2023:BHC-AS:38996-DB

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.4920 OF 2023

Dhananjay Bhagwandas Devi, ]
Age : 58 years, Occ. : Service, ]
R/at Plot No.23, Omkar Bungalow, ]
Rangole Colony, Gendamal, Shahupuri, ]
Satara – 415 002. ] .. Petitioner
Versus
1. State of Maharashtra, ]
Through the Principal Secretary, ]
Higher & Technical Education, ]
Mantralaya, Mumbai 400 032. ]
2. The Director of Technical Education, ]
Maharashtra State, ]
3 Mahapalika Marg, Opp. Metro Cinema, ]
Dhobi Talao, Mumbai 400 001. ]
3. The Joint Director of Technical Education, ]
412-E, Bahirat Patil Chowk, Shivajinagar, ]
Pune – 411 016. ]
4. The Secretary, ]
Rayat Shikshan Sanstha, Satara, ]
Karmaveer Samadhi Parisar, ]
Near Powai Naka, Dist. Satara 415 001. ]
5. The Principal, ]
Karmaveer Bhaurao Patil College of Engineering, ]
Sadar Bazar Camp, Satara 415 001. ]
6. The In-charge Principal, ]
Karmaveer Bhaurao Patil Polytechnic, ]
At Panmalewadi, Post Varye, Satara 415 015. ]
7. The Registrar, ]
Dr. Babasaheb Ambedkar Technological University, ]
Lonere, Tal. : Mangaon, Dist. Raigad 402 103. ]

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8. The Chairman / Member Secretary, ]
All India Council of Technical Education, ]
G5P3+8PH, JNU Campus, Nelson Mandela Marg, ]
Vasant Kunj, New Delhi – 110 070. ] .. Respondents

ALONG WITH
WRIT PETITION NO.4921 OF 2023
Dilip Sampatti Aldar ]
Occ. : Service, ]
R/at F.F.11, Krishna Residency, Plot No.1+2, ]
Survey No.165/3A, Shahu Nagar, Godoli, Satara 415 101 ] .. Petitioner
Versus
1. State of Maharashtra, ]
Through the Principal Secretary, ]
Higher & Technical Education, ]
Mantralaya, Mumbai 400 032. ]
2. The Director of Technical Education, ]
Maharashtra State, ]
3 Mahapalika Marg, Opp. Metro Cinema, ]
Dhobi Talao, Mumbai 400 001. ]
3. The Joint Director of Technical Education, ]
412-E, Bahirat Patil Chowk, Shivajinagar, ]
Pune – 411 016. ]
4. The Secretary, ]
Rayat Shikshan Sanstha, Satara, ]
Karmaveer Samadhi Parisar, ]
Near Powai Naka, Dist. Satara 415 001. ]
5. The Principal, ]
Karmaveer Bhaurao Patil College of Engineering, ]
Sadar Bazar Camp, Satara 415 001. ]
6. The In-charge Principal, ]
Karmaveer Bhaurao Patil Polytechnic, ]
At Panmalewadi, Post Varye, Satara 415 015. ]

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7. The Registrar, ]
Dr. Babasaheb Ambedkar Technological University, ]
Lonere, Tal. : Mangaon, Dist. Raigad 402 103. ]
8. The Chairman / Member Secretary, ]
All India Council of Technical Education, ]
G5P3+8PH, JNU Campus, Nelson Mandela Marg, ]
Vasant Kunj, New Delhi – 110 070. ] .. Respondents

Mr. C.G. Gavnekar, with Mr. Ashutosh Gavnekar and Mr. Rohit Parab, for the
Petitioners in both the Petitions.
Mr. V.M. Mali, AGP for the Respondent-State.
Mr. T.R. Yadav, with Ms. Divya Wadekar, i/by Mr. Avinash Jalisatgi, for
Respondent No.7.
Ms. Anjali Helekar for Respondent No.8-AICTE.
Mr. N.V. Bandiwadekar, Sr. Advocate, with Mr. Milind Deshmukh, for
Respondent Nos.4 to 6.

CORAM : A.S. CHANDURKAR & FIRDOSH P. POONIWALLA, JJ

The date on which arguments were heard : 30 TH NOVEMBER, 2023.

The date on which Judgment is pronounced : 22 ND DECEMBER 2023.

JUDGMENT : [ Per A.S. Chandurkar, J. ]

1. Rule. Rule made returnable forthwith and heard finally by consent of

learned counsel for the parties.

2. Since similar issues arising in these Writ Petitions, they are being decided

together by this common judgment. Both the petitioners came to be appointed

as Associate Professors at the College of Engineering and Polytechnic that is

being conducted by the 4th respondent – Society. By an order dated 20 th

February 2023, both the petitioners were transferred from Karmaveer Bhaurao
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Patil College of Engineering, Satara to Karmaveer Bhaurao Patil Polytechnic,

Varye, Panmalewadi, Satara on administrative grounds. The petitioners are

aggrieved by the said order of transfer principally on the ground that the

College of Engineering, where they were serving as Associate Professors, is

affiliated to the 8th respondent – All India Council of Technical Education

(AICTE), while the college where they have been so transferred is a Polytechnic

College, that falls within the purview of the 2 nd respondent – Director of

Technical Education and is recognized as a “School” under Section 2(24) of the

Maharashtra Employees of Private Schools (Conditions of Service) Regulation

Act, 1977. The transfer is thus not on an equivalent post. During pendency of

the Writ Petitions, the services of both the petitioners came to be placed under

suspension pending enquiry by the orders dated 2 nd May 2023. By amending

the Writ Petitions, the petitioners seek to raise a challenge to the orders of

suspension.

3. Mr. C.G. Gavnekar, learned counsel for the petitioners raised two fold

contentions. Insofar as the orders of transfer are concerned, it was submitted

that as the petitioners were serving on the post of Associate Professor at the

College of Engineering and Polytechnic, Satara, their services were liable to be

transferred at any of the Sanstha’s colleges. This would mean that the

petitioners’ transfer could be effected on an equivalent post in any college

where such posts of Associate Professor were available. Since the impugned

orders of transfer require the petitioners to discharge duties at the Polytechnic

College, which is a “school”, under Section 2(24) of the Act of 1977, on a post

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that was not equivalent, the orders of transfer are liable to be set aside. The

justification sought to be given by the Management that the orders of transfer

were effected in accordance with the terms of appointment of the petitioners,

cannot be accepted. Referring to paragraph 5 of the affidavit-in-reply filed on

behalf of the Society, it was pointed out that the petitioners’ transfers were

permissible at any of the colleges run by the Society and not at any school run

by it. On this count, it was submitted that the orders of transfer were liable to be

set aside.

. As regards the orders of suspension dated 2 nd May 2023, it was submitted

that the same were issued in exercise of vindictive power by the Society. Merely

because the petitioners had made certain complaints and were protesting

against the manner in which the affairs of the college were being conducted,

they had been placed under suspension. Though reliance was placed on Clause

10.66 of the Statutes for Classification, Appointments and Governing the Terms

and Conditions of Service of Teachers in Affiliated Colleges and Recognized

Institutions (for short, “the Statutes”), it was clear that the suspension of the

petitioners was not justified in the facts of the present case. Period of more than

90 days had expired since the petitioners were placed under suspension and on

this count too, this Court ought to interfere in exercise of writ jurisdiction.

4. It was further submitted that there was no alternate remedy available to

the petitioners to raise their grievances as sought to be raised in the Writ

Petitions. The Engineering College was affiliated to Dr. Babasaheb Ambedkar

Technological University and no Grievance Committee had been constituted, as

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required by Section 86 of the Dr. Babasaheb Ambedkar Technological

University Act, 2014 (for short, “the Act of 2014”). The Grievance Redressal Cell

referred to by the Society was not similar to the one required to be constituted

under Section 86 of the Act of 2014. Reference in this regard was made to the

order passed in Writ Petition No.2292 of 2023 (Chandrakant S/o. Gundiba

Katwate Vs. The Registrar, Dr. Babasaheb Ambedkar Technological University

and Ors.), dated 14th September 2023, to urge that the constitution of the

Grievance Redressal Cell pursuant to the Notification dated 11 th September

2023 issued by Dr. Babasaheb Ambedkar Technological University, Lonere-

Raigad, (for short, “the University”), did not amount to constituting Grievance

Redressal Cell as required by Section 86 of the Act of 2014. Hence, there being

no other efficacious remedy, the petitioners had approached this Court.

5. The aforesaid submissions were opposed by Mr. N.V. Bandiwadekar,

learned Senior Advocate for the Society. According to him, in the orders of

appointment issued to both the petitioners, a specific condition of service was

incorporated stating that the services of the petitioners were transferable to any

of the Sanstha’s colleges. By virtue of Resolution dated 16 th February 2023, the

services of the petitioners were transferred and it was made clear therein that

the petitioners would continue to receive the same pay scale that they were

receiving prior to the order of transfer. Since no financial loss was being caused

to the petitioners and transfer being an incident of service, there was no reason

to interfere with the order of transfer.

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. As regards the orders of suspension, it was submitted that on 23 rd

February 2023, the Society had issued show cause notices to both the

petitioners seeking their explanation as regards their unacceptable conduct. The

show cause notices were replied by both the petitioners and since such reply

was not found satisfactory, it was resolved to hold a departmental enquiry

against the petitioners. For that reason, they were placed under suspension by

the orders dated 2nd May 2023. The learned Senior Advocate referred to Clause

10.60 of the Statutes to submit that on the allegations of misconduct,

disciplinary proceedings were being held. The orders of suspension having been

passed in accordance with Clause 10.66 of the Statutes, there was no reason to

interfere with the same. There being a power of suspension with the Society, the

same had been exercised in the overall interest of administration of the colleges

run by the Society. It was, therefore, submitted that there was no case made out

by the petitioners to interfere in exercise of writ jurisdiction.

6. We have heard the learned counsel for the parties and with their

assistance, we have also perused the documents on record. We have thereafter

given due consideration to their respective submissions. At the outset, we may

consider the objection raised by the learned Senior Advocate for the Society that

under Section 86 of the Act of 2014, a statutory remedy of approaching the

Grievance Committee is available to the petitioners. In this regard, reference

can be made to the affidavit-in-reply filed on behalf of the 7 th respondent –

Registrar of the University. In the said affidavit, reference has been made to the

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Notification dated 11th September 2023 seeking to constitute a Grievance

Redressal Cell under Section 2(23), read with Section 86 of the Act of 2014. It

has been further stated that this Notification was the subject matter of

consideration by the Division Bench in Chandrakant S/o. Gundiba Katwate

(supra) and by the order dated 14th September 2023, it has been held that the

Grievance Redressal Cell, as constituted by the Notification dated 11 th

September 2023, is not equivalent to a Grievance Committee as required to be

constituted under Section 86 of the Act of 2014. From the aforesaid, it is clear

that, at present, there is no Grievance Committee constituted for considering

any grievance of employees of colleges affiliated to the University. In that view

of the matter, we do not find that the petitioners have any alternate remedy to

raise the grievances that they have sought to raise in these Writ Petitions. This

objection, therefore, does not deserve acceptance.

7. Coming to the challenge to the orders of transfer dated 20 th February,

2023, it is seen that the services of the petitioners have been transferred from

the College of Engineering to the Polytechnic College run by the Society. It is not

in dispute that the College of Engineering is affiliated to the University while

the Polytechnic College is, in fact, a Junior College that is not affiliated to the

University. When the petitioners were transferred, they were holding the post

of Associate Professor in the subjects of Electrical and Electronics respectively.

These posts are not shown to be available at the Polytechnic College, where they

have been transferred. It is to be further noted that the services of the

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petitioners are presently governed by the Act of 2014 and the Statutes framed

thereunder. The Polytechnic College, where the petitioners have been

transferred, falls within the definition of the term “School”, as defined by Section

2(24) of the Act of 1977. The Polytechnic College is recognized by the Director

of Technical Education in accordance with Section 2(21) of the Act of 1977.

. From the aforesaid, it becomes clear that the petitioners have been

transferred not to any college where the post of Associate Professor is available

but have been transferred to the Polytechnic College wherein the post of

Associate Professor is not available. Clause 8 of the appointment order of both

the petitioners stipulates that their services were transferable to any of the

colleges run by the Society. This would mean that such transfer would be

permissible at any college where such equivalent post is available. The Society

seeks to justify the order of transfer by contending that the services of the

petitioners could be transferred to any of the branches of the Institutes. Such

stand has been taken in paragraph 5 of the affidavit-in-reply filed on their

behalf. It is seen that this stand is not in consonance with the order of

appointment issued to the petitioners. It is thus clear that the petitioners have

been transferred to the Polytechnic College where the post of Associate

Professor is not available. The transfer has been effected from a college affiliated

to the University to a Polytechnic Institute, which answers the definition of

“School” under Section 2(24) of the Act of 1977. On the ground that the

petitioners have been transferred not on an equivalent post, a case for

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interference has been made out. It is thus held that the transfer orders dated

20th February 2023 issued to the petitioners by the Society are not in

accordance with law.

8. Coming to the challenge to the orders of suspension dated 2 nd May 2023,

it is seen that the same have been issued with a view to conduct a disciplinary

enquiry against the petitioners. While there can be no quarrel with the

proposition that a Master is competent to place the services of its servant under

suspension, we find that an order of suspension for indefinite duration falls foul

of the law laid down by the Hon’ble Supreme Court in Ajay Kumar Choudhary

Vs. Union of India and Anr., (2015) 7 SCC 291 . It has been held therein that the

currency of a suspension order should not extend beyond three months if

within this period the Memorandum of Charges / Charge Sheet is not served on

the delinquent. If the Memorandum of Charges / Charge Sheet is served, a

reasoned order has to be passed for extending the period of suspension. It is

seen that the period of more than three months has since elapsed from 2 nd May

2023, when the petitioners were placed under suspension. It has not been

pointed out that any Charge Sheet has been served on the petitioners within a

period of three months or that if the same has been served thereafter, a

reasoned order has been passed for extending the period of suspension. Hence,

on the ground that a period of more than five months has elapsed since the

petitioners have been placed under suspension, a case for interference to that

limited extent of curtailing the period of suspension has been made out. Thus,

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while holding that the Society was within its rights in placing the petitioners

under suspension pending initiation of a departmental enquiry, we find that

continuation of the orders of suspension for an indefinite period is

unwarranted. It would, therefore, be necessary to interfere with the continued

suspension of the petitioners.

9. In the light of the aforesaid discussion, the following order is passed :-

(a) The orders of transfer dated 20 th February 2023,

transferring the services of the petitioners from the

College of Engineering to the Polytechnic College, are set

aside.

(b) While upholding the power of the Society to place the

petitioners under suspension, it is held that the continued

suspension of the petitioners beyond a period of three

months is unwarranted. The orders of suspension dated

2nd May 2023 would cease to operate from 26 th December

2023.

(c) Needless to state that in case the Society desires to extend

the period of suspension, it would have to comply with the

observations in paragraph 21 of the decision of the

Hon’ble Supreme Court in Ajay Kumar Choudhary

(supra).

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 (d) It is clarified that this Court has not gone into the reasons

assigned for placing the petitioners under suspension.

(e) It would be open for the petitioners to raise all defences

available in the disciplinary proceedings which shall be

conducted in accordance with law.

10. Rule is made absolute in the aforesaid terms with no order as to costs.

[ FIRDOSH P. POONIWALLA, J. ] [ A.S. CHANDURKAR, J. ]

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