Advocates:
['ULHAS S SAWJI', 'A S DESHPANDE FO R NO', '', 'GP', 'R P KANOJIA', 'COPY SERVED ON GP', 'PRADEEP DESHMUKH', 'RODGE PRATAP G', 'for rno']

(1)

wp415-06

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO. 415 OF 2006

Dr. Gangadhar s/o Balkrishna Kulkarni,

R/o 62, "Gajanan", Ramkrishna Nagar,

Basmat Road, Parbhani, Taluka

and District Parbhani.

PETITIONER

VERSUS

1.

The State of Maharashtra,

Through Secretary, Maharashtra

Animal Husbandry and Dairy

Department, Mantralaya, Mumbai.

2.

The Maharashtra Animal Husbandry

and Fishery Sciences University,

through its Registrar.

3.

Dr. Madan s/o Vasant Joshi,

R/o Department of Pathology,

P.G.I. Akola, Taluka and

District Akola.

RESPONDENTS

....

Mr. U.S. Sawji, advocate for the petitioner.

Mr. P.P. More, A.G.P. for the respondent/State.

Mr. P.G. Rodge, advocate for respondent No. 2.

Mr. P.G. Deshmukh, advocate for respondent No. 3.

....

CORAM :

SMT. NISHITA MHATRE AND

M.T. JOSHI, JJ.

DATE OF JUDGEMENT RESERVED : 2nd May, 2011

DATE OF JUDGEMENT PRONOUNCED : 5th May, 2011

JUDGEMENT (PER : M.T. JOSHI, J.) :

1.

By the present writ petition, the petitioner

is praying for quashing of order, dated 9th May,

(2)

wp415-06

2005, issued by the respondent No. 2 - the

University, thereby promoting the respondent No. 3

from the post of Associate Professor to the post of

Professor of Pathology.

2.

The petitioner's contentions, in short, are

as under :

When the selection process for promotion to

the post of Professor in Pathology was initiated, he

was the seniormost candidate amongst the eligible

Associate Professors. The respondent No. 3 stood at

serial No. 3. The petitioner worked as an Associate

Professor firstly on term basis and thereafter, on

regular basis from 12th November, 1991 i.e. for a

period of eleven years and six months till the date

of selection process for the promotion. According to

the Statutes of the University, 60% marks are

allotted for past performance and 40% marks are

allotted for personal interview. The Selection

Committee, however, did not hold any interview

against the provisions of Statute No. 60, and thus,

though the petitioner is more suitable, qualified and

senior, is superseded against the provisions of the

(3)

wp415-06

Statute. In fact, when this petition was filed, the

petitioner was already appointed to the post of

Professor in Pathology on temporary basis in view of

the directions issued by the Vice Chancellor of the

University, invoking the emergency powers conferred

on him as per Statute 54. However, when regular

selection process for promotion was initiated, the

petitioner is superseded by contravening the

provisions of Statute 60 and, therefore, the present

petition is preferred.

3.

The respondent No. 3 raised two preliminary

objections. The first of the objection is that

alternate efficacious remedy of approaching the

Grievance Committee, as set up under the provisions

of the Maharashtra Animal and Fishery Sciences

University Act, 1998 (for short, "the Act") and the

Statutes of the University, is available to the

petitioner and, in fact, the petitioner has filed a

representation before the said Grievance Committee

and, therefore, according to the respondent No. 3,

the petition is liable to be dismissed on this ground

alone. He relied on the ratio laid down in “Bombay

(4)

wp415-06

Metropolitan Region Development Authority, Bombay vs.

Gokak Patel Volkart Ltd. and others” 1995 (1)

Mh.L.J. 257 and “Satchikitsa Prasarak Mandal and

others vs. Maharashtra University of Health Scie