R.C. Chavan, J.
Admit. Heard finally with consent of learned Counsel for the parties.
2. This appeal questioning judgment dated 16/8/2011 of the learned Single Judge in Writ Petition No.4339/2010 has been taken up for final hearing pursuant to the order dated 16/11/2011.
3. The facts, which are material for deciding this appeal, are as under :
The respondent no.1 was employed by respondent no.2 Society in its respondent no.3 College as a Lecturer in the subject of 'Sharir Kriya' since 9/7/1986. It appears that he was appointed to teach Post Graduate Classes in the subject of 'Sharir Rachna' sometime in 1991 when the College was permitted to start such Post Graduate Courses. Armed with such experience, on 14/9/1996, the respondent no.1 is stated to have been promoted as a Reader in the Department of Sharir Rachna by the respondent nos.2 and 3. Though the appellant University was established in 1998, as regards post graduate courses, the affairs of respondent no.3 College were under the control of Amravati University, which accorded approval to the appointment of respondent no.1 as a Reader in Sharir Rachna by letter dated 9/1/1998. It appears that on 14/8/1998, the Director of Ayurved, Government of Maharashtra wrote to the Section Officer in the Ministry of Medical Education that the post of Reader in the subject of Sharir Rachna did not at all exist in the respondent no.3 College. However, this letter does not seem to have been produced before the Grievance Committee and the learned Single Judge. The respondent no.1 Shri TrIpathi claimed to have been thus working as a Reader in Sharir Rachna Department from 14/9/1996.
4. A post of Professor in the Department of Sharir Rachna was advertised and it appears that there was some grievance about selection procedure leading to even a civil suit being filed. The respondent no.1 seems to have raised a grievance in this regard. The respondent no.1 filed Writ Petition No.1266/2007 before this Court. It was pointed out that Shri Bibekar, who was also aspiring for the same post to which respondent no.1 claimed appointment, had retired in the meantime. Therefore, the petition was disposed of by order dated 24/4/2007 directing the Management and College to consider respondent no.1's claim for promotion and to decide it on its own merits. It appears that on 7/7/2007, respondent no.1 was appointed as a Professor by respondent Nos.2 and 3 in Sharir Rachna Department. This appointment was made after respondent no.1 was interviewed by the Selection Committee, which met on 7/7/2007. At this meeting of the Selection Committee, apart from the President and Secretary of respondent no.2 Society and Principal of respondent no.3 College, Vaidya Goswami, who was nominated as Expert by the University, was present. The Representative of Director of Ayurved was not present though he had been nominated and informed of the date and place of the interview. Since respondent no.1 was the only candidate, who was interviewed, his name was recommended by the Selection Committee. The University had not approved the appointment of respondent no.1 and had questioned the selection procedure conducted in the absence of Representative of Director of Ayurved.
5. The respondent no.1 again preferred a writ petition, which was numbered as 1448/2008, before this Court, which was disposed of by order dated 30/4/2008 directing the concerned Authorities to consider the replies and decide the issue within three weeks. By letter dated 5/6/2008, the University did not approve the appointment of respondent no.1. The respondent no.1 again filed Writ Petition No.588/2009 before this Court, which was allowed to be withdrawn with liberty to respondent no.1 to approach the Grievance Committee. Accordingly, respondent no.1 preferred a representation before the Grievance Committee. The Grievance Committee submitted a report on 29/4/2010 holding that respondent no.1 did not have the requisite experience for appointment to the post of Professor and, therefore, respondent no.1's appointment could not be approved by the University. The Grievance Committee also found that the selection of the respondent no.1 was made by the Selection Committee, which met on 7/7/2007, in the absence of Director of Ayurved or his nominee and, therefore, in view of Government Resolutions dated 18/8/2004 and 3/1/2005, the selection made in the meeting of the Selection Committee itself was illegal. It appears that the recommendations of the Grievance Committee were accepted by the Maharashtra University of Health Science, which started exercising control on all affairs of the respondent no.3 College in the meantime.
6. Aggrieved thereby, respondent no.1 filed Writ Petition No.4339/2010 questioning recommendations of the Grievance Committee and decision of the Management Council accepting those recommendations. He also sought a declaration that his appointment as Professor in the subject of Sharir Rachna was liable to be approved as having been made in accordance with law. He had also sought other ancillary reliefs. This petition was allowed by the impugned judgment. The learned Judge held that the findings of the Grievance Committee and the University holding that the respondent no.1 did not possess requisite experience in the subject of Sharir Rachna were not legal and correct and were rather perverse and unsustainable. The learned Judge also held that the selection of the respondent no.1 in the meeting of Selection Committee dated 7/7/2007 was not vitiated in spite of absence of Director of Ayurved or his nominee as Member Secretary of the Selection Committee. As already stated, aggrieved thereby, the University has preferred this appeal.
7. We have heard learned Senior Counsel for the appellant University, the learned Counsel for respondent no.1 Shri Tripathi and the learned Counsel for respondent Nos.2 and 3 Management and College. The learned Senior Counsel for the appellant submitted that the respondent no.1 did not at all possess requisite experience for being appointed as Professor in the subject of Sharir Rachna since he had not been teaching that subject as an approved Teacher in the past. The learned Counsel for the respondents, on the other hand, submitted that the appointment of respondent no.1 as Reader to teach the subject of Sharir Rachna had been approved by Amravati University, which then had the requisite jurisdiction and, therefore, with effect from academic session 1996-97, respondent no.1 was working as a Reader in Sharir Rachna and so had the requisite experience. It was also pointed out that even prior to his appointment as Reader in Sharir Rachna, he was in fact working as a Lecturer in Sharir Rachna from 13/9/1991 and for this purpose, a certificate dated 16/3/2002 issued by the Principal of the College was sought to be relied on. On behalf of the appellant, it was pointed out from the certificate dated 24/3/2008 issued by the Principal of the College that respondent no.1 was in fact working in the Department of Sharir Kriya and that there was no reference to his working in the Department of Sharir Rachna at any point of time. It appears that this certificate dated 24/3/2008 was possibly not before the Grievance Committee though it was very much before the learned Single Judge. Since these two certificates dated 16/3/2002 and 24/3/2008 issued by the Principal of respondent no.3 College are contradictory, respondent Nos.2 and 3 were expected to explain as to how this contradiction occurred. It was sought to be explained that there is in fact no contradiction in the two certificates and the certificate dated 24/3/2008 in fact relates to only experience of respondent no.1 as an under graduate and post graduate Teacher.
8. It is significant to note that the certificate dated 16/3/2002 mentions that the respondent no.1 was working as a Lecturer in Sharir Kriya for under graduate classes from 9/7/1986 to 15/3/2002. He was shown to be working as a Lecturer in Sharir Rachna for post graduate classes from 13/9/1991 till 13/9/1996 and from 14/9/1996 respondent no.1 was shown to be working as a Reader in Sharir Rachna Department upto 15/3/2002, i.e. the day before the certificate was issued. Thus, for the period from 13/9/1991 to 15/3/2002, even according to this certificate, respondent no.1 was working simultaneously as Lecturer in Sharir Kriya Department for teaching under graduate classes and Lecturer/Reader in Sharir Rachna Department for teaching post graduate classes. In certificate dated 24/3/2008, as already pointed out, there is no reference to Sharir Rachna Department. It refers to services of respondent no.1 in Sharir Kriya Department. While date of commencement of service as 9/7/1986 is correct, he is shown to have been working as Lecturer till 30/9/1998, which date is not to be found in the certificate dated 16/3/2002. The certificate dated 24/3/2008 also records that the respondent no.1 was working as a Lecturer (Senior Grade) from 1/10/1998 till 19/3/2008. These dates also do not find any place in the certificate dated 16/3/2002, though at least the first of these dates, i.e. 1/10/1998, relates to the period before the date of issuance of certificate on 16/3/2002. It refers to post graduate teaching experience from 1/10/1991, which date also is missing in the certificate dated 16/3/2002. Apart from this, as already observed, there is no reference in the certificate dated 24/3/2008 about respondent no.1's appointment as Reader in Sharir Rachna.
9. In spite of best efforts, the learned Counsel for respondent no.1 or respondent Nos.2 and 3 could not show as to how these contradictions in the two certificates could be reconciled. The contradictions pertain not only to the subject, which the respondent no.1 taught, but also the period during which he was holding different posts. The learned Senior Counsel for the appellant submitted that since the certificates were issued to suit particular purpose, they do not reflect the factual position, indicating a casual approach on the part of the Management in issuing certificates to suit the purpose of respondent no.1. He submitted that the first certificate dated 16/3/2002 was obviously issued when respondent no.1 was aspiring to be selected for the post of Professor in Sharir Rachna whereas the certificate dated 24/3/2008 was issued when respondent no.1 sought appointment as Reader in Sharir Kriya, on finding that his appointment as Professor in Sharir Rachna was in doldrums. This seems to be the only plausible explanation for these two contradictory certificates issued by respondent Nos.2 and 3. Therefore, these certificates would not further the cause of respondent no.1 or respondent Nos.2 and 3 to show as to what experience respondent no.1 in fact had to claim appointment to the post of Professor of Sharir Rachna.
10. The learned Senior Counsel for the appellant submitted that the finding recorded by the learned Single Judge that there was no dispute about the fact that the respondent no.1 was actually working in Sharir Rachna Department since 1996-97 was factually incorrect. He submitted that since there was no post of Reader in the Department of Sharir Rachna, there was no question of the respondent no.1 being appointed to such post. The learned Senior Counsel wondered as to how certificate dated 16/3/2002 could be called a "contemporaneous document" issued at the time of selection of respondent no.1 for the post of Professor in the year 2007. The learned Senior Counsel pointed out that from the record of the College, it was clear that respondent no.1 was working on the post of Lecturer in Sharir Kriya for which approval had been granted. He wondered as to how respondent no.1 could simultaneously hold two posts of Lecturer in Sharir Kriya at under graduate level and Lecturer in Sharir Rachna at post graduate level. The learned Counsel for respondents sought to explain by submitting that the College was under-staffed and the respondent no.1 was in fact voluntarily working in Sharir Rachna Department as well, for which there was no grant. It was submitted that since factually respondent no.1 was working as a Teacher in Sharir Rachna Department as well, his experience could not be ignored only because his appointment in that Department had not been approved. The learned Counsel for respondents submitted that such was the prevalent practice as could be seen by letters dated 6/8/2011 and 9/7/2012 issued by the appellant University disapproving such practice. Therefore, till these letters were written, such practice could not be faulted and so the experience of respondent no.1 in Sharir Rachna Department when he simultaneously held a post as approved Teacher in Sharir Kriya could be counted.
11. We have carefully considered the rival submissions of the learned Counsel for the parties. As rightly pointed out by the learned Senior Counsel for the appellant, "Teacher" as defined in Clause 35 of Section 2 of the Maharashtra University of Health Sciences Act, 1998 (hereinafter referred to as "the Act"), means full time approved Lecturer, etc. Therefore, it was necessary for the respondent no.1 to show that he was an approved Lecturer in the subject concerned in order to claim that he had requisite teaching experience. Merely because Management sought to show that respondent no.1 was also taking some classes of Sharir Rachna, he could not be said to have requisite teaching experience for being considered for the post of Professor. It would not be possible to accept the contention that a Teacher volunteering his services should also be entitled to claim that he has requisite teaching experience in the discipline in which he has been offering his services, since a person could not hold two posts at the same time. In fact, asking a Teacher, who was being paid from the Treasury for a particular post, to discharge duties of another post in another Department and then to clothe him with requisite experience in other Department for consideration for further promotion would, to put it mildly, amount to trickery. Therefore, we are in respectful disagreement with the conclusion drawn by the learned Single Judge that respondent no.1 had the requisite experience of teaching in Sharir Rachna for being considered for the post of Professor.
12. The learned Senior Counsel for the appellant next submitted that the finding of the learned Single Judge that selection of respondent no.1 on 7/7/2007 was not vitiated in spite of absence of Director of Ayurved or his nominee in the meeting of the Selection Committee was not correct. He submitted that the State Government had issued a Government Resolution on 18/8/2004, which has been duly published in the official Gazette. This Government Resolution was issued pursuant to the decision of the Supreme Court in T.M.A. Pai Foundation and others vs. 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. As already observed, there is no dispute that in the meeting of the Selection Committee held on 7/7/2007, though representative of Director of Ayurved was nominated and also invited, he did not actually remain present. The learned Senior Counsel for the appellant submitted that in the absence of representative of Director of Ayurved, whose presence was made essential by the Government Resolution, the meeting itself was invalid as it did not have the essential quorum.
13. The learned Counsel for the respondents 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, which he was obliged to place before the Management Council for approval. It was submitted that 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. The learned Counsel for the respondents submitted that since this Direction has been issued in exercise of statutory powers of the Vice Chancellor under the Act, it would remain in force unless superseded by making Rules or framing Statute or Ordinance. It was submitted that the Government Resolution dated 18/8/2004 would have no force till Direction No.25 of 2001 was amended.
The learned Counsel for the respondents pointed out that the appellant University had itself brought to the notice of the State Government the anomaly in the quorum at the meeting of the Selection Committee. Sub-section (3) of Section 61 of the Act refers to Selection Committee and mode of appointment of Principals, Teachers and other employees of affiliated Colleges. The sub-section provides that "the Selection Committee and mode of appointment for Principals, Teachers and other employees of affiliated Colleges shall be such as may be prescribed." "Prescribed" as defined in Clause 25 of Section 2 of the Act means as prescribed by Statutes, Ordinances or Rules. In view of provisions of Section 16(8) of the Act, in the absence of such Statutes, etc., directions by the Vice Chancellor would regulate the procedure. By letter dated 24/2/2005, the appellant University had brought to the notice of the Government the necessity to amend subsection (3) of Section 61 of the Act. The Government had replied on 13/4/2005 that the necessary amendment would be carried out in due course. The learned Counsel submitted that till that amendment was carried out, Direction No.25 of 2001 was required to be followed by the Colleges and, therefore, it was rightly held by the learned Single Judge by referring to the correspondence that Government Resolutions dated 18/8/2004 and 3/1/2005 would not supersede Direction No.25 of 2001 and consequently, the meeting dated 7/7/2007 did not suffer from any deficiency in quorum due to absence of representative of Director of Ayurved.
14. The learned Senior Counsel for the appellant submitted that this contention is not correct and in fact, the Government had sufficient power to issue directions overriding Direction No.25 of 2001 about the Selection committee and quorum at the meeting of the Selection Committee. He submitted that Clause (ww) of Section 5 of the Act casts a duty on the University to comply with and carry out any directives issued by the Government from time to time with reference to powers, duties and responsibilities of the University referred to in the said Section. We have tried to find out from various Clauses of Section 5 of the Act the power, duty or responsibility of the University to control the procedure of selection of Teachers in the affiliated Colleges, but could find none. The learned Senior Counsel for the appellant also submitted that the State Government had such power under subsection (3) of Section 9 of the Act, which reads as under :
"(3) The Government may, in accordance with the provisions contained in this Act, for the purpose of securing and maintaining uniform standards, by notification in the Official Gazette, prescribe a Standard Code providing for the classification, manner and mode of selection and appointment, absorption of teachers and employees rendered surplus, reservation of posts in favour of members of the Scheduled Castes, Scheduled Tribes and Other Backward Classes, duties, workload, pay, allowances, post retirement benefits, other benefits, conduct and disciplinary matters and other conditions of service of the officers, teachers and other employees of the University and the teachers and other employees in the affiliated colleges and recognised institutions (other than those managed and maintained by the Government, Central Government and the local authorities). When such code is prescribed, the provisions made in the Code shall prevail and the provisions made in Statutes, Ordinances, Regulations and Rules made under this Act; for matters included in the Code shall, to the extent to which they are inconsistent with the provisions of the Code, be invalid."
The learned Senior Counsel for the appellant submitted that Government Resolution dated 18/8/2004 could be said to be issued in exercise of powers under this provision and relied on some judgments of the Supreme Court in support of his contention that it is not necessary to refer to the source of power in the order whereby the power is sought to be exercised. Therefore, according to the learned Senior Counsel, even if Government Resolution dated 18/8/2004 does not state that it had been issued in exercise of powers under sub-section (3) of Section 9 of the Act, it would still be permissible to seek the source of power from the said sub-section.
15. We have carefully considered this submission. There can be no doubt that reference to a wrong source or even absence of reference to source of power would itself be insufficient to invalidate the order passed. However, what the State Government seems to have done is that it has issued certain directions about constitution of Selection committee and its quorum. Sub-section (3) of Section 9 of the Act enables the State Government to prescribe a Standard Code. It would be difficult to characterize Government Resolution dated 18/8/2004 as even a small fraction of that Code. In our view, it would be incorrect to seek the source of power for issuing Government Resolution dated 18/8/2004 in sub-section (3) of Section 9 of the Act.
16. The learned Senior Counsel for the appellant next submitted that even if it is taken that the Government Resolution had to be issued because of the judgment of the Supreme Court in T.M.A. Pai Foundation's Case, the Government Resolution would supersede Direction No.25 of 2001 issued in exercise of powers under Section 16(8) of the Act by the Vice Chancellor, since it would be obligatory on the part of the State Government and all Authorities to ensure that directions of the Supreme Court are implemented. The learned Counsel for the respondents, on the other hand, submitted that even 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, according to them, 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.
17. In our view, 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. As rightly submitted by the learned Senior Counsel for the appellant, 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, in our view, 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 our 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.
18. Consequently, we allow the letters patent appeal and set aside the judgment dated 16/8/2011 of the learned Single Judge and dismiss the writ petition of respondent no.1. No order as to costs. At this stage, the learned Counsel for the original petitioner prays that this judgment may be kept in abeyance for six weeks since the original petitioner had been promoted provisionally subject to this letters patent appeal and he is holding the said post since one and half years.
Let this judgment be kept in abeyance for a period of four weeks.