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[ In the High Court of Bombay (Nagpur Bench), WRIT PETITION NO.2682 OF 2005. ] 19/12/2009
Advocate(s) : Shri K.H. Deshpande, Senior with Adv. Lakhe . Shri N.R.Saboo, No.2. Ms. Tajwar Khan, No.3.
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  "2010 (112) BOM.L.R 719"  ==   "2010 (2) ALL MR 141"  ==   "2010 (1) BCR 648"  

    Maharashtra Universities Act 1994 - Section 59 -Case Law Referred :1.Mah. Seva Sangh Vs. Shaikh Jamalchand 2009 (4) Mh.L.J. 198 (Para 20).2.State of W.B. Vs. Banibrata Ghosh (2009)3 SCC 250 (Para 22).3.D.S.P.S. Manora Vs. Rekha 2008 (2) Mh.L.J. 565 (Para 6).4.Pramod Kumar Vs. U.P. Secondary Education Services Commission (2008) 7 SCC 153 (Para 20).5.Mustaq Shah S/o.Maheboob Shah Vs.Haidariya Urdu Education Society 2008(4) All MR 272 (Para 23).6.W.P. No. 173/1998 dated 13.02.2006 (Para 19).7.Mohd. Sartaj Vs. State of U.P. (2006) 2 SCC 31 (Para 20).8.Shobha M. Bhave Vs. State of Mah. 2004 (1) Mh.L.J. 97 (Para 20).9.B.G.P. Sanstha Vs. Vijay Kumar 2003 (1) Mh.L.J. 563 (Para 23).10.Union of India Vs. Ravi Shankar 1998 (3) SCC 146 (Para 20).11.Hindustan Education Society Vs. Sk.Kaleem Sk. Gulam Nabi (1997)5 SCC 152 (Para 23).12.I.K. Chopra Vs. Pradeshik Coop. Dairy Fed. Ltd. 1992 (5) SLR 24 (Para 21).13.Mohinder Singh Vs. State of Haryana 1991 Supp (2) SCC 207 (Para 22).14.State of Gujrat V Akhilesh C. Bhargav (1987) 4 SCC 482 (Para 8).15.State of U.P. Vs. Nand Kishore Tandon 1976 (4) SCC 823 (Para 22).16.Director of Panchayat Raj Vs. Babu Singh Gaur (1972)1 SCC 227 (Para 22).     ORAL JUDGMENTChallenge in this writ petition filed under Articles 226 and 227 of the Constitution of India is to the judgment of the College Tribunal dated 02.11.2004 in Appeal No.N-18/ 2003 whereby the College Tribunal has allowed appeal filed by respondent No.2 employee and directed the petitioner/ management to reinstate him with continuity and full back wages. This Court has issued Rule in the matter on 07.12.2005 but granted stay of payment of back wages only.2.The facts show that present respondent No.2 approached College Tribunal with grievance that his services were orally terminated on 14th August 2003. He pointed out that the petitioner college started in 1992 and it is affiliated to respondent No.3 Nagpur University. In response to the advertisement he applied and was interviewed by competent Selection Committee and joined on 16.01.1996. His appointment was also approved on 18.02.1996. He pointed out that for some time he was shown as in-charge Principal also after Shri H.R. Chauhan earlier Principal expired in November 2002. He contended that examination forms were again forwarded in December 2002 but the same were signed by son of Secretary of the Institution who did not possess requisite qualification of physical education. He also pointed out that payment of salary to him was discontinued in April 2003. On 16th June 2003 when he went to attend college the attendance register was not given to him for putting signature and after declaration of result of B.P. Ed. he was not permitted to take part in the process of admission of the students. He complained to Nagpur University on 11.08.2003 and its copy was received by the petitioner on 13.08.2003. On 14.08.2003 son of Secretary of the petitioner prevented him from coming into college premises. Then he has pointed out some subsequent events. He then filed an appeal as mentioned above under Section 59 of the Maharashtra Universities Act 1994. The said appeal was opposed by the management on various grounds and they also contended that the appeal as filed was time barred. The College Tribunal has thereafter granted relief to respondent No.2 as mentioned above.3.I have heard learned Senior Advocate Shri K.H. Deshpande with Advocate Shri Lakhe for the petitioner management learned Advocate Shri N.R. Saboo for respondent No.2-employee and learned Advocate Ms. Tajwar Khan for respondent No.3 University.4.Advocate Shri Deshpande has contended that the College Tribunal failed to note that there was delay in filing the appeal which was not explained. He has invited attention to the facts stated in appeal memo to show that there was otherwise termination and hence the appeal ought to have been filed within 30 days therefrom. He has further stated that actually there was no termination at all and it was the case of petitioners that respondent No.2 was himself keeping away from duties and was absconding. According to him no finding has been recorded in this respect. He further pointed out that as per roster the post was reserved and the petitioner did not belong to any reserved category and hence his appointment was purely temporary. He also pointed out that the petitioner did not possess requisite NET/SET qualification and hence there could not have been permanent appointment. He invites attention to approval given by Nagpur University in this respect to urge that the said approval is on ad-hoc basis. Without prejudice to all these contentions he has invited attention to provisions of Statute 53 particularly clause 4 to urge that a clear vacancy against which permanent appointment can be made legally becomes available only after four years and hence at the time of initial recruitment of respondent No.2 as there was no such clear vacancy his employment was purely temporary and on adhoc basis. To substantiate his contention he has invited attention to provisions of Section 82 to Section 88 of the Maharashtra Universities Act to show that permanent affiliation to college is contemplated only after six years standing as affiliated or recognized institution. He states that the scheme of Statute 53 is consistent with the requirements of these sections regulating affiliation to the college. He has also invited attention to provisions of Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act in this respect to draw parallel and has stated that the College Tribunal has erred in granting reinstatement with back wages to the employee. He has further pointed out that as respondent No.2 does not possess NET/ SET qualification even today he was not qualified at the time of his initial recruitment and he has relied upon various judgments to show that such qualification is essential at the time of recruitment. He has further pointed out that relaxation of such qualification is not possible.5.Mere continuation of respondent No.2 for number of years on adhoc basis does not clothe him with any right of regularization and he states that after permanent or clear vacancy became available there has to be fresh process of recruitment. As no such process is undertaken in the present matter respondent No.2 does not get any right to the post.6.On interpretation of Statute 53 he has invited attention to a Division Bench judgment of this Court in 2008 (2) Mh.L.J. 565 (D.S.P.S. Manora Vs. Rekha). He has also pointed out that the said judgment is against the judgment delivered by me as single Judge. By referring to various parts of said Division Bench judgment and also to rulings cited by him he has attempted to show that distinction between a new institution and established institution is real distinction and the Universities Act does not prohibit treating a recruit for first four years as temporary and person recruited after four years as on probation. He contends that Division Bench has erred in observing that annual appointment during this period is only a ritual and appointment cannot be presumed to be probation reversible i.e. after four years. He pointed out that attention of Division Bench was not invited to scheme for affiliation as contained in provisions of Sections 82 to 88 of the Maharashtra Universities Act 1994. He further states that when college is not permanently affiliated better candidates are not available for recruitment and after four years when the post is available as clear vacancy better candidates willfully apply and hence institution gets best possible recruits. According to him this being the reality and as attention of Division Bench was not invited to all these factors its interpretation of Statute 53 is misconceived. He fairly pointed out that Special Leave Petition preferred against this Division Bench judgment was dismissed in motion but then that does not mean that the Honble Apex Court has affirmed the view or interpretation by this Court.7.Lastly he states that as respondent No.2 was ad-hoc employee in the above circumstances there was no question of obtaining previous approval of University as contemplated by Statute 53(5). He pointed out that respondent No.2 had thereafter secured alternate employment and though he filed contempt did not choose to join duties and hence he is not entitled to relief of back wages in any case.8.Advocate Shri Saboo for respondent No.2 states that for the first time before this Court the issue of reservation has been raised. He relies upon documents to show that there was no roster no reserved post and approval given to respondent No.2 was as probationer. He further states that even his appointment was against the clear vacancy after fulfilling necessary formalities. He pointed out that college started in 1992 and the services of respondent No.2 have been terminated on 14.08.2003 i.e. seven years after his recruitment. He contends that period of four years from starting of college was over in 1996 and hence the contention that the period of four years needs to be counted from 1996 is incorrect. He has further stated that the approval order mentions the appointment on adhoc basis because of Government Resolution dated 22.12.1995 then holding field. He says that in view of subsequent resolutions as respondent No.2 has entered service before 1999 he cannot be terminated even if he is not having NET/SET qualification. He states that respondent No.2 is placed at disadvantageous position because of lack of that qualification and as per Government policy he draws his salary in lower pay scale. He contends that after NET/SET qualification is procured fitment into appropriate pay scale is contemplated. He further states that the Tribunal has correctly considered the entire story and has found that the management has terminated services of respondent No.2 and there was no abandonment. He invites attention to proviso as contained in clause (1) of Statute 53 to show that it contemplates deemed confirmation and also deemed satisfactory completion of probation. He invites attention to certificate given by Principal of petitioners institution to show that his service record was satisfactory. In support of his contention he has invited attention to a judgment of the Apex Court reported in (1987) 4 SCC 482 (State of Gujrat V Akhilesh C. Bhargav).9.He further points out that while filing reply to Civil Application No.7103 of 2005 this respondent has pointed out that he was not allowed to join duties and by affidavit placed on record on 14.12.2009 he has pointed out to this Court that he has no source of income. In this situation according to him by raising various roving pleas an effort is being made to anyhow keep him away from employment and writ petition needs to be dismissed.10.Advocate Ms. Khan appearing for respondent No.3 University has pointed out that the services of respondent No.2 were against clear vacancy and accordingly approval was given by Nagpur University on probation. She further states that as he joined services in January 1996 itself i.e. prior to 1999 as per Government Resolution dated 18.10.2001 his services could not have been terminated and had the management forwarded proper proposal to Nagpur University that proposal could have been sent by Nagpur University to University Grants Commission. She further states upon instructions that in various similar cases University Grants Commission has granted exemption. She also wanted to produce on record some such exemptions but then Advocate Shri Lakhe has pointed that such documents cannot be accepted for the first time at the time of hearing.11.Document dated 20.06.1995 relied upon by the petitioner shows that Deputy Secretary of respondent No.3 University granted approval to various posts like Principal Lecturer Librarian Clerk Peon etc. by it. Letter also mentions whether post is in open category or then in reserved category. It also specifies the category for which it is reserved. In so far as lecturers are concerned ten posts have been sanctioned. Out of them five are for different reserved categories (one each) while five are in open category. The advertisement published by petitioners on 01.07.1995 mentions ten posts of lecturers in physical education and five were advertised in open category. Resolution shows that the petitioner has been selected as lecturer for 1995-96 session. This resolution is undated but it refers to proceedings dated 14th January 1996. Next document relied upon by the petitioners is a communication sent by it to respondent No.3 seeking approval to the appointment of three lecturers. It mentions that competent selection committee has on 10th January 1996 selected three candidates who appeared for interview before it. Letter seeks approval for academic year 1995-96. The communication from Assistant Registrar (College) of Nagpur University to petitioners is dated 16.01.1996 and it mentions that it has given approval to appointment of the petitioner for session 1995-96 onwards. It is to be noted that name of the petitioner is at Sr.No.2 in the list. In the list person at Sr.No.1 Shri H.R. Chauhan has been shown to have been appointed against Other Backward Classes category while person at Sr.No.3 Shri Bopche is shown to have been appointed in Open Category. In the last column meant for remarks the University has stated that approval of all three is on adhoc basis as per Government Resolution dated 22.12.1995. From Note (a) below it it is clear that the approval given is against clear vacancy and the clear vacancy has been clarified to me vacancy other than leave or lien vacancy and it has been further stated that the incumbent can be directly appointed on probation. Perusal of appointment order dated 15.01.1996 issued to the petitioner shows that as per recommendation of duly constituted selection Committee he has been appointed as lecturer on probation period of two years. It is therefore apparent that the stand that the petitioner was appointed against reserved category post being raised for the first time before this Honble Court is misconceived and unsustainable.12.The communication from University and appointment on probation clearly show that the petitioner appointed respondent No.2 against clear vacancy on probation. The College Tribunal has in paragraph 5 of its judgment found that earlier Principal of the College had issued certificate about satisfactory work of respondent No.2. In this situation the College Tribunal has found that having completed two years probation respondent No.2 is deemed to be confirmed lecturer as per Statute 53 and his services could not have been terminated without seeking permission of Nagpur University.13.Statute 53 Rule 4 states that subject to procedure of selection and appointment a teacher shall be appointed in a clear vacancy in first instance on probation for two years from the date of his appointment. It further states that at the end of said period of two years (24 months) he is to be confirmed by giving him notice thereof or then his services can be dispensed with by giving him one months notice. It further states that in absence of such notice of confirmation or notice of termination satisfactory completion of probation is presumed and such teacher is deemed to be confirmed in service. Proviso thereto stipulates that if any teacher already in service has completed two years service as temporary or probation in clear vacancy he is also deemed to be confirmed teacher. Explanation to this Rule 4 states that clear vacancy means a vacancy which is not lien vacancy or leave vacancy and that vacancy / post is vogue in the institution for not less than four years.14.Emphasis of petitioner is on absence of clear vacancy as according to them the vacancy against which the petitioner came to be appointed was not in vogue for four years. Controversy is already considered by me and answered against the petitioners. Letters Patent Appeal against the said judgment is dismissed by Division Bench vide judgment reported in 2008 (2) Mh.L.J. 565 (supra). It is therefore not necessary to comment upon the scheme of Statute 53 Rule 4 again at length in this matter.15.The learned Senior Advocate has however tried to show that the provisions relating to affiliation as contained in Sections 83 and 88 were not brought to notice of this Court. According to him permanent affiliation as contemplated in Section 88 only after college completes six years of its standing. According to him the initial period of four years for which vacancy has to be in vogue to qualify to be a clear vacancy and the subsequent period of probation of two years i.e. total period of six years as contemplated in Statute 53(4) coincides with this period of six years mentioned in Section 88. Therefore the scheme of Section 88 of the Maharashtra Universities Act and said Statute 53 are consistent with each other. Because of this scheme there is real distinction between nascent post/ institution new and established institution or vacancy. It is to be noted that clear vacancy becomes available only after four years and hence as per law it can be available in a college which has only four years standing i.e. which does not have permanent affiliation. Thus Statute 53 and Section 88 cannot be read to mean that clear vacancy has got any bearing with nature of affiliation contemplated in Scheme of Section 82 to Section 88 of the Universities Act. In any case it is to be noted here that college was in existence since 1992 and in 1996 it had already completed four years. The sanction letter of the University shows that the posts are sanctioned on 20.06.1995 and advertisement was then issued on 01.07.1995. The appointment order has been given on 15.01.1996. It is thus clear that the workload and students were therefore already available in 1995-96 session itself in the college. In this situation the arguments of learned Senior Advocate in attempt to distinguish the Division Bench judgment or his hard efforts to show that the Division Bench has taken incorrect view on interpretation are not very relevant in present facts.16.Respondent No.2 was appointed on 15.01.1996 and his termination is not within four years. Four years from his appointment expired on 15.01.2000. Next period of two years expired on 15.01.2002. His termination is on 14.08.2003 i.e. much more after expiry of six years. This is also the reason why the arguments of learned Senior Advocate need not be considered in more detail in this matter.17.The stand of University before the College Tribunal and before this Court is in favour of respondent No.2. It has mentioned that his appointment was not against reserved vacancy was on probation and against the a clear vacancy. It has also been pointed out that as per Government Resolution dated 18.10.2001 similarly situated persons who joined service before 1999 have been extended protection. In fact Advocate Ms. Khan has placed before this Court some documents to show that in similar circumstances when other employers/ managements forwarded proposals of teachers for exemption as contemplated by Government Resolution dated 18.10.2001 those exemptions have been granted by University Grants Commission. However because of objection raised by the learned counsel for the petitioner I have not looked into the said proposals. The Government Resolution dated 18.10.2001 of State Government contains policy decision about non NET/SET lecturers who have joined services between 19.09.1991 to 11.12.1999. The said Government Resolution contemplated securing NET/SET qualification by such candidates by December 2003. It also stated that if said qualification was not secured the concerned lecturer would not be eligible to benefits like promotion senior scale selection grade scale etc. and till their retirement they would continue in pay scale of 8000-13500 other conditions therein are not relevant in present matter. In pursuance of this decision respondent No.3 University has sent a communication on 6th November 2004 which mentions interim orders of the High Court. The decision taken by University Grants Commission on 16th July 2004 is also incorporated in that communication and University Grants Commission decided that its office may consider granting exemption from NET/SET after examining each case individually and the said procedure would be observed while giving exemption to teachers appointed by various other Universities. The University therefore had directed managements to submit individual proposal for exemption to it by 25th November 2004. These communications therefore clearly show that not passing NET/SET qualification is not a bar for present respondent No.2.18.The College Tribunal has found that respondent No.2 was initially not permitted to sign on attendance register from February 2003 and thereafter on 14.08.2003 he was not permitted to enter the premises. Respondent No.2 in his appeal memo has given various dates but has not stated that his services were terminated on the said date. It is also not the case of the petitioner that it had terminated respondent No.2 in February 2003 when he was prohibited from signing the attendance register or then in April 2003 when his salary was stopped. Petitioners case even before this Court is of no termination i.e. of abandonment. The contention that there is delay in approaching the College Tribunal is on account of the theory of otherwise termination which petitioner is forcing upon respondent No.2. If that story is ignored his appeal is within limitation and there is no delay in the matter.19.Shri Saboo has relied upon an unreported judgment of this Court dated 13th February 2006 in Writ Petition No.173 of 1998. There provisions of Section 43 of the Nagpur University Act and Clause 38 of Ordinance No.34 (College Code) are looked into and the learned single Judge of this Court found that letter of appointment of temporary teacher has to specify the period of notice of termination and that period of notice cannot be less than one month. However in view of the consideration above I do not find it necessary to consider the said judgment in present facts.20.The judgment of Honble Apex Court reported in (2006) 2 SCC 31 (Mohd. Sartaj Vs. State of U.P.) relied upon by the petitioner shows that there candidate was found not possessing requisite training qualification on the date of appointment. Requirement of possessing said qualification on the date of appointment cannot be in dispute. Here it has been already found that in view of policy decision taken on 18.10.2001 not possessing NET/SET qualification is not a bar to continue in employment. (2008) 7 SCC 153 (Pramod Kumar Vs. U.P. Secondary Education Services Commission) is a judgment of Honble Apex Court which again takes similar view. It shows that training qualification obtained by employee there was not from a recognized university. 1998 (3) SCC 146 (Union of India Vs. Ravi Shankar) is the judgment of the Honble Apex Court where again same aspect has been emphasized. 2004 (1) Mh.L.J. 97 (Shobha M. Bhave Vs. State of Mah.) is a Division Bench judgment of this Court which considers rights of adhoc appointees. It has been held that granting regularization to such persons would be illegal unjust and unfair. 2009 (4) Mh.L.J. 198 (Mah. Seva Sangh Vs. Shaikh Jamalchand) is a judgment of learned Single Judge of this Court which again considers the importance of qualification and in paragraph 13 it has been observed that a person appointed by relaxing the qualification is not entitled to seek permanency merely because he was assured by the institution that he would be continued till he acquires the prescribed qualifications. The facts before this Court are entirely different and therefore this ruling has no relevance.21.1992 (5) SLR 24 (I.K. Chopra Vs. Pradeshik Coop. Dairy Fed. Ltd.) is a judgment of the Honble Apex Court which considers appointment against regular vacancies by placing a candidate on probation for a period of one year. Explanation to Rule 17 considered therein stipulated that the posts cannot be deemed as regular unless it has been in existence continuously for last five years. However the question which has been looked into by Division Bench of this Court in 2008 (2) Mh.L.J. 565 was not required to be looked into by the Honble Apex Court there. Paragraph 15 of the judgment of the Honble Apex Court shows that the employee was terminated even before the period of three years had expired and hence it has been observed that the post could not be deemed to be the regular post. In this background it has been observed that as the post was not regular Regulation 17 would not be applicable. It is to be noted that in paragraph 16 the Honble Apex Court therefore found services of the appellant before it were as temporary employee. This Court has already found that here respondent No.2 had worked in that post not only for four years but for more than seven years.22.(1972)1 SCC 227 (Director of Panchayat Raj Vs. Babu Singh Gaur) is a judgment in which the Honble Apex Court states that by mere continuation in service status of permanency is not reached. The respondents before the Honble Apex Court (employees) were appointed temporarily and the Honble Apex Court has considered provisions of fundamental Rule 26(d). As per the said rule and order of Governor the Honble Apex Court in paragraph 10 found that it has got no bearing on nature of appointment. It has been held that merely because for certain specified purposes those temporary appointments were to be considered as made in substantive capacity that did not mean that appointees were holding posts in question in substantive capacity for all purposes. From paragraph 11 it is apparent that there was also order converting those temporary posts into permanent posts which expressly envisaged a separate order regarding confirmation of individual. It is obvious that these judgments therefore has got no bearing in the present matter. 1976 (4) SCC 823 (State of U.P. Vs. Nand Kishore Tandon) holds that person appointed in a substantive capacity to a temporary post does not become permanent when the post is declared permanent. 1991 Supp (2) SCC 207 (Mohinder Singh Vs. State of Haryana) lays down that a temporary post can continue for indefinite period but then that does not entitle the person working on it to have his services automatically extended. The Honble Apex Court has held that termination of service of such incumbent after notice to him is not improper. (2009)3 SCC 250 (State of W.B. Vs. Banibrata Ghosh) considers the issue of regularization and holds that continuation on adhoc basis does not entitle adhoc appointee to be regularised. It also shows that adhoc employees were continued for ten years and the Honble Apex Court found that no misplaced sympathy could be shown to him by ordering his regularization. The facts in paragraphs 5 and 6 show that it was a leave vacancy initially for six months which was extended but then for some inexplicable reasons the adhoc appointee was continued from 02.01.1992 to 31.03.1992 his extension was not approved by the District Inspector of Schools and consequently an advertisement was therefore published. In response to that advertisement same employee was again selected. Thereafter the original incumbent holding post who had gone on leave resigned and substantive vacancy arose in permanent sanctioned post. Issue was considered in this background. It is to be noted that the Honble Apex Court also found that procedure for appointment against leave vacancy was different from procedure for filling up regular vacancy.23.(1997)5 SCC 152 (Hindustan Education Society Vs. Sk.Kaleem Sk. Gulam Nabi) 2008(4) All MR 272 (Mustaq Shah S/o.Maheboob Shah Vs.Haidariya Urdu Education Society) and 2003 (1) Mh.L.J. 563 (B.G.P. Sanstha Vs. Vijay Kumar) are the judgments which deal with provisions of Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act. In view of the various judgments considered above and clear facts in present matter I do not find it necessary to refer to those judgments here. The petitioners have not come up with defence that some other procedure for selection was followed when respondent No.2 was initially appointed. They have also not come up with the case that after expiry of period of four years when clear vacancy became available they had contemplated some other procedure for recruitment to be followed.24.I find that the College Tribunal has considered the relevant arguments and its findings are neither erroneous nor perverse. Respondent No.2 was appointed against clear vacancy on probation by the petitioner by express order in writing and they have not withdrawn that order of appointment and have not even urged that they have committed any error by issuing such order. Respondent No.3 University has also granted approval and sanction to that appointment. I therefore find that no case is made out warranting any interference in so far as relief of grant of reinstatement is concerned.25.In so far as grant of back wages is concerned it is clear that this Court granted stay of back wages only while admitting the matter. Respondent No.2 thereafter attempted to join duties and as he was not allowed to join duties he filed contempt proceedings. After initiation of contempt proceedings though he was allowed to join again it appears that there was some dispute and he could not performed his duties. In that situation he got some temporary job on contract basis and he accepted that job. Before College Tribunal there was no material produced by him to show that he was without any source of income or employment after his termination.26.Taking overall view of the matter I find that the interest of justice can be met with by granting him 50% back wages. Accordingly the judgment of the College Tribunal is modified only to that extent. The petitioner-management is directed to reinstate respondent No.2 in service forthwith with continuity of service and with 50% back wages.27.Writ Petition is thus partly allowed with costs of Rs.Five Thousand to be paid by the petitioner-management to respondent No.2.