1] Rule. Rule returnable forthwith. Heard the learned Counsel for the rival parties by consent.
2] The petitioner has approached this Court for a direction to the respondent No.1 to forthwith issue an appointment order in the petitioner's favour for the post of Reader in the department of Computer Science in Rashtrasant Tukdoji Maharaj Nagpur University in pursuance of the selection process initiated under advertisement dated 13.7.2007.
3] In brief, the petitioner's case is that the petitioner appeared for interview in pursuance of the aforesaid advertisement for the said post and was selected by the Selection Committee. At selection, one Shri Pradip Kawaduji Bute was shown at serial no.1 and the petitioner was shown at serial no.2. Eventually, the said Bute's appointment was challenged before the Hon'ble Chancellor of the Nagpur University, who on 7.8.2009 held that his appointment was not legal and directed the Vice Chancellor of the respondent no.1 University to terminate his services as a Reader after giving him one month's notice. Bute's Writ Petition against the order of the Hon'ble Chancellor was dismissed.
4] The short contention of the petitioner is that since he was at serial no.2 in the select list, Bute's appointment who was at serial no.1 having been set aside, he should be appointed to the said post without fresh selection. It is, therefore, necessary to examine the relevant provision under which the selections and appointments by the University are made. Section 76 to the extent it is relevant reads as follows :
"76. Selection and appointment of university teachers:
(1) Subject to the provisions of this Act, Statutes and Ordinances, the Vice Chancellor shall, till the University Grants Commission's scheme or recruitment becomes operative, appoint according to the order of merit and recommendations made by the selection committee, a university teacher.
(2) .................
(3) .................
(4) .................
(5) .................
(6) .................
(7) If, on a petition by any person directly affected or suo motu, the Chancellor, after making, or having made such inquiries or obtaining or having obtained such explanations, including explanations from the teachers whose appointments are likely to be affected, as may be or may have been necessary, is satisfied that the appointment of a teacher of the university, made by any authority or officer of the university at any time was not in accordance with the law at the time in force, the Chancellor, may, by order, notwithstanding anything contained in the contract relating to the conditions of service of such teacher, direct the Vice Chancellor to terminate his appointment after giving him one month's notice or one month's salary in lieu of such notice, and the Vice Chancellor shall forthwith comply and take steps for a fresh selections to be made. The person whose appointment has been so terminated shall be eligible to apply again for the same post." The question is, when an appointment made in pursuance of a selection when set aside by the Chancellor of the University, the next candidate on the selection list is entitled to be appointed without a fresh selection ?
5] Shri S.P. Bhandarkar, the learned Counsel for the petitioner, relied on Section 76(1) in support of the proposition that the next person should be appointed. According to the learned Counsel, the subsection requires the appointment to be made according to the order of merit and, therefore, it is necessary for the Vice Chancellor to make an appointment of the next person in order of merit after the appointment of the earlier candidate higher in merit is set aside.
6] We see no merit in this contention since Section 76(1) of the Act which undoubtedly requires appointments to be made according to the order of merit and recommendation made by the Selection Committee, applies to the initial appointment only and not to a situation where the said appointment is set aside by an authority and a fresh appointment is made.
7] We find that, on the other hand, subsection (7) provides the modus operandi to be employed after the services of a teacher are terminated in pursuance of the direction of the Chancellor. The prescribed procedure is that where a Chancellor directs the Vice Chancellor to terminate "the Vice Chancellor shall forthwith comply and take steps for a fresh selection to be made". This clearly indicates that it is not permissible to appoint the teacher next in the order of merit and that subsection (1) applies to the initial appointment.
8] Shri S.P. Bhandarkar, the learned Counsel for the petitioner, relied on a decision of this Court in Syed Iftekhar Ali .vs. Vice Chancellor, Nagpur University & another : Writ Petition No. 588/86 decided on 26.6.1987 in support of the contention of the petitioner. However, that decision is not rendered under the existing Act and can be of no assistance to the petitioner. In the circumstances, we see no merit in the petition, which is dismissed. 9] We find from the facts of the case that Bute's services were terminated by the University on 14.9.2009 in pursuance of the direction of the Chancellor dated 7.8.2009. The University does not appear to have issued an advertisement for making a fresh selection till date. It is highly improper for the University not to have done so. Shri S.P. Bhandarkar, the learned Counsel for the petitioner, submitted that this is due to the fact that the Vice Chancellor of the respondent University who was holding charge till July, 2010 is the same Vice Chancellor against whom Hon'ble Chancellor had passed severe strictures while setting aside Bute's appointment. According to Shri S.P. Bhandarkar, the learned Counsel for the petitioner, it is purely due to this fact that steps have not been taken. The petitioner has not joined the said Vice Chancellor as a party by name. Hence, we are not inclined to go into the allegations of mala fide inaction. We, however, consider it appropriate to direct that immediate steps should be taken to initiate and complete the selection process at the earliest and not later than six months from today. 10] With the above observations, the Writ Petition stands dismissed. Rule stands discharged with no order as to costs.