. The Government Resolution provided that quorum at the meeting of the Selection Committee would be minimum four, of whom the presence of Director of Ayurved or his representative would be essential. It was submitted that under sub-section (8) of Section 16 of the Act, when any matter is required to be regulated by Statutes, Ordinances, Rules or Regulations, but such Statutes, Ordinances, Rules or Regulations are not made, the Vice-Chancellor could regulate such matters by issuing such directions as he thought necessary, in exercise of these powers, the Vice-Chancellor of Maharashtra University of Health Sciences had issued Direction No. 25 of 2001 prescribing procedure for appointment of Principals, Deans, Directors and Teachers of affiliated Colleges. This Direction provides for Selection Committees and meetings of the Selection Committee. Clause 9.2.4 of this Direction prescribes that the quorum to constitute a meeting of the Selection committee shall be four members, of whom one should be an Expert nominated by the University. Thus, the Direction makes presence of only Expert nominated by the University essential. The Direction does not provide that a meeting cannot be held in the absence of nominee of a Director of Ayurved, who is also shown to be a member of the Selection Committee. It was also submitted that the directions in the judgment of the Supreme Court would not automatically come into force and would require the State Government to carry out necessary amendments in the Act and the University to amend Statute, Ordinance or Rules framed thereunder. Therefore, the Government Resolution dated 18.8.2004, even if taken to have been issued in order to give effect to the observations of the Supreme Court in the judgment in T.M.A. Pai Foundation’ s case, those directions would not automatically supersede the statutory Rules in force.

       Such contention cannot be countenanced since the directions of the Supreme Court, which bind all Authorities, come into force immediately and cannot wait for legislative or executive action. When Supreme Court lays down law on a particular subject, if such pronouncement was to be left to the uncertainties of legislative or executive action, the judgment would lose its efficacy. The direction of the Supreme Court would itself entitle the State Government to regulate the procedure and, therefore, the Government Resolution dated 18.8.2004, will prevail over Direction No. 25 of 2001. (2002) 85CC 481 Ref. to.

       MAHARASHTRA UNIVERSITIES OF HEALTH SCIENCE ACT, 1998 - Section 61(3) - Appointment of Professor.

       Where selection procedure for making appointment of a professor in Ayurved College, was conducted in absence of Director Ayurved or his nominee therefore appointment would be illegal. - When Supreme Court lays down law on a particular subject, if such pronouncement was to be left to the uncertainties of legislative or executive action, the judgment would lose its efficacy. Therefore, when the Supreme Court directed the State Government to take certain steps in order to improve the educational standard in the Institutions aided by the State and the State Government acted pursuant to those directions, no other source of power need be located. The direction of the Supreme Court would itself entitle the State Government to regulate the procedure and, therefore, the Government Resolution dated 18.8.2004, in Court’s view, will prevail over Direction No. 25 of 2001. In view of this, since Government Resolution dated 18.8.2004 prescribes that presence of Director of Ayurved or his nominee was necessary for constituting quorum at the meeting of the Selection Committee, it would have to be held that the requirement as to quorum was not fulfilled in the meeting dated 7.7.2007.