Ramesh Gajendra Jadhav vs Secretary, Late S.G.S.P.Mandal & Ors

Ramesh Gajendra Jadhav ...Appellant

Versus

Secretary, Late S.G.S.P. Mandal & Ors. ...Respondents

JUDGMENT

Swatanter Kumar, J.

1. The services of Ramesh Gajendra Jadhav, the appellant

herein, were terminated by Principal of the respondent college

on 18th August, 1999 who, then filed an appeal before Shivaji

University & College Tribunal, Pune, University Campus under

Section 59(1) of Maharashtra Universities Act, 1994. The

grievance of the appellant was that he had been appointed as a

regular lecturer of Geography in the said College and the oral

termination was unjustified, contrary to Rules and without any

basis. On the contrary, the College as well as University

ought to have permitted him to continue as a regular lecturer

in the College. The Tribunal, vide its judgment dated 21 st

July, 2004 found substance in the case of the appellant and

while accepting his appeal the order of termination was

quashed and set aside and he was ordered to be reinstated

w.e.f. 15th September 2000 with full back wages. The College 2

as well as the Secretary of Sambhaji Rao Garad Shikshan

Prasarak Mandal, Mohol, Solapur District, filed a Writ

Petition in the High Court of Judicature at Bombay being Writ

Petition No. 9935 of 2004, which the learned Single Judge,

after hearing the parties and vide a detailed judgment

accepted the Writ Petition by setting aside the order of the

Tribunal and issuing certain directions. The High Court held

that the post of the lecturer in Geography was not meant for

open category candidates but was reserved for SC category

alone. The Court also declined to give advantage to the

present appellant on account of any mistake of the authorities

concerned. Merely, because the appellant was selected, the

Court declined to accept the contention that the appellant had

an indefeasible right to the post. Resultantly, the Court

sustained the order passed by the College and the University

authorities.

2. Aggrieved by the judgment of the High Court dated 7 th

December, 2006, the appellant filed an appeal before the

Division Bench of the High Court of Judicature at Bombay,

which was also dismissed vide order dated 6th June, 2007. The

Division Bench held as under:

"6. The finding arrived at by the learned Single Judge was based on the record, which clearly indicates that the post of lecturer in Geography was reserved for S.C. candidate and not for the candidate from open category and, therefore, the Single Judge held that the decision of the Tribunal was not justified while allowing the appeal of the Management.

3 7. The learned counsel for the appellant, submitted that for no fault of the appellant, his services could not have been discontinued and the findings of the School Tribunal are findings of fact, which cannot be held to be perverse so as to call for interference in exercise of writ jurisdiction.

8. We find that the view taken by the learned Single Judge is based on the correct state of affairs which was ignored by the Tribunal, which based its findings on the advertisement, pursuant to which the appellant was selected, however, the said advertisement was not correct.

9. The learned Single Judge has rightly observed that merely because the Authorities have committed an error in the matter of the advertisement of the post and though it was approved by the University, was also not correct and the University, subsequently, rectified its error by canceling the approval of the appellant. The appellant has no case. Therefore, we do not find any merit in the appeal. The appeal is accordingly dismissed."

3. Aggrieved by the reasoning and decision of the

Division Bench, the appellant filed the present appeal.

4. The controversy in the present case falls in a

very narrow campus: Whether a mistake of fact rectified

subsequently in relation to implementation of roaster of

reservation would be a sufficient reason for terminating the

services of a person appointed under that mistaken impression?

To answer this question, we need to notice the facts which

have given rise to the present appeal.

5. The college in question was established in the

year 1991. The Joint Director of Higher Education, Kohlapur

Division had sent a letter approving the schedule of 4

appointment of lecturer wherein one additional post of part

time lecturer was sanctioned vide letter dated 6th October,

1998. On the basis of this letter, the College had written to

the University on 5th December,1998 seeking its approval for

the draft advertisement to be published for filling up the

vacancy including the post of lecturer of Geography. However,

in the letter issued by the University granting approval to

the post of lecturer for the subject of Geography was shown as

part time in open category. On that basis, advertisement was

issued, which appeared in the newspaper, for filling up the

vacant posts. On 24th December, 1998, the college sent a

letter to the University forwarding the copies of the

advertisement and requesting for names of the persons to be

appointed by Selection Committee. The University granted

approval to the schedule of posts as proposed by the

management but in the letter dated 1st January,1999 approval

was shown to be granted for the post of lecturer for the

subject of Geography as full time lecturer. After receiving

this letter, the management of the college again wrote to the

University bringing out this fact that there was a vacancy of

part time lecturer in Geography, while the University granted

approval to full time lecturer in that subject leading to some

confusion. In the meanwhile, pursuant to the advertisement

issued, candidates including the appellant had applied for the

post and interviews were held on 22nd February, 1999. On 23rd

February, 1999, the Selection Committee prepared its detailed 5

proceedings clearly demonstrating that the post for which the

appellant was selected was a permanent post in open category.

On the recommendation of the Selection Committee, the

appellant was appointed as lecturer in the subject of

Geography on probation vide letter of appointment dated 3rd

March, 1999. The appellant joined the post. However, the

University on 15th March, 1999, sent a letter stating therein

that earlier advertisement was to be cancelled and new

advertisement showing the post of lecturer in Geography as

full time and reserved for SC category, is required to be

issued. In fact, at that point of time, the University also

asked the College as to how the advertisement for appointment

of part time lecturer was issued as the post was full time and

reserved for SC category. Vide their letter dated 12 th July,

1999, the College sent a detailed reply giving reference to

all the events in response to which, the University, vide

letter dated 18.8.1999 stated that those appointed on the post

including the appellant must be treated as full time lecturer

but only for the academic year 1999-2000 and in the meanwhile

steps should be taken to fill up the vacancy keeping in view

the direction that the post was reserved for SC category and

it was a full time post of lecturer in Geography. The

appellant had made a request in the meanwhile, submitting

that he had been selected by a properly constituted Selection

Committee and he should be given the appointment against a

full time lecturer post. No response to the same was 6

received. The appellant filed a Writ Petition No. 1689/2000

praying for quashing and setting aside the letter dated 18th

August,1999 issued by the University giving approval only for

the academic year 1999-2000. This Writ Petition, when came up

for hearing before the High Court, was dismissed vide order

dated 22nd August, 2000. In furtherance to the advertisement,

which appeared in the newspaper on 1st January 2001, amongst

other persons Respondent No. 5 also submitted his application.

Respondent No.5 belonged to a reserved category (SC), was

selected and appointed as lecturer in Geography in the

respondent college. Approval thereto was granted by the

University on 2nd February, 2001. Thereafter, the appellant

was not permitted to serve which resulted in filing of the

appeal before the Tribunal, as already noticed.

6. There is no dispute before us that the post in

question was full time post and was reserved for SC. Once

this fact is not disputed, the only question that remains is

whether an indefeasible right was vested in the appellant by

his selection against the advertisement issued earlier by the

College. The learned Single Judge of the Bombay High Court

while setting aside the order of Tribunal held as under:

"20. It is then sought to be contended that no fault can be found with the respondent no. 1 who had bonafide believed in the advertisement issued by the petitioners on 11th December, 1998 and had applied for the post and on being interviewed, was issued the order of the appointment and even the initial appointment disclosed that his appointment was on probation for two years which disclosed that the 7

appointment was in permanent vacancy. Undoubtedly, there was a mistake on the part of the petitioners in that regard which was immediately brought to the notice by the respondent No. 4.

21 Question then arises whether on account of mistake of the petitioners, can the respondent no. 1 be penalized? It is well settled law that in case of entry in service it has to be a lawful entry. Any irregularity in that respect cannot create any vested right in favour of the employee illegally appointed, irrespective of the fact whether the fault in that regard lies with the employee or the employer. Otherwise, under the pretext of fault on the part of the employer, every employee seeking back door entry may illegally seek to regularize such entry in the service. Being so, merely because there was a fault on the part of the petitioners in following the procedure, on that count the respondent no. 1's services cannot be regularized. That will not ensure to benefit of the respondent no. 1 to content that he cannot be penalized for the fault on the part of the petitioners in not following the proper procedure while filling up the vacancy in relation to the post of Lecturer in the subject of Geography. In fact, it is not a matter of penalizing the respondent no. 1; rather the respondent no. 1 cannot seek to regularize an illegal act to have benefit on the pretext that the fault lies with the petitioner in not following the regular procedure. The respondent no. 1 is to be absolutely blamed for illegally availing the benefit of such acts on the part of the petitioner."

7. There can be no doubt that a post is determined to be

a part time or full time depending on the work load in a

particular college. The University, vide its letter dated 5th

December, 1998, had referred to the requirements which a

college ought to satisfy. In response thereto, the College

had completed the requirement and had clearly stated that in

Geography, there was one vacancy of part time lecturer which

was for open category. This had been approved by the

University, but subsequently it was noticed that the 8

University by mistake had granted approval for full time

lecturer in English and Geography, while the advertisement had

indicated the vacancy of a part time lecturer in Geography.

It is expected and desirable of the Authorities concerned to

have corrected the mistake at that juncture itself. However,

because of inter se correspondence between the University,

College and the Director of Education, the matter got delayed

and in the meanwhile the Selection Committee, on the basis of

the approval letter issued by the University, selected the

appellant as full time lecturer to the post vide letter dated

3rd March, 1999. The University had informed the College that

as per the roaster, the full time regular vacancy of the

College has to be given to SC category candidate and,

therefore, earlier advertisement should be cancelled and fresh

advertisement should be issued. It is a settled principle of

law that a vacancy which has been reserved for SC category

cannot be converted to an open category unless and only if

specified and that too only if the rules permit. Nothing of

this kind has been placed on record and in fact no submission

in that behalf has been made by any of the parties before us.

Once the post was reserved for SC category, the Authorities

could only fill up the said post by a reserved category

candidate. No advertisement for reserve candidate had been

issued earlier, as such, none would have applied for the same

being a post for open category and this mistake vitiated the

entire selection process. As already noticed, fresh 9

advertisement was issued and Respondent No. 5 was appointed to

the said post, resulting in termination of services of the

present appellant. Of course, to some extent, this mistake

was ought to be corrected at least partially by University by

giving the approval to the full time post for one academic

year 1999-2000 in favour of the appellant. No doubt,

appellant has been subjected to some inconvenience and

prejudice and his remedy for damages or any other relief, as

he may deem fit and proper, are open to be taken but this is

not a case where interference of this Court is called for

under Article 136 of the Constitution. We must notice that in

the needs of employments, particularly, in the Institutions

which are aided and are under the control of the State or

statutory bodies, adherence to the concept of equality and

avoidance of discrimination is an essential feature. In

other words, the respondents were expected to act in

consonance with the constitutional mandate contained under

Articles 14 and 16 of the Constitution of India. We find

that the Selection Committee was at fault in selecting the

candidate as full time lecturer, while admittedly the

advertisement had been given for a post of part time lecturer

in Geography. It is a matter of common knowledge that the

eligible candidates, if knew, that the post was that of `full

time lecturer in Geography' would have applied in larger

number and even with better qualifications. In other words,

number of candidates have been denied an opportunity of 10

competing for this post. It would add arbitrariness or

unfairness to the entire process of selection. The appointment

of the appellant, even if otherwise, in accordance with

procedure would stand vitiated on this ground alone. It is a

matter of concern that the post which was advertised as part

time was treated as full time, that too under the general

category only on the pretext that the University had written a

letter that the post of Geography lecturer was full time while

completely ignoring the stand of the College when it had

sought clarification from the University to remove the

confusion created by this stand. Thus, it was not a case

where post of full time lecturer in Geography in general

category was available. It was neither desirable nor fair

for all the Authorities concerned to make this appointment in

the manner in which it has been done, even if the Selection

Committee had recorded it minutes to that effect. Viewed from

this angle as well, we do not think it was a case, where we

can find any error in the judgment of the High Court.

8. Another factor, which has to be considered by the

Court, is that in the Writ Petition No. 1689 of 2000 filed by

the appellant, which was dismissed by the High Court, he could

have raised these issues in that Writ Petition but the point

of resjudicata/constructive resjudicata had not been decided

against the appellant by the learned Single Judge. The

appellant could have challenged the order of High Court and

even raised the issue with regard to reservation or his deemed 11

regular appointment as full time lecturer in Geography in that

writ petition itself. However, the advertisement was issued

for filling up the reserve vacancy on 1st January, 2001.

Therefore, we cannot find fault with the appellant to the

extent that appeal filed by him could be dismissed on that

ground. Be that as it may, a detailed discussion on this

subject would be uncalled for in the facts and circumstances

of the present case. The fact of the matter remains that

there was a collective error on the part of the University and

College and more on the part of the University that led to

this situation. But this mistake cannot vest indefeasible

legal right in the appellant to be appointed or deemed to have

been appointed against a reserve category while he is a

candidate, admittedly, belonging to the open category and was

so appointed by the Selection Committee.

9. For these reasons, we find no merit in the appeal

and the same is dismissed. Parties are left to bear their own

costs.

..................J. [ DR. B.S. CHAUHAN ]

.................J. [ SWATANTER KUMAR ]

New Delhi July 22, 2010.