Mangal Shridhar Patil vs The State Of Maharashtra, Rayat ...
2003 Latest Caselaw 653 Bom

JUDGMENT

H.L. Gokhale, J.

1. The Petitioners in both these petitions are teachers. Both of them are claiming a post under Rayat Shikshan Sanstha, an educational institution running a large number of schools and colleges in Maharashtra. This Sanstha is joined as Respondent No. 2 in the first petition i.e. Writ Petition No. 6240 of 2000. Respondent No. 4 is Principal of Azad College run by this Sanstha. Respondent No. 1 and 3 are State of Maharashtra and Joint Secretary, Higher Education. The Petitioner in the second petition is Respondent No. 6 in the first petition.

2. As far as the second petition i.e. Writ Petition No. 2611 of 2001 is concerned, the State Government and the Joint Secretary, Higher Education are Respondents Nos. 1 and 3 thereto. Rayat Shikshan Sanstha is Respondent No. 2 and Azad College is Respondent No. 4. Shivaji University is Respondent No. 5 and the Petitioner in the first petition is joined as Respondent No. 6 in the second petition. For the sake of convenience, we are referring the Petitioner in the first petition by her name "Ms. Patil", whereas the Petition in the second petition by her name "Ms. Choudhari".

3. The case of Ms. Patil is that she was selected to the post of Lecturer in a college of education run by Rayat Shikshan Sanstha (for short "the Sanstha"). It is stated in her petition that she was so selected in pursuant to an advertisement issued by the Sanstha in the daily "Sakal" of 14th January 1991. Interviews were held and she was issued an appointment letter dated 1st August 1991 and she was supposed to join from 5th August 1991. It however so happened that the college of education, where she was supposed to join, did not have adequate number of students and therefore inspite of her selection she could not join after this selection in the college where she was supposed to join. It is her further case that thereafter she was accommodated from time to time on yearly basis in different colleges run by the Sanstha. Subsequently there was another selection procedure in November 1995. In that procedure, she participated. She was given rank No. 3 among the selected candidates. Unfortunately, it so happened that the Sanstha could accommodate only two teachers at that time and inspite of her selection, she could not get any regular post after that election. Thereafter also she continued to teach on yearly basis in other colleges of the Sanstha. In October 2000, there was again an advertisement and in pursuance thereto, Ms. Patil applied. She was however not selected, but Ms. Choudhari got selected. It is material to note that prior to her selection, the Ms. Patil was working in a secondary school of the Sanstha and we are told that presently since there is no such availability of any yearly post, she has gone back to a secondary school of the Sanstha where she is presently teaching. It is this selection of Ms. Choudhari which is challenged in the first petition. It is material to note that an exparte ad-interim stay was granted by another Division Bench of this Court when the petition came up initially for consideration on 20th November 2000. That stay was subsequently vacated on 11th July, 2001. The matter was carried to the Apex Court in a Special Leave Petition. The Special Leave Petition was dismissed on 30th October 2001. Ms. Choudhari has been continuing to work as a Lecturer in the meanwhile. This petition has been opposed by the State Government by filing a reply and also by the Sanstha.

4. As far as the second petition filed by Ms. Choudhari is concerned, i.e. Writ Petition No. 2611 of 2001, the same was filed since she was not issued her appointment letter in view of the stay that was granted by the High Court. This petition seeks continuity in service by virtue of her selection.

5. Mr. Apte, learned counsel appearing for Ms. Patil, submitted that she had been selected way back in the year 1991 and therefore the selection of Ms. Choudhari on the very post subsequently was bad. It is also submitted by him that the husband of Ms. Choudhari is a Lecturer in another college run by the Sanstha and therefore the management has obliged him by appointing her. The third allegation is that the interviews went on much beyond midnight and such a midnight selection ought not to be entertained. Now as far as the submission, namely that the husband of Ms. Choudhari is a Lecturer and therefore some influence was exerted, there is nothing to support this allegation of influence except this relationship which is a statement of fact. The Sanstha has pointed out that there are more than 500 schools and colleges run by the Sanstha and some 19000 teachers are working in all these schools and colleges. It is denied that any such influence was exerted and it had led to this selection. There is no reason for us to accept such an allegation merely because of the statements made in the petition. Similarly merely because the interview procedure went on beyond midnight, it cannot be faulted. It has been stated in the reply filed on behalf of the Sanstha that the members of the Selection Committee were good enough to remain present and the Sanstha was keen on finalising the procedure at the earliest. By that itself, no fault can be found. It was also faintly suggested that the same Committee went into the selection of all the candidates of different subjects. That is stoutly denied and we are shown the names of the panel members which clearly indicate that there were different persons who were incharge of selection of teachers for different subjects.

6. That brings us to the first point, namely as to whether Ms. Patil has been selected in the year 1991 and therefore nobody else could be selected on that post. Now firstly it is material to note that no such specific averment has been made in the petition nor any such ground taken. Mr. More appearing for the Sanstha submits that this plea cannot be permitted at such a late stage. Even if we peruse the material on record, what we find is that at the time of first selection of Ms. Patil in the year 1991, it was a selection to a part-time post. Ms. Patil was supposed to be selected as a probationer and the appointment order clearly stated that the appointment was only for the year 1991-92. That appointment could not be given effect to inasmuch as adequate number of students were not there in the concerned college at that time. Similarly as far as the selection of Ms. Patil in the year 1995 is concerned, it is seen from the appointment letter that it was against a post meant for a Scheduled Tribe candidate. That apart, as has been noted earlier, the Ms. Patil was at rank No. 3 and the third post was not available at all. Her employment in other colleges thereafter has been on posts meant for reserved category candidates and on yearly basis. Mr. Apte, learned counsel appearing for Ms. Patil, relied upon a judgment of the Apex Court in the case of Central Inland Water Transport Corporation ltd. v. Brojo Nath Ganguli, , and particularly Head Note (C) thereof to the effect that the termination of the services of a permanent employee of a public corporation without any notice and reasons is void. Now what is material to note is that the propositions laid down are in the context of a permanent employee. We fail to understand as to how those observations could help Ms. Patil in any way. No factual foundation has been laid in the present matter to invoke the rule laid down in the above matter.

7. That apart, Mr. Sakhare, learned counsel appearing for Ms. Choudhari, pointed out that if at all the selection for the year 1991 or that of 1995 was to be maintained, Ms. Patil ought to have moved much earlier in time. Mr. More, learned counsel appearing for the Sanstha, submitted that all these submissions are now being taken across the bar without laying any foundation in the petition as such. Ms. Patil clearly knew that her first selection of 1991 was on a yearly basis in a part-time post and that is why she subsequently participated in the selection procedure in 1995. In 1995, though she was given rank No. 3, unfortunately three posts were not available for being filled in. It was with this understanding that Ms. Patil ultimately participated in the selection procedure which was carried out in the year 2000. Now having participated in the selection procedure, she is estopped from raising the plea that she was already selected or that the entire selection procedure of 2000 was in any way bad. Mr. Sakhare relied upon a judgment of the Apex court in the case of Suneeta Aggarwal v. State of Haryana, in this behalf. In the facts of that case, the Apex Court has noted that the Appellant therein did not challenged the order of the Vice-Chancellor declining to accord approval to her selection and, on the contrary, the Appellant applied afresh in the subsequent selection procedure for that post in response to the readvertisement without any kind of protest. The Apex court held that "the Appellant having appeared before the Selection Committee without any protest and having taken a chance, we are of the view that the Appellant is estopped by her conduct from challenging the earlier order of the Vice-Chancellor". The Apex Court further observed that the High Court was justified in refusing to accord any discretionary relief in favour of the Appellant.

8. It is material to note that in the facts of the present case also, at no point of time has Ms. Patil protested on the basis of her selection earlier in the year 1991 and subsequently in the year 1995. Mr. More therefore submits that Ms. patil is estopped from raising any submissions on the basis of her selection of 1991 or 1995 which have lapsed and which is why she participated in the selection procedure of 2000.

9. There is another point to be noted, namely that as per the advertisement leading to the present selection of Ms. Choudhari, the candidates were supposed to have SET and NET qualifications. undoubtedly, Ms. Choudhari has passed the SET examination which Ms. Patil has not. It is in this situation having seen that Ms. Choudhari had better qualification that the Competent Committee, having representatives of the University, selected Ms. Choudhari. It is a decision arrived at by a competent panel on the evaluation of the credentials of various candidates appearing before the Committee. There is no reason for us to sit in appeal over a decision of a Competent Committee, particularly when no malafides are attributed apart from what is alleged earlier and which we do not find worthy or acceptance.

10. There was some controversy as to whether passing of SET and NET examinations are essential requirements. Mr. More has drawn our attention to an order of a Division Bench of this Court in Writ Petition No. 3495 of 1998, which states that these are essential qualifications whereas Mr. Apte appearing for Ms. Patil has submitted that in certain circumstances these qualifications can be relaxed. But that apart, it is an accepted position that Ms. Choudhari has passed SET examination and her other academic qualifications are also superior to that of Ms. Patil. Ms. Patil has done her B.Sc. and M.Ed. Ms. Choudhari has done her M.Sc. and M.Ed. Ms. Patil has submitted her dissertation for the M.Phil. examination whereas Ms. Choudhari has already completed her M.Phil. and has registered for Ph.D. Therefore, even if we keep aside the NET and SET requirements, the qualifications of Ms. Choudhari are superior and if the Competent Committee selected her on merits, the selection can not be faulted.

11. It is also material to note that Ms. Patil is basing her right on the basis of her selection made in August 1991. As far as Ms. Choudhari is concerned, it is her case that she was working in another college of education from June 1992 and undoubtedly thereafter she is working in Azad College of Education run by Rayat Shikshan Sanstha from August 1994. Therefore, it cannot be in any way said that Ms. Patil is having a very long prior service as against Ms. Choudhari, on the basis of which she can claim any preferential right. Both of them appear to be working as lecturers on yearly basis for good time. Both participated in the selection procedure of October 2000 and Ms. Choudhari has been duly selected on merits.

12. In view of what is stated above, we do not find any merit in Writ Petition No. 6240 of 2000. The same is hereby dismissed.

13. As far as Writ Petition No. 2611 of 2001 is concerned, Mr. Sakhare submits that all that Ms. Choudhari is seeking is that she should be given continuity in her service with all consequential benefits on the basis of her selection effected in October 2000. That shall be so, we however make it clear that for any intervening period, if Ms. Choudhari is denied appropriate salary in due deference to the implementation of stay order passed by the High Court, she will not be entitled to claim it. Mr. Sakhare states that Ms. Choudhari will not claim that. Rule is made absolute in Writ Petition No. 2611 of 2001 to the aforesaid extent. Parties will bear their own costs in both the petitions.

14. A copy of this order duly authenticated by the Personal Secretary be made available to the parties.

15. Certified copy expedited.