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Madhya Pradesh High Court · body

2024 DIGILAW 623 (MP)

Laxmi Narayan Arya (Dr. ) v. Vice Chancellor

2024-09-13

ANIL VERMA

body2024
ORDER 1. Petitioner has preferred this petition under Article 226 of the Constitution of India for seeking following reliefs:- It is therefore humbly prayed that the petition may kindly be allowed and the suitable Writ, order or direction may kindly be issued and the impugned advertisement Annexure P/1 dated 9.3.24 passed by respondent no. 3 and process of appointment for the post of Director, Physical Education, declaring it as nonteaching post may kindly be quashed and respondents may kindly be directed to issue fresh advertisement for the post of Director, Physical Education as teaching post in pursuance to the decision of the co-ordination committee Anx. P/3 in the interest of justice. 2. Learned counsel for the petitioner submits that brief facts of the case are that the petitioner is working on the post of Sports Officer at Dr. B.S. Government College, Hazeera, Gwalior and the petitioner is having qualification of Ph.D. and other research experience, U.G. level teaching experience for three years and fulfilled all the norms of UGC for the post of Director, Physical Education. Respondent was constituted under Jiwaji University Act, 1963 (in short "Act, 1963"). After commencement of M.P. Vishwavidyalala Adhiniyam, 1973 (in short "Adhiniyam, 1973"), the Act, 1963 was repealed and presently all conduct of business, appointments and further regulations were controlled by the Adhiniyam, 1973. Earlier, post of Director, Physical Education was notified as post of Officer of University as per the Statute 20 framed by the Jiwaji University, but respondent has wrongly been notified the aforesaid post as a non-teaching post because the courses of physical education are being taught. Coordination Committee has decided to remove the post of Director, Physical Education thereby amending Statute 20 and included it as a teaching post. Under such situation, the impugned advertisement is in contravention of the Adhiniyam, 1973. Respondents has conducted the recruitment and selection process against the Rules. Therefore, the respondents' act for advertising the aforesaid post as a non-teaching post is illegal, arbitrary and contrary to the decision taken by the Coordination Committee. In view of the provisions of sections 34, 36 of the Adhiniyam, 1973, the resolution passed by the Coordination Committee is binding upon the respondents. Due to the wrong process of selection, legal rights of the petitioner is being violated. Being aggrieved by the same, this petition has been filed. 3. In view of the provisions of sections 34, 36 of the Adhiniyam, 1973, the resolution passed by the Coordination Committee is binding upon the respondents. Due to the wrong process of selection, legal rights of the petitioner is being violated. Being aggrieved by the same, this petition has been filed. 3. Per contra, learned counsel for the respondents opposed the prayer by submitting in their return that the petitioner has already participated in the recruitment process and between the process of finalization of the recruitment process, the petitioner has challenged the advertisement, in which he himself has applied for. He accepted the condition of the said advertisement, therefore, he is estopped from challenging the same. Hence, this petition is not maintainable. 4. Apart from the above, the petitioner has already appeared in the examination and he has not succeeded and he has failed in the said examination, therefore, the petitioner has no locus standi to pursue the matter and this petition deserves to be dismissed being rendered infructuous. The resolution passed by Coordination Committee was never included in the Statute of Act of 1963, which belongs to the respondents' University. The Coordination Committee could never culminate into the amendment of the relevant statute so as to bringing the post of Director, Physical Education under the teaching cadre. Challenge made by the petitioner is highly misconceived and is liable to be rejected at the threshold. 5. Both the parties heard at length and perused the entire record filed by them. 6. Section 4(xx) of the Adhiniyam, 1973 provides the definition of teaching, which reads as under:- "4(xx) Teachers of the University means Professors, Readers, Lecturers and such other persons as may be appointed for imparting instructions or conducting research, with the approval of the Academic Council in the University or the College of Institution maintained or recognised by the University;" 7. Learned counsel for the petitioner submits that Coordination Committee of respondents in their 62nd meeting have decided to amend the Statute 20 and removed the post of Director, Physical Education from the Statute 20 and included it in the teaching cadre under Section 49 of the Adhiniyam, 1973 (Annexure P-3). Although the respondents have an objection that the aforesaid resolution was never included in the statute of the Act, 1963. Petitioner placed reliance upon the judgment of the Hon'ble apex Court passed in the case of Dr. Although the respondents have an objection that the aforesaid resolution was never included in the statute of the Act, 1963. Petitioner placed reliance upon the judgment of the Hon'ble apex Court passed in the case of Dr. R.S. Sohane v. State of Madhya Pradesh and others reported in AIR (Online) 2019 SC 2327 (Annexure P-6), whereby it has been held in para 12 that:- "12. Section 36 of the 1973 Adhiniyam empowers the Coordination Committee to prepare the First Statutes of the Universities. Power is conferred on the Coordination Committee to amend or repeal any Statute and to draft a Statute proposed by the Executive Council of the University. The Coordination Committee is competent to frame Statutes on its own motion. In case, a draft is proposed by the Executive Council, the Coordination Committee may approve such a draft and pass the Statute. If the Coordination Committee is not satisfied with the draft, it can reject or return the draft to the Executive Council for reconsideration. The recommendations made by the Executive Council shall, thereafter, be considered by the Coordination Committee which has the power to either approve or reject them. The Statute shall become effective from the date specified by the Coordination Committee after its approval." 8. Learned counsel for petitioner also relied upon the judgment of the apex Court in the case of P.C. Modi v. The Jawaharlal Nehru Vishwavidyalaya and another reported in 2023 INSC 1067 , in which it has been held that: "6.............and it was held that the duties being discharged by him as a Physical Director brought him within the definition of a “teacher” and therefore, he was entitled to continue in service till he completed 60 years of age........" 9. A coordinate Bench of this Court in the case of Dr. Mohd. Iqbal Quraishi Vs. His Excellency, Kuladhipati of DAVV reported in 2015 (1) MPLJ 8 has already dealt with the same issue. Para 11 of the aforesaid judgment reads as under:- "11. In the light of the aforesaid judgment, as the petitioner was appointed on the post of Director of Physical Education, keeping in view the statutory provisions as contained under the Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973 and the statute, ordinance framed thereunder, by no stretch of imagination can be treated as a teacher. In the light of the aforesaid judgment, as the petitioner was appointed on the post of Director of Physical Education, keeping in view the statutory provisions as contained under the Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973 and the statute, ordinance framed thereunder, by no stretch of imagination can be treated as a teacher. He is holding the post of Director and has to retire as as a Director not as a Teacher. The writ petition is, therefore, accordingly dismissed." 10. In view of the law laid down by the coordinate Bench of this Court in the case of Dr. Mohd. Iqbal Quraishi (supra), in which it has been held that the post of Director of Physical Education keeping in view the statutory provisions as contained in the Adhiniyam, 1973 cannot be treated as a Teacher. The same has been decided by Hon'ble apex Court in the case of State of M.P. and others v. Ramesh Chandra Bajpai reported in (2009) 13 SCC 635 , and University Grants Commission and another v. Neha Anil Bobde (Gadekar) reported in (2013) 10 SCC 519 , therefore, Director of Physical Education, by no stretch of imagination can be treated as a Teacher keeping in view of the statutory provisions governing the field. Apart from the above, the petitioner has already participated in the recruitment process. In the said advertisement (Annexure P-1), heading is that "Advertisement for Non-Teaching Post". Respondent has filed the closed result of aforesaid recruitment. From perusal of the result, it appears that the petitioner has failed in the recruitment process, therefore, he has lost his locus standi to challenge the impugned advertisement and on this ground, petition also deserves to be dismissed. 11. Accordingly, this petition sans merits and substances and is hereby dismissed.