Dismissed

Anil Ganpat Lohar v. the State of Maharashtra and Ors.

Bombay HC5 May 2010WP/808/2010

Case brief

AI extract

What is this about?

A petitioner seeking election to a university authority challenged the permanent disqualification under Section 44(e) of the Maharashtra Universities Act, 1994. The court held the disqualification is permanent and not relaxable, dismissing the petition and directing the petitioner to approach the Chancellor under Section 108.

What did the court decide?

The writ petition was dismissed in limine with no order as to costs; the petitioner may approach the Chancellor under Section 108.

Anil Ganpat Lohar Vs the State of Maharashtra… — Pension and Retirement Benefits | Bombay HC (2010)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD.

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WRIT PETITION NO. 808 OF 2010

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Anil Ganpat Lohar,
age 49 years, Occu. Service,
R/o 21, Ganesh Colony,
Jalgaon, Tq. & Dist. Jalgaon

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.. PETITIONER.

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VERSUS

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1) The State of Maharashtra, Through the Principal Secretary, Higher Education Department, Mantralaya, Mumbai-32.

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2) North Maharashtra University, Jalgaon,

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PB No. 80 UMAVI Nagar,
Jalgaon-425001
Through Registrar.

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3) The Controller of Examination, North Maharashtra University, Jalgaon. RESPONDENTS.

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Shri P.M. Shah, Sr. Counsel i/b Shri P.D.
Bachate,Advocate for petitioner.

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Shri K.G. Patil, A.G.P. For respondent No. 1.

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Shri A.B. Girase, Advocate for respondent Nos. 2
& 3.

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CORAM : P.V. HARDAS
AND

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 S.V. GANGAPURWALA, JJ.

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JUDGEMENT RESERVED ON 23th APRIL, 2010
 JUDGEMENT PRONOUNCED ON 5th MAY, 2010.

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JUDGMENT: (Per S.V. GANGAPURWALA,J.)

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1. Heard Shri P.M. Shah, learned Sr.
Counsel for the petitioner, Shri K.G. Patil,
learned A.G.P. for respondent No. 1, and Shri
A.B. Girase, learned counsel for respondent Nos.
2 & 3.

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2.The petitioner has filed present
petition, seeking mandamus against the respondent
Nos.2 & 3 to relax the permanent disqualification
of the petitioner, incurred Under Section 44(e)
of the Maharashtra Universities Act, 1994, so
also for declaration that the letter dated
08/07/2009 issued by the respondent No. 3
refusing to relax the disqualification incurred
Under Section 44(e) of the Maharashtra
Universities Act, 1994 is null and void ab-
initio.

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The facts as are necessary to decide

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this petition can be culled out as under.

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3. The petitioner herein is tainted with
punishment for having indulged in unfair
practices as an examiner at the examination
conducted by the respondent University in the
year 1996. The petitioner was held guilty and was
debarred for three years from participating in
any manner in the conduct of University
examination. The said order was passed on
12/16-08-2006. The petitioner is presently
working as Principal of Advocate Sitaram
(Babanbhau) Anandramji Baheti Art, Commerce and
Science College, Jalgaon.

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4.The Petitioner was desirous of getting
elected as a member to the authority of the
respondent-University. Section 24 of the
Maharashtra Universities Act, 1994 enumerates the
authorities of the University. Section 24 of the
Maharashtra Universities Act, 1994 contemplates
following authorities :-

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“Section 24 :- Authorities of the
University.

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The following shall be the authorities

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of the university, namely :-

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(1) the Senate;

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(2) the Management Council;

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(3) the Academic Council;

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(4) The Faculty;

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(5) the Board of College and

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University Development;

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[(5-A) the Board of university Teaching
and Research];

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(6) the Board of Studies;

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(7) the Board of Inter()disciplinary studies;

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(8) the Board of Examinations;

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(9) the Board of Adult and Continuing Education and Extension Services;

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(10)the Students’ Council;

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(11)Such other bodies of the
universities as are designated by the
Statutes to be the authorities of the
University.”

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5. The petitioner applied to the Vice-

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Chancellor of the respondent No. 2 to relax the
disqualification incurred Under Section 44(e) of
the Maharashtra Universities Act, 1994 for being
a member of the authority of the university. The
respondent-University had communicated him that
his request for relaxation of disqualification
Under Section 44(e) of the Maharashtra

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Universities Act, 1994 cannot be considered and
had rejected his said request. Section 44 deals
with the disqualification of a person for
becoming a member of the authority of the
University. The same is reproduced below :-

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“ Section 44 :- Disqualification for
membership of authority :-

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A person shall be disqualified for
being a member of any of the
authorities of university, if he,-

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(a)Is of unsound mind and stands so

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declared by a competent court.

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(b) Is an undischarged insolvent;

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(c)has been convicted of any offence

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involving moral turpitude;

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(d)Is conducting or engaging himself
in private tuitions or private coaching
classes;

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(e)Has been punished for indulging in
or promoting unfair practices in the
conduct of any examination in any form
anywhere.

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[(f)Discloses or causes to disclose to
the public, in any manner whatsoever of
which he has come to be in possession,
due to his official position.]”

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Though the petitioner was desirous of

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getting elected as member to the authority of the
university, he was not in a position to contest
the election by virtue of Section 44(e) of the
Maharashtra Universities Act, 1994.

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6.Thepetitionertherefore,has

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approached this Court with a prayer to relax the
disqualification incurred on him.

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7.According to the learned Sr. Counsel
Shri Shah, the disqualification as contemplated
Under Section 44(e) of the Act, is co-terminus
with the duration of punishment and the said
disqualification is not continuous, permanent and
unlimited in point of time. According to him,
petitioner was disqualified in the year 1996 for
the period of three years from participating in
any manner in the examinations held by the
University as such cannot be held disqualified
for becoming a member of the authority of the
University after completion of period of three
years. The petitioner wants to contest the
election of the authorities of the respondent No.
2, but is not being considered and is held

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ineligible by virtue of letter dated 08/07/2009
issued by respondent No. 3.

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8.The learned Sr. Counsel, has further
submitted that the disqualification is not
automatic. According to him, under Section 9(5)
of the Maharashtra Universities Act, 1994, the
Hon’ble Chancellor has to pass an order
disqualifying any such member. Section 9(5) of
the Maharashtra Universities Act, 1994 reads as
under :-

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“Section 9:- Chancellor and his
Powers:

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(1).................
(2) ................
(3)...................
(4)...................
(5)Where, in the opinion of the

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Chancellor, the conduct of any elected
or nominated or appointed for co-opted
member is detrimental to the smooth
functioning of university or any
authority or body or committee, he may,
after giving such member an opportunity
to offer his explanation in writing and

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after considering such explanation, if
any, and satisfying himself that it is
necessary so to do, [disqualify such
member suspend him for such period as
he may deem fit].”

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9.Shri A.B. Girase, learned counsel
appearing for respondent Nos. 2 & 3 submitted
that the petitioner has been held guilty for
unfair practices and was not allowed to
participate in any examination of the University
for a period of three years in the year 1996.
According to him, the University has received a
communication from the Hon’ble Chancellor stating
that disqualification of membership of the
authorities of the University as laid down Under
Section 44 of the Maharashtra Universities Act,

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1994 is permanent. According to him, the
authorities of the University for which the
petitioner is aspiring to be a member are
constituted to regulate the working of the
University, they are involved in taking policy
decisions, maintenance of discipline, framing of
Rules etc, and such a tainted person cannot be a

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member of the authority which is involved in the
decision making process. According to him, the
disqualification is permanent for being member of
any of the authorities of the University.

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10.We have given anxious thoughts to the
arguments advanced by the respective counsels, on
going through Section 44 of the Universities Act,
it is manifest that the said provision in no
manner restricts or limits the duration of
disqualification. In this particular case, the
petitioner is disqualified for being a member of
any of the authorities of the University by
operation of Section of 44(E) of the Maharashtra
Universities Act, 1994.

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11.The learned Sr. Counsel for the
petitioner referred to other local laws, and
submitted that, in none of the Statutes,
disqualification for purpose of contesting
election is permanent or in perpetuity.
According to us, other respective Acts, lay down
specific period of disqualification, but the
present statute does not in any manner quantify

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the duration of disqualification. If it is to be
held that, the period of disqualification
contemplated Under Section 44 is co-terminus with
the duration of the punishment imposed, would be
nothing but legislating, which is certainly not
permissible. The plain language of Section 44 and
Sub Section (e) of Section 44 is un-ambiguous, no
other interpretation is permissible. If, the
legislature in its wisdom had an intention to
limit period of disqualification, then it would
have incorporated the same in the provision. The
fact that, the period of disqualification has not
beenquantifiedwouldleadtoan

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irresistible conclusion that the disqualification
is permanent, in perpetuity and the reason is
obvious that the authorities of the University,
regulate the working of the University. They are
entrusted with avowed jobs, and are involved in
policy decisions. They would be entitled to
impose punishment if any teacher or student
engages in mal-practices in the examination and
for such decisions, University would not like to
have tainted persons as member of the
authorities.

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12. Applying the literal meaning and taking into account, the phraseology of Section 44, it cannot be interpreted that the disqualification contemplated therein Under Section 44(e) is for limited duration or is co-terminus with the duration of punishment. The learned Sr. Counsel tried to submit that in case of Section 44 （ a), the disqualification is incurred, if a person is of unsound mind and stands so declared by the Competent Court. According to him, after such person regains sanity the disqualification would be extinguished as the duration of

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disqualification would be commensurate to the
unsoundness of mind. This argument does not lead
us any where. The disqualification incurred by
the petitioner by indulging in unfair practices
in the conduct of the examination is an act,
committed by him on his own volition, which
reflects on the character of the person and such
a stigma on the person of having committed
malpractice in the examination is for his life
and in perpetuity. The petitioner accepted
punishment which has become final, and as such,

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has incurred disqualification. The said

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disqualification cannot be relaxed, there is no
provision under the Act for relaxation of such
disqualification, nor there is any room for
interpretation that the disqualification Under
Section 44 is co-terminus with the duration of
the punishment that he has undergone.

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13.The plain and literal language of

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Section 44 no where envisages that the

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disqualification contemplated therein is co-
terminus with the duration of the punishment
imposed upon a person. Sub Section 5 of Section
9 also operates in a different sphere. Section
9(5) would come into operation, if a person is a

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member of an authority and during his term as a
member of the authority he has suffered any
disqualification, or his conduct is unbecoming of
a member. Said provision would not be applicable
in a case where the person has already incurred
disqualification and, thereafter seeks election
for being a member of an authority. The dictum of
the Division Bench of this Court in the case of

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“Shankar S/o Bhagwan Ambhore(DR.) V/s. Vice

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Chancellor, Dr. Babasaheb Ambedkar Marathwada
University, Aurangabad and others, reported in

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2006(3) Mh.L.J. 835“, relied by the learned Sr.
Counsel in this behalf deals with a situation
when a person is a member of the authority of
university and during his continuance as a member
suffers disqualification. This Court held that,
cessation of membership is not automatic but
further order as per Section 9(5) of the Act will
have to be passed. In the present case, the
petitioner is seeking election/nomination for
being a member of the authority. Section 9 Sub
Section 5 of the Act cannot be stretched to such
an extent, so as to include and apply even to a
person who wants to get himself elected/nominated
as a member of the authority.

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14.The learned Sr. Counsel, Shri Shah
relying on Section 108 of the Universities Act,
contended that whenever a dispute regarding the
interpretation, constitution of the authority or
body arises, then in such circumstances, it is
the Chancellor who has to decide the said
question. According to him, in this particular

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case the subject matter has not been referred to
the Chancellor. Section 108 reads thus :-

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“Section 108 :- questions regarding
interpretationanddisputesregarding
constitution of the University, authority or
body, etc:

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If any question arises regarding
the interpretation of any provision of
this Act, or of any Statutes, Ordinance,
Regulation or Rule, or whether a parson
has been duly elected or appointed or
nominated or co-opted as or is entitled
to be a member of any authority or body
of the university, the matter may, be
referred, on petition by any person or
body directly affected, or suo motu by
the Vice-Chancellor to the Chancellor;
who shall after taking such advice as he
thinks necessary, decide the question,
and his decision shall be final:

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Provided that, such reference shall
be made by the Vice-chancellor to the
Chancellor upon a requisition signed by
not less than twenty-five members of the
Senate”.

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On bare reading of Section 108 it is
manifest that it is also open to the petitioner
to approach the Chancellor for a decision

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regarding his eligibility to be a member of any
authority of the University. The petitioner is
not precluded from approaching the chancellor as
per the said provision, in such circumstances, if
the petitioner if he so desires and is so
advised, may approach the Chancellor in that
regard.

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15.In view of the above, there is no merit
in the writ petition and is dismissed in limini.
However, there shall be no order as to costs.

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[S.V. GANGAPURWALA, J ] [ P.V. HARDAS, J ]

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SDM* WP;808.10 (J)

Anil Ganpat Lohar v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

Anil Ganpat Lohar v. the State of Maharashtra and Ors.

Case brief

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What the court decided

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