The Principal, Mahavir ... vs Mr. Deepak Ranganath Joshi, ...
2004 Latest Caselaw 303 Bom

JUDGMENT

1. Rule, returnable forthwith. The First Respondent in person and Counsel for the other Respondents waive service. By consent taken up for hearing and final disposal.

2. The First Petitioner is a Principal of a College at Kolhapur known by the name of Mahavir Mahavidhyalaya. The Second Petitioner is the Chairman of the Institution which conducts the College. From 1976 until 1997 one of the full time posts, to which the present dispute relates, of a lecturer in the subject of English in the College had been duly filled up. The incumbent then retired. The College moved the Shivaji University to which it is affiliated for its approval for filling up several vacant posts, among them, two full time posts of lecturers in English in the Senior College. One of them was reserved for a Scheduled College. One of them was reserved for a Scheduled Tribe, while the other was an 'open' post. Statute 195(2)(A) of the applicable Statutes provides for the mode of recruitment and stipulates that all appointments to posts of (i) teachers in Colleges affiliated to the University and recognized Institutions; and (ii) Principals of affiliated Colleges and Heads of recognized Institutions shall be made on merit on the basis of a 'wide advertisement' as approved by the University. The University communicates its approval to the advertisement that the College proposed to issue by its communication dated 4th May 1999.

3. The Petitioners published an advertisement on 20th May 1999 inviting applications inter alia for two full time posts of a lecturer in English, one of which would be reserved for Scheduled Tribes. While issuing the advertisement, however, the college introduced a note which had not been part of the advertisement which was approved by the University. The note was as follows:

"The post is advertised under Special recruitment drive for filling Backlog. The open post in the subject of English will be filled in subject to the availability of workload."

Plainly, in view of the mandatory requirement of Statute 195(2)(A), the College was not entitled to insert additional stipulations over and above those which have been provided in the advertisement which was approved by the University.

4. The First Respondent applied for the post of a full time lecturer in English in the open category. There is no dispute before the Court that the First Respondent is a duly qualified candidate. Apart from possessing the requisite educational qualifications and experience, the First Respondent has also passed the NET/SET Examination and meets all the required criteria for appointment to the post of a full time lecturer in English. Counsel appearing on behalf of the Shivaji University has in fact stated before the Court that there is a shortage of lecturers holding the NET/SET qualification. Be that as it may, the Selection Committee constituted under Statute 195 met on 1st November 1999 and placed the First Respondent at the top of the Select List of candidates recommended for the open post of a full time lecturer in English. However, at that stage, the Selection Committee recommended that the First Respondent should be appointed on a clock hour basis. On 8th February 2000, the Shivaji University communicated its approval to several appointments including that of the First Respondent. But, it is necessary to note that while granting its approval, the University specifically provided that this would be on the basis that the First Respondent should be appointed as a full time lecturer. The advertisement, as already noted earlier, was for a full time post.

5. By a letter dated 14th February 2000, the Second Petitioner as Chairman of the institution, communicated to the First Respondent that the management was appointing him as a full time lecturer in English in the pay scale of 2200-75-2800-100-4000 on probation for a period of two years. The First Respondent was directed to communicate his acceptance within seven days. In his reply dated 18th February 2000, the First Respondent stated that he would join service within three months since he had to complete the formalities for being relieved of his employment with his then employer. On 22nd February 2000, the Principal of the College informed the First Respondent that it was not possible to allow a period of three months to him to join duties. The First Respondent was called upon to join duties immediately but no later than 26th February 2000 failing which it was stated that it would be presumed that he was not interested in the assignment. The First Respondent by his communication dated 25th February 2000 recorded that he was issued a discharge certificate by the Principal of the Kanya Mahavidhyalaya, Miraj where he was then working and that consequent thereto, he had reported for duty as a full time lecturer in English at the College of the Petitioners at 7 a.m. on that day. After the First Respondent accepted his appointment as a full time lecturer and joined service, the First Petitioner informed him on 26th February 2000 that under the directions of the Second Petitioner, the order of appointment was being revoked. The ground set out in the letter was that there was a difference of opinion between the University authorities and the Joint Director of Education, Kolhapur. While the University was of the view that the open post of lecturer in English was a full time post, the Joint Director of Education had opined that an adequate workload was not available. The First Respondent was, therefore, informed that his appointment as a full time lecturer was revoked and that he was appointed as a part time lecturer in English subject to the approval of the Joint Director of Education.

6. By his letter dated 28th February 2000, the First Respondent stated that he had been on duty since 25th February 2000 as a full time lecturer in English and that he should be allowed to sign the muster. By his letter dated 3rd March 2000, responding to the letter of the College dated 26th February 2000, the First respondent stated that he was accepting the appointment under protest without prejudice to his rights. The First Respondent by his letter dated 15th March 2000 reiterated that his earlier appointment as full time lecturer was accepted and that he was reporting for work from 25th February 2000.

7. On 30th March 2000, the Petitioners informed the First Respondent that since he had failed to convey his acceptance unconditionally to the revised order appointing him as a part time lecturer, even his claim to the post of part time teacher in English stood forfeited.

8. The First Respondent moved the University Tribunal against the termination of his services. Before the Tribunal, the Director of the Board of College and University Development of the Shivaji University filed a reply dated 3rd August 2000 essentially supporting the case of the First Respondent. On the other hand the Joint Director of Education maintained that the First Respondent should not have been appointed as a full time lecturer. By a judgment and order dated 22nd April 2002, the Presiding Officer of the College Tribunal set aside the order of termination and directed that the First Respondent shall be reinstated. The claim of the First Respondent for salary for the period after 30th March 2000 was, however, rejected on the ground that he had not rendered actual service. The First Respondent thereupon moved a Review Petition which was allowed by the Presiding Officer by an order dated 10th October 2002 by directing that the First Respondent shall also be entitled to his back wages for the period from 31st March 2000 to 16th March 2001.

9. The basic question which arises in the present matter is as to whether the Petitioners were justified in revoking the order of appointment of the First Respondent as a full time lecturer in English despite (i) the specific approval of the University to the post being advertised as a full time post; (ii) the actual approval of the University to the appointment of the First Respondent as a full time lecturer; (iii) the consequential appointment of the First Respondent as a full time lecturer; (iv) the acceptance of the appointment and after the First Respondent joined duties. The Court has to consider whether the Petitioners were justified in doing so on the basis of an alleged difference of opinion between the Joint Director of Education and the Shivaji University.

10. In the present case, the admitted facts are that from 1976 until 1997 or thereabout, the post in question had been filled in by a full time lecturer in English who then retired. This position has been accepted by all the Learned Counsel appearing before the Court. The College moved the University for its approval to fill up the post which had fallen vacant and the University while indicating its approval to the proposed advertisement specifically provided that the open post of a lecturer in English shall be advertised as a full time post. In fact, the University had also stipulated that the reserved post for a lecturer in English shall also be a full time post. In view of the provisions of Statute 195(2)(A), the First Petitioner was bound to issue an advertisement in terms as approved by the University. The First Respondent as well as Shivaji University have a serious grievance of the fact that after the University approved the terms of the advertisement, the Petitioners unilaterally altered those terms by providing that the appointment of a lecturer in English in the open post shall be subject to availability of workload. There is in my view, merit in the contention of the First Respondent and the University. The Petitioners had approached the University for its approval and before the University approved the appointment, it was only to be expected that the University would consider as to whether there was a sufficient workload for the appointment of a full time lecturer in English in the open category. The University did in fact, grant approval to the appointment of two full time lecturers in English, one in the open category. What was done by the College unilaterally was, therefore, clearly in breach of Statute 195(2)(A) which governs all colleges affiliated to the University.

11. Counsel for the University submitted that the Selection Committee recommended the appointment of the First Respondent on a clock hour basis on the basis of a misapprehension that arose because of the note which was inserted by the College in the advertisement. The fact remains that the University while communicating its approval for the appointment of the First Respondent stipulated that he would be appointed as a full time lecturer in English on a regular basis. Following the approval of the University, the College appointed the First Respondent on probation as a full time lecturer in English on 14th February 2000. Though the First Respondent initially sought a period of three months time, the College in its communication of 22nd February 2000 informed the First Respondent that such a long period of time could not be granted to him to join duty and called upon him to report immediately. Thereafter, on 25th February 2000, the First Respondent did accept the appointment and reported for duty within the period which was prescribed by the College.

12. Once this process was done, it was clearly not open to the Petitioners to revoke the order of appointment on the supposed difference of opinion between the Joint Director of Education and University authorities. The Board for College and University Development of the University stated in the course of the proceedings before the Tribunal that the College and committed an act of illegality in altering the terms of the advertisement which were approved by the University. The University stated that the post was advertised as a full time post and the First Respondent was selected to the full time open post of a lecturer in English. The University stated that the order of termination and the modified order of appointment as a part time teacher were unlawful. The University stated that even if there was a reduction of workload, a teacher could not be terminated in this manner without first getting sanction to the reduced workload from the University as contemplated by Statute 177(8-a)(6) which continued to remain in existence. On his part, the Joint Director of Education sought to contend that the workload that was available for the year 1992-2000 was of 84 periods or lectures which could allow the appointment of an additional teacher on a clock hour basis. At this stage, it would be material to note the provisions of Section 5(49 of the Maharashtra University Act, 1994 which inter alia includes the following functions of a University:

"5(49) to lay down for teachers and university teachers, service conditions including code of conduct, workload, norms of performance appraisal, and such other instructions or directions as, in the opinion of the university, may be necessary in academic matters."

13. In the present case, it needs emphasis that no new post was being created. The post of a full time lecturer in English always did exist at least continuously after 1976 in the College. This needs emphasis because under Section 5(a) the creation of new posts requires the prior approval of the State Government. Section 8 similarly requires the prior approval of the State Government in several matters, among them is the creation of posts, revision of pay and decisions regarding affiliated colleges which will result in increased financial liability to the State Government. Here no new post has been created.

14. The First Respondent has drawn the attention of the Court to a circular of the Government dated 1st June 1982 which provides that the Government had laid down norms regarding minimum enrolment of students for additional special subjects as follows:

(i) For Colleges located in the Municipal Corporation area - 15 students per class:

(ii) For Colleges situated in other areas - 5 students per class.

Government thereafter issued a Resolution on 19th June 1995. However, by a Government Resolution dated 17th March 1999, it has been clarified that in respect of those institutions for which permission had already been granted prior to 19th June 1995, these Colleges would still continue to be governed by the norms laid down on 1st June 1982. The First Respondent who appears in person contends on the basis of the chart furnished by the Petitioners before the Tribunal showing the workload for the year 1999-2000 (paperbook, pages 108 to 110) that a sufficient workload was as a matter of fact available having regard to the strength of students enrolled for English. Neither has the management refuted these figures (which have been placed before the Tribunal by the management) nor has the A.G.P. appearing for the Department controverted them. Shivaji University which was impleaded in these proceedings has, in the same manner as did the BCUD before the Tribunal supported the First Respondent.

15. In Sharad s/o. Simon Sontakey v. State of Maharashtra, (Writ Petition 1518 of 1983, decided by a Division Bench of this Court consisting of Pendse and Paunikar, JJ. on 10th January 1995), the Court held thus:

"It is necessary to remember that the University is a statutory body which is wholly independent from the State control and all academic decisions have to be left to the University and when the University authorities exercise their statutory powers, the Administrative Officer is bound to give effect to the same. In our judgment, the workload in the Senior College in Hislop College ought to have been determined with reference to the strength of a batch as 16 students for practicals in the under graduate classes and on such determination, the petitioner could not have been termed as surplus in the Senior College. The directions issued by the administrative Officer to the Principal, therefore, are clearly invalid and cannot be sustained. The College authorities have made it clear that the petitioner was required to be posted in the Junior College on the lower scale in view of the directions issued by the Administrative Officer and, therefore, the consequential order passed by the Principal must fall to the ground."

16. The principle which has been laid down in the aforesaid decision is binding on this Court and commends itself for acceptance. In a more recent judgment in Dr. Ambedkar College of Commerce and Economics v. Sharmila Bose, 1998 (2) Mh.L.J. 99, Mr. Justice F.I. Rebello while construing the provisions of the Maharashtra Universities Act, 1994, held that it is not open to an affiliated college to suo motu abolish a post or decrease the workload without the permission of the University. In the present case the post to which the First Respondent had been appointed was always a full time post. No material was produced before the University to indicate that at any stage there was a reduction in the workload. The University is an expert body in academic matters. Even if there was a reduction in the workload, it was not open to the College suo motu or even acting on the advice of the Joint Director of Education to abolish a post or decrease the workload without the permission of the University. At the cost of repetition, it must be noted that this is not a case where a new post was being created. The post was one which existed. In para 9 of his submissions before the Tribunal, the First Respondent recorded that the incumbent who had retired on 30th September 1997 drew a monthly salary of Rs. 20,000/- while the First Respondent being a new recruit would draw a salary of Rs. 12,000/-. There would, it was stated, be no additional financial burden. The First Respondent who is a qualified lecturer in English and who meets all the prescribed requirements has been unjustly excluded from an appointment to which he was legitimately entitled and after his rights have been crystalised by his appointment to a full time post.

17. In the circumstances, the order of reinstatement passed by the College Tribunal cannot be faulted.

18. In so far as the question of backwages is concerned, the College Tribunal did, in my view, have the power to review its order declining back wages. Section 10 of the Maharashtra Private Schools (Conditions of Service) Regulation Act, 1977 provides as follows:

"Section 10. General powers and procedure of Tribunal: (1) For the purposes of admission, hearing and disposal of appeals, the Tribunal shall have the same powers as are vested in an Appellate Court under the Code of Civil Procedure, 1908, and shall also have the power to stay the operation of any order against which an appeal is made, on such conditions as it may think fit to impose and such other powers as are conferred on it by or under this Act."

In view of the provisions of Section 10(1), it cannot be suggested that the power of review conferred by Order 47 of the Code of Civil Procedure, 1908 would not be available to the Tribunal. Once the termination of the appointment of the First Respondent is held to be illegal, an order for back wages must necessarily follow. However, in computing the back wages due, account shall have to be taken of the salary which has been earned by the First Respondent in the employment in which he may have been engaged at any time after 31st March 2000. The First Respondent is in the circumstances, entitled only to the differential wages between what he would have been entitled to as full time lecturer in English with the Petitioners and the amount which has been already earned by him in alternate employment. Since the College is a grant aided College, it would be open to the Petitioners to apply to the State Government for the reimbursement of the salary. The State Government will consider any such application if it is made, in accordance with law.

19. The Petition is accordingly disposed of.

20. Parties be given copies of this order duly authenticated by the Sheristedar/Personal Secretary of this Court.