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2017 Supreme(Bom) 1799
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
Z.A. HAQ, J.
Dr. Nitin Chintaman Kongre - Petitioner
Vs.
The State of Maharashtra, through its Principal Secretary Higher and Technical Education Department, Mantralaya & Ors. - Respondents
Writ Petition No.7061 of 2017
Decided On : 23-11-2017
For the Petitioner:Shri A.I. Sheikh, Advocate.
For the Respondents:Ms. T.H. Khan, A.G.P., Shri P.B. Patil, Shri S.P. Bhandarkar, Advocate.
The de facto Head of Department holds significance in the context of university elections, and the authority to resolve the seniority dispute lies with the Management and the Grievance Committee of the University.
Headnote:
Seniority Dispute - University Elections - Maharashtra Universities Act - Section 37(2)(b), Section 40(2)(c) of the Act of 2016 - The court discussed the provisions of the Maharashtra Universities Act, particularly Section 37(2)(b) and Section 40(2)(c) of the Act of 2016, and emphasized the relevance of the de facto Head of Department in the context of university elections. The court highlighted the oversight of the Returning Officer and the Vice-Chancellor in considering the criteria of seniority, and emphasized the importance of the de facto Head of Department in finalizing the electoral roll for the elections.
Fact of the Case:
The petitioner and respondent No.5, both appointed as full-time Lecturers, were in a dispute over the seniority and the designation as Head of Department of Chemistry. The dispute arose in the context of university elections for the Board of Studies.
Finding of the Court:
The court found that the Returning Officer and the Vice-Chancellor had overlooked the relevance of the de facto Head of Department in finalizing the electoral roll for the university elections. The court emphasized that the dispute of seniority should be resolved by the Management and the Grievance Committee of the University, and not by the Returning Officer or the Vice-Chancellor.
Issues: The key issues revolved around the criteria for designating the Head of Department for university elections, the oversight of the Returning Officer and the Vice-Chancellor in considering the seniority dispute, and the authority to resolve the seniority dispute.
Ratio Decidendi: The court's decision was based on the interpretation of the relevant provisions of the Maharashtra Universities Act, emphasizing the importance of the de facto Head of Department in the context of university elections and highlighting the authority of the Management and the Grievance Committee of the University to resolve the seniority dispute.
Final Decision: The court quashed the decision of the Returning Officer, set aside the order of the Vice-Chancellor, directed the inclusion of the petitioner as Head of Department of Chemistry, and ordered the deletion of the name of respondent No.5 from the list of Heads of Departments. The court also directed the continuation of the election process with the petitioner as a member of the Collegium of voters' list for the election of Heads of Departments.
1. Heard Shri A.I. Sheikh, Advocate for the petitioner, Ms. T.H. Khan, A.G.P. for respondent No.1, Shri P.B. Patil, Advocate for respondent Nos.2 and 3 and Shri S.P. Bhandarkar, Advocate for respondent No.5.
The notice of petition is not served on respondent College No.4, however, considering the nature of dispute and the fact that the elections of Board of Studies are scheduled on 25th November, 2017 and as the contesting parties are represented, the petition is taken up for hearing.
2. Rule. Rule made returnable forthwith.
3. The relevant facts are as follows:
The petitioner was appointed by order dated 4th December, 1999 as Part-time Lecturer in Chemistry. The petitioner joined duties on 7th December, 1999. By communication dated 14th February, 2000, the Assistant Registrar informed that the Vice-Chancellor had granted approval to the appointment of the petitioner as part-time Lecturer from academic session 1999 - 2000 onwards on ad-hoc basis subject to the conditions laid down in the Government Resolution dated 22nd December, 1995. This Government Resolution permitted the appointments of lecturers who did not fulfil the eligibility criteria of qualifying National Eligibility Test/State Eligibility Test, on ad-hoc basis. By subsequent communication dated 23rd April, 2001, the Assistant Registrar had informed that as workload of full time Lecturer was available in the academic session 2000 - 2001, the appointment of the petitioner was approved as full-time Lecturer from the date of his appointment. It is undisputed that the petitioner is in continuous service in the respondent No.4 college since the date of his appointment.
4. The respondent No.5 was appointed as full-time Lecturer in Chemistry by appointment order dated 4th December, 1999. The respondent No.5 joined duty on 8th December, 1999. By the communication dated 14th February, 2000, the appointment of respondent No.5 as full-time Lecturer was approved from 1999 - 2000 onwards on ad-hoc basis subject to the conditions laid down in Government Resolution dated 22nd December, 1995. It is undisputed that the respondent No.5 is also in continuous service with the respondent No.4 college since the date of his appointment.
5. As the petitioner and the respondent No.5 had not qualified National Eligibility Test / State Eligibility Test, exemption was sought from the University Grants Commission and it was granted on 5th November, 2008. After the University Grants Commission granted exemption to the petitioner and the respondent No.5, the University informed, by the communication dated 11th April, 2009, that the approval to the appointments of the petitioner and the respondent No.5 was continued.
6. The petitioner claims that the Management took decision pursuant to which the Principal designated the petitioner as Head of Department of Chemistry on 20th October, 2011. The petitioner claims that Shri Jugade who was working as Head of Department of Chemistry at that time, handed over the charge to the petitioner and since then he is holding the charge and working as Head of Department of Chemistry. To substantiate this, the petitioner has placed on record copy of communication dated 21st October, 2011 from Dr. R.M. Jugade to the Principal of the respondent No.4 College (at Annexure F page 31 of the paper book).
7. It appears that after the petitioner was designated as Head of Department of Chemistry, the respondent No.5 staked his claim for the post of Head of Department of Chemistry on the basis of seniority. By representation dated 20th December, 2013, the respondent No.5 requested the Principal of respondent No.4 college that he should be given benefit of seniority as he is senior to the petitioner having been appointed as full-time Lecturer by order dated 4th December, 1999 and at that time the petitioner was appointed as part-time Lecturer. It is on record that the dispute of seniority was taken to the University Authorities. The Deputy Registrar informed the Principal o
