2024:BHC-AS:50998-DB
Digitally signed
by ARUNA
ARUNA SANDEEP
SANDEEP TALWALKAR
TALWALKAR Date: 5.WP3884.2024.odt
2025.02.17
19:14:38 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3884 OF 2024
Shrimati Dr. Gaikwad Rajashri Nitin
@ Rajashri Prataprao Mohite.
Age : 51 years, Occu: Service,
R/o. 4, Sahyadri Housing Society,
Ajinkya Colony, Powai Naka,
Satara -415 501. … Petitioner.
Versus
1. The Deputy Secretary Affiliation
Department, T-1,
Shivaji University, Kolhapur.
2. Shivaji University, Kolhapur
Through its Vice Chancellor,
3. The Divisional Joint Director,
(Higher Education),
Kolhapur Region, Kolhapur.
4. The State of Maharashtra
Through Ministry of Education and
Higher Education, Mantralaya,
Mumbai.
5. Rayyat Sikshan Sanstha,
Satara, District Satara,
Through its Joint Secretary(Higher Edu.)
6. Yashwantrao Chavan Vidyalaya,
Pachwadi, Satara,
Through its Principal. … Respondents.
****
Mr. I.M. Khairdi, for the Petitioner.
Mr. Vikram N. Walawalkar a/w. Ms. Sayali Gangal & Ms. Madhura
Mulay, for Respondent Nos. 1 and 2-Shivaji University, Kolhapur.
Mr. Swapnil P. Kamble, AGP for Respondent Nos. 3 and 4/State.
Mr. Milind Deshmukh, for Respondent Nos. 5 & 6.
****
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CORAM : RAVINDRA V. GHUGE AND
ASHWIN D. BHOBE, JJ.
DATE : 10th FEBRUARY, 2025
ORAL JUDGMENT(Per RAVINDRA V. GHUGE, J) :
1. Leave to add prayer clause. Addition be carried out
forthwith.
2. Rule. Rule made returnable forthwith and heard finally with
the consent of the parties.
3. The Petitioner has put forth prayer clauses (B), (B-1), (B-2)
and (C), as under :
“(B) After perusing the legality, validity and proprietary of the
impugned order dated 08/11/2023 passed by the Respondent
No.1 herein, this Hon'ble Court be pleased to quash and set
aside the same and direct the Respondent No.1 to grant the
approval to the appointment of the Petitioner in Clock Hour
Basis (CHB) at Respondent No.6 College being run by the
Respondent No.5 Educational Trust.
B-1) This Hon'ble Court be pleased to direct
reinstatement in services of the Petitioner with R-6 College,
run by R-5 since from February 2024 with a further direction to
pay unpaid salaries for the period, worked by her institution.
B-2) This Hon'ble Court be further pleased to direct the
R-Authorities to condone the break of period of the month, in
each of the academic year & treat the Petitioner at continuous
in services for all the service benefits & retrial benefits
including updating the service Book & making payments
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thereof.
(C) This Hon'ble Court be pleased to issue Writ of
Mandamus and / or any other order, direction or writ in the
nature of Mandamus directing the Respondent No.1 to
forthwith release the salaries of the Petitioner since from
30/07/2023 along with interest at the rate of 6%.”
4. The dates and sequences of events are as under :
(a) The Petitioner belongs to the open category and she was
born on 29.7.1972.
(b) In 1992, the Petitioner passed her B.Com. Examination.
(c) In 1995, she passed her M.Com. Examination with 50%
marks and did not score the B+ class.
(d) In 2005 she applied pursuant to an advertisement and was
selected and appointed on Clock Hour Basis(CHB) as a lecturer in
100% grant-in-aid section with the L.B.S. College, Satara for a period of
11 months.
(e) Since the Petitioner’s selection was only for 11 months, she
again responded to a fresh advertisement in 2006 and was again
appointed in the same manner.
(f) In 2007, she applied for the M.Com Improvement
Examination with the Shivaji University, Kolhapur from where she had
acquired her B.Com. and M. Com. Degrees.
(g) She scored 54.6% marks in the said Improvement Exam and
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with grace marks, her percentage was 55.63.
(h) In April 2009, the Petitioner secured M.Phil qualification.
(i) In 2016, the Petitioner acquired her Ph.D.
(j) For the academic year 2012-2013, the Petitioner was
appointed for 11 months at Deor College, Satara.
(k) On 13.7.2014, the Petitioner was appointed on CHB at the
Respondent No. 6 College namely Yashwantrao Chavan Vidyalaya,
Satara, for 11 months. The said appointment was approved every year
and she continued for 11 months till 2022-2023.
(l) On 3.7.2023, she was again appointed for 11 months on
CHB with the same college. A proposal for seeking approval to her
appointment was forwarded and the same was rejected on 8.11.2023 on
the ground that the Petitioner did not have 55% marks/B+ class, with
reference to the M. Com. Degree. It is, thus, obvious from the above that
the whole issue turns upon whether the Petitioner had B+ Class for the
M. Com. Degree.
5. The learned Advocate appearing on behalf of the
Respondent No. 2 Shivaji University has vehemently opposed this
Petition. His contentions can be summarized as under :
(a) The Petitioner’s M.Com. result would indicate that she had
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scored 54.6% marks in her Improvement Exam.
(b) In order to enable her to have the B+ class, the University
added grace marks to her total by virtue of Ordinance 91, which
permitted grace marks for getting a higher class.
(c) The Petitioner’s marks tally is 437 out of 800 for Part-I and
Part-II i.e. 210 out of 400 for Part-I and 227 of out of 400 for Part-II. The
percentage was 54.625%.
(d) 8 grace marks were added to the tally of the Petitioner’s
score in the Improvement Exam and her total became 445 out of 800
which is 55.63%.
(d) It is specifically mentioned in the mark list that Ordinance
91 was invoked to give the Petitioner the B+ class.
6. The learned Advocate for the University has strenuously
relied upon Ordinance 91 and the two proviso there below. Ordinance
91 reads as under :
“0.91: (U.0.02): Grace Marks for getting higher class:
A candidate who passes in all subjects and heads of passing in
the examination without the benefit of either gracing or
condonation rules and whose total number of marks falls short
for securing second class higher second class or first class by
marks not more than 1% of the aggregate marks of that
examination or up to 10 marks. Whichever is less shall be given
the required marks to get the next higher class of grace as the
case may be.
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Provided that benefits of above mentioned grace marks shall not
be given, if the candidate fails to secure necessary passing marks
in the aggregate head of passing also if prescribed in the
examination concerned.
Provided further that benefits of above mentioned grace marks
shall be given to the candidate for such examination/s only for
which provision of award of class has been prescribed.
Condonation deficiency of marks be shown in the statement of
marks in the form of asterisk and Ordinance number, Provided
that this condonation of marks is concurrent with the rules and
guidelines of professional statutory bodies at the All India level
such as AICTE, MCI, Bar Council, CCIM, ССІН, NCTE etc,”
7. The learned Advocate for the University, therefore, submits
that when it came to a class to be awarded, it cannot be overlooked that
the Petitioner had not scored 55% marks in the Improvement Exam so as
to qualification for the B+ class. On instructions, reliance is placed on
the second proviso below Ordinance 91 reproduced above, to contend
that the grace marks would be given to a candidate for such examination
only for which provision of award or class, has been prescribed and,
therefore, it is the belief of the University that the addition of such grace
marks is only to enable the Petitioner to appear for further examinations.
8. We are unable to accept the vehement submissions of the
learned Counsel on behalf of the University, that the grace marks are
given only for the purpose of letting a candidate appear for further
examinations for which a class is necessary. We would revisit the second
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proviso for this purpose and reproduce it once again herein below:
“Provided further that benefits of above mentioned grace marks
shall be given to the candidate for such examination/s only for
which provision of award of class has been prescribed.”
9. We do not find any ambiguity in the above reproduced
proviso, in as much as, there is hardly any vagueness or confusion so as
to require an interpretation. There is no dispute that Improvement
Examination to which the Petitioner had applied for, is provided with
grace marks since the award of class is prescribed for the M.Com.
Examination. The proviso plainly indicates that the benefit of grace
marks would be given to a candidate who has appeared for such
examination to which the proviso of awarding a class is prescribed.
10. When awarding of a Class like B+, First Class and
Distinction, is permissible for the M. Com. Examination, the Petitioner
was given the said advantage by the University itself. This Petition is not
filed for demanding grace marks. The said grace marks have already
been granted to the Petitioner as long ago as in 2007 and the reason for
which she is before this Court is for voicing a grievance, as to, how far
can she be continued on 11 months CHB appointments, which
commenced from 2005 onwards.
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11. The grievance voiced by the Petitioner is out of her anxiety,
which is not misplaced. The learned Counsel for the University has
vehemently canvassed that the G.R. dated 8.3.2019, does not permit
grace marks to be used for granting a CLASS to a candidate, in view of
Clause 4.4 and 4.5, which read as under :
4.4. A minimum of 55% marks (or an equivalent grade in a
point-scale, wherever the grading system is followed) at the
Master's level shall be the essential qualification for direct
recruitment of teachers and other equivalent cadres at any level.
I. A relaxation of 5% shall be allowed at the
Bachelor's as well as at the Master's level for the candidates
belonging to Scheduled Caste/Scheduled Tribe/ Other Backward
Classes (OBC) (Non-creamy Layer)/Differently-abled ((a)
Blindness and low vision; (b) Deaf and Hard of Hearing; (c)
Locomotor disability including cerebral palsy, leprosy cured,
dwarfism, acid-attack victims and muscular dystrophy; (d)
Autism, intellectual disability, specific learning disability and
mental illness; (e) Multiple disabilities from amongst
persons under (a) to (d) including deaf- blindness) for the
purpose of eligibility and assessing good academic record for
direct recruitment. The eligibility marks of 55% marks (or an
equivalent grade in a point scale wherever the grading system is
followed) and the relaxation of 5% to the categories mentioned
above are permissible, based only on the qualifying marks without
including any grace mark procedure.
4.5. A relaxation of 5% shall be provided, (from 55% to
50% of the marks) to the Ph.D. Degree holders who have obtained
their Master's Degree prior to19 September, 1991.
12. It is, thus, apparent that a minimum of 55% marks or an
equivalent grade in a point scale at the Masters level is declared to be an
essential qualification for recruitment of teachers and other equivalent
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cadres at any level. Sub-clause I below 4.4. pertains to relaxation of 5%.
13. The interpretation of University is that the last sentence
below 4.4 (I), beginning with the words “The eligibility marks……...
without including any grace marks”, have to be read with 4.4 which
indicates a minimum of 55% marks as an essential qualification for
direct recruitment of teachers and, therefore, a teacher who has
outrightly scored 55% marks, alone will be considered for direct
recruitment and not by including the grace marks.
14. The Petitioner is before us with a grievance that after she
secured B+ in 2007, she was still continued on 11 months CHB. She
tolerated such engagement pattern only because she was in dire need of
employment and did not have a bargaining power. She had no option,
but to keep silent and accept such appointment for the fear of losing
employment and today at the age of 52 years, she is not engaged for the
11 months tenure for the academic year 2024-2025, only because the
G.R. dated 8.3.2019 was retrospectively made applicable by the
University, having been adopted vide Order Reference No. 402, dated
2.4.2019. The said G.R. dated 8.3.2019, is in relation to the notification
dated 18.7.2018, issued by the University Grant Commission.
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15. We find from the Ordinance 91 that the purpose for which
it was introduced was only to grant such quantum of grace marks to a
candidate, who was falling short of a particular class. The case before us
is not in connection with a candidate who had failed and the grace marks
were added only to ensure that he passed. Because the present case was
within the ambit of Ordinance 91, that the grace marks were added up
only to enable the Petitioner to obtain a particular class. Had the
Petitioner been slightly short of 75%, the Ordinance 91.1 permitted
addition of grace marks to give him the distinction class. The whole
object of addition of such grace marks is to bring the candidate within a
particular class on the basis of which he can obtain employment.
16. It is logical to interpret this Ordinance the way we have in
the above paragraph, for the reasons that it would purposeless if the class
is made available to a candidate by addition of grace marks, and such
class is made useless when it came to seeking employment. A second
class is an indication of a candidate having scored 55% marks. In order
to avoid using the words like “Third Class”, “Second Class”, the word
used is “B+” instead of Second class. This B+ qualification essentially
indicates the score of 55% and, therefore, in some advertisement, some
Institutions use the word “55%” and some use the word “B+”. Both
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mean the same.
17. The Petitioner has been working on CHB since 2007, after
she received her marks list post the Improvement Examination. Her
final marks list today indicates that she has scored 55.63% marks in the
M.Com. course having taken her Improvement Examination and since
grace marks were added to her tally. As per Ordinance 91, she was given
8 grace marks and her final score, in percentage, is 55.63 and going by
the class, she had achieved the second class or the B+ class.
18. We have heard the learned Advocates on the Principle of
‘Reading Down’. The learned Advocate for the Petitioner submits that
Ordinance 91 did permit candidates to use the particular percentage like
55% (B+ or Second Class) or 60% (First Class) for the purposes of
seeking employment. However, by the G.R. dated 8.3.2019, which is on
the basis of the UGC Recommendation in the light of the 7 th Central Pay
Commission and UGC Regulations on minimum qualifications for
appointment of teachers and other academic staff, that clause 4.4 was
introduced. According to him, the benefit that is extended by Ordinance
91, is sought to be taken away by Clause 4.4 of the G.R.
19. On the query of the Court as to whether we should invoke
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the Principle of ‘Reading down’, the learned Advocate for the University
submits that there are no such pleadings, there is no specific prayer with
regard to the Clause 4.4 and that, the said principle may not be invoked
at this stage. If any specific challenge to the sustainability of the clause
4.4 is brought before this Court in a substantive petition, the Court may
consider the said issue.
20. The learned Advocate for the Petitioner submits that since
she has been working on 11 months since the academic 2007-2008, she
is seeking confirmation in employment and for the said purpose, she
prays for reinstatement in the service. The Petitioner has been
disengaged from the academic year 2024-2025 and it is only for this
period of 11 months that she is not in employment. She is willing to
waive the entire salary for this period of 11 months, though she prays for
continuity of service from the academic year 2007-2008.
21. In the light of the above, we find that it has been unfair that
the Petitioner has been kept on Clock Hour Basis(CHB) ever since the
academic year 2007-2008. For the last 17 years, she was in employment
on 11 months CHB. At the age of 52 years, she would not secure
employment in any institution and she would suffer an irreparable harm,
grave prejudice and manifest inconvenience. Her entire career would be
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destroyed, despite she having acquired M. Phil. and Ph.D. She further
instructs her learned Advocate (the Petitioner is present in the Court),
that she would not seek salary benefits for the academic year 2024-
2025. She may be granted reinstatement in service for the academic year
June, 2025-2026 on wards. Continuity may be granted to her since she
has joined in 2007, ignoring her first joining in 2005 since she did not
have B+/55% marks as in 2007. The benefit available to her under
Ordinance 91, cannot be taken away by the GR subsequently introduced
by the State. The said GR will not be made applicable retrospectively.
22. In view of the above, this Writ Petition is partly allowed.
The impugned order dated 08.01.2023, refusing approval to the
appointment of the Petitioner, is quashed and set aside. The Petitioner
shall be reinstated in service by Respondent Nos. 5 and 6, from the
academic year June 2025 on wards. The competent authority shall grant
her ‘Approval’ within 30 days. Continuity in service is granted to her and
the artificial breaks of one month in each academic year, beginning from
2007 on wards, until her disengagement, stand condoned and bridged.
Since the Petitioner has not worked for academic year 2023-2024 and
since she has made a statement that salary would be not claimed, prayer
clause C is not being considered.
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23. On her superannuation at the age of 58 years or as the case
may be, continuity of service from 2007 onwards till her superannuation,
would be granted and the said period would be reckoned with for the
purpose of calculating her retiral/service benefits. The unpaid salary of
the Petitioner till date of her disengagement from February, 2024 would
be paid by the Management.
24. Rule is made partly absolute in the above terms.
25. Needless to state, in the event of any specific challenge to
the G.R. dated 8.3.2019 as being contrary to Ordinance 91, in a
substantive petition, the said issue is left open to be considered on its
own merits.
(ASHWIN D. BHOBE, J.) (RAVINDRA V. GHUGE, J.)
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