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2015 Supreme(Bom) 888
In the High Court of Bombay at Aurangabad
S.S. SHINDE & P.R. BORA, JJ.
Pravin & Others – Petitioner
Versus
The Vasantrao Naik Marathwada Krishi Vidyapeeth, Parbhani – Respondent
Writ Petition Nos. 6591, 6592, 6593, 6594, 7061 & 7559 of 2014
Decided On : 11-06-2015
For the Petitioners:Avinash Deshmukh, B.A. Darak, Advocates.
For the Respondents:R1, M.N. Navandar, Advocate, S.K. Kadam, AGP.
Appointments made in exercise of extraordinary power conferred upon the Vice-Chancellor under the 1st proviso to Clause (1) of Statute 74 are not regular appointments and have to be treated as ad hoc for all practical purposes. Amended Statutes cannot be applied retrospectively and will have to be applied prospectively only. Petitioners, who possess qualifications as per the amended Statutes, have the right to be considered for appointment on promotional posts.
Headnote:
The Court held that the petitioners' appointments on promotion were not regular and had to be treated as ad hoc for all practical purposes. The Court also held that the amended Statutes of 2014 could not be applied retrospectively and would have to be applied prospectively. The Court further held that the petitioners, who possessed qualifications as per the amended Statutes of 2014, had the right to be considered for appointment on promotional posts.
Fact of the Case:
The petitioners were all members of the Academic Staff of the Vasantrao Naik Marathwada Krishi Vidyapeeth, Parbhani. Due to non-availability of Selection Committees on a regular basis, the Vice-Chancellor/s were/are routinely required to exercise the power under the 1st proviso to Clause (1) of Statute 74 and effect appointments through the mode of promotion from lower category to higher category of posts, in view of urgent need of qualified personnel in the larger interests of students. Resultantly, the procedure routinely being followed in the University was that the Vice-Chancellor used to effect promotions of suitable and eligible candidates, that too only after duly completing all the procedural formalities, such as, one of it is considering their respective eligibility on the basis of educational qualifications & requisite experience, seniority, confidential reports for the relevant periods, social category-availability of roster point vacancy, fulfilling of other eligibility criteria for promotion, etc, on the basis of Statutes of 1990. That is to say, the Vice-Chancellor though was exercising the power under 1st proviso to Clause (1) of Statute 74 for making appointments for a stipulated period of time not exceeding one year, however the procedure, which was routinely being followed before exercise of that power, was the due procedure required to be followed by the Selection Committee while recommending names for promotions and it was only thereafter that, the promotion orders were being issued. In other words, all the procedural formalities, that were required to be mandatorily completed before or at the time of effecting regular promotions at the hands of the Selection Committee, were all duly completed even at the time when the Vice-Chancellor effected promotions in exercise of the power conferred upon him under the 1st proviso to Clause (1) of Statute 74. Resultant effect thereof being that but for the formal stamp of approval by the Selection Committee, due to the non-availability of which, the Vice-Chancellor was compelled to exercise said extraordinary power vested in him, the promotions effected by the Vice-Chancellor were in fact regular promotions for all practical purposes.
Finding of the Court:
The Court held that the petitioners' appointments on promotion were not regular and had to be treated as ad hoc for all practical purposes. The Court also held that the amended Statutes of 2014 could not be applied retrospectively and would have to be applied prospectively. The Court further held that the petitioners, who possessed qualifications as per the amended Statutes of 2014, had the right to be considered for appointment on promotional posts.
Issues: 1. Whether the petitioners' appointments on promotion were regular or ad hoc? 2. Whether the amended Statutes of 2014 could be applied retrospectively? 3. Whether the petitioners, who possessed qualifications as per the amended Statutes of 2014, had the right to be considered for appointment on promotional posts?
Ratio Decidendi: 1. The Court held that the petitioners' appointments on promotion were not regular and had to be treated as ad hoc for all practical purposes because: a. The appointments were made for a stipulated period of 11 months only. b. The appointments were made in exercise of the extraordinary power conferred upon the Vice-Chancellor under the 1st proviso to Clause (1) of Statute 74, which was not the regular procedure for making appointments. c. The appointments were made without the formal stamp of approval by the Selection Committee, which was a mandatory requirement for regular promotions. 2. The Court held that the amended Statutes of 2014 could not be applied retrospectively because: a. The amended Statutes were not made applicable with retrospective effect. b. The amended Statutes were intended to apply prospectively only. c. The petitioners were appointed on promotion before the amended Statutes came into force. 3. The Court held that the petitioners, who possessed qualifications as per the amended Statutes of 2014, had the right to be considered for appointment on promotional posts because: a. The petitioners were qualified as per the amended Statutes. b. The petitioners had a right to be considered for promotion. c. The amended Statutes did not bar the petitioners from being considered for promotion.
Final Decision: The Court dismissed the petitions.
S.S. Shinde, J.
1. Rule. Rule made returnable forthwith and heard finally by consent of the learned counsel appearing for the respective parties.
2. These Petitions have been filed with following main prayer:-
“C. Rule may kindly be made absolute by quashing and setting aside the impugned orders of cancellation of promotions of petitioners (Annex. L Collectively) issued by Respondent No.1 with further directions to the Respondent No.1 to reinstate all the petitioners on the posts of and in the cadre of Assistant Professors.”
There are other prayers as well in the Petitions.
(I) The facts leading for filing the Writ Petitions in nutshell are as under :-
3. It is the case of the petitioners that, all the Petitioners are the Members of Academic Staff of the University referred under Chapter VII of the Maharashtra Agricultural Universities (Krishi Vidyapeeths) Statutes, 1990 (hereinafter referred to as “the Statutes of 1990” for short), which deals with the duties of teaching, research and extension education of the Member of said Academic Staff. It is the case of the petitioners that, it is of common knowledge that, there are four Agricultural Universities in the State of Maharashtra situated at Akola in Vidarbha Region, at Rahuri in Western Region, at Parbhani in Marathwada Region and at Dapoli in Konkan Region. As far as petitioners are concerned, they are all employees of the Agricultural University at Parbhani, known as “The Vasantrao Naik Marathwada Krishi Vidyapeeth”, which was established way back in the year 1972. Since its establishment, all procedures of the said University were governed by the “Marathwada Krishi Vidyapeeth Act, 1972”. It is the case of the petitioners that, however it was subsequently in the year 1983, His Excellency the Governor of Maharashtra was pleased to give assent to the Maharashtra Agricultural Universities (Krishi Vidyapeeths) Act, 1983 (hereinafter referred to as “the Act of 1983”), which consolidated and amended the law relating to above-named four Agricultural Universities in Maharashtra. As such, from 1983 onwards the procedures in all four Agricultural Universities in the State are governed by the provisions of the said Act of 1983 and the Statutes framed there-under.
4. It is the case of the petitioners that, after introduction of the above referred Act of 1983, it was in the year 1990, and to be precise on 12/07/1990, the State Government was pleased to introduce the Statutes of 1990 in exercise of power conferred upon it by sub-section (6) of section 38 of the Act of 1983, providing for the designations, qualifications, method of recruitment, pay, allowances and other conditions of service of Professors, Associate Professors, Assistant Professors, Lecturers, Demonstrators and other categories of employees of affiliated colleges and recognized Institutions, and their powers & duties amongst other concerned matters. It is the case of the petitioners that, pertinently said Statutes of 1990, amongst other provision, specifically provided for the Academic Officers, Heads of Departments, Professors and other equivalent posts of the University, as also for the ‘Academic Staff Members’ of the University in Chapters V & VII respectively. Statute no. 71 under Chapter VII provided various ranks/posts existing in the University. As far as, the present case is concerned, it relates to the following hierarchy of posts under the Academic Staff in its ascending order-
Junior Research Assistant (JRA)
Senior Research Assistant (SRA)
Assistant Professor
Associate Professor
Professor
Head of Department (HOD)
Associate Dean & Principal
Director of Instructions & Dean/Director of Research/ Director of Extension
5. It is the case of the petitioners that, prior to October 2013 appointments upto the cadre of Associate Professors were within the purview of the Vice Chancellor of University and the appointments of Professors and above were within the purview of “The Maharashtra Council of Agricultural Education & Re
