Harischandra S/O Panditrao Gitte vs Shridhar Gangaram Gitte, ...
2006 Latest Caselaw 1102 Bom

JUDGMENT

V.R. Kingaonkar, J.

1. Both these petitions arise out of same order and as such are being disposed of together. Challenge in these petitions is to order dated 2.9.1994, rendered by the College Tribunal for Dr. Babasaheb Ambedkar Marathwada University, Aurangabad, (for short "the Tribunal"). By the impugned order, appeal preferred by petitioner - H.P. Gitte was partly allowed and his removal from post of Principal was held illegal but instead of directing his reinstatement it was declared that he would be entitled to amount of compensation equal to six months pay and other allowances admissible to the post of Principal.

2. Petitioner H.P. Gitte, was appointed as lecturer in History, initially on part time basis in 1974, by Jawahar Education Society Parli Vaijanath. He was lateron appointed as full-fledged lecturer on probation. Somewhere in 1978 he completed the probation period and was substantively appointed as confirmed lecturer. There occurred vacancy in the post of Principal of the College due to resignation tendered by the then Principal in the year 1990. Prof. H.P. Gitte was appointed as incharge Principal by management of the Educational Trust on 10.1.1991 from amongst the teachers. He possessed post graduation degree and teaching experience of more than 10 years as was required at the relevant time for appointment as Principal. The appointment was given temporary approval by the University. The Managing Committee resolved in its meeting dated 22.5.1993 to regularise his appointment as Principal and issued an order dated 24.5.1993 making such appointment in the pay-scale of Principal i.e. Rs.4,500 -6,300/-, w.e.f. 11.1.1993. He was allowed to draw salary in the scale available to the post of Principal.

3. The case of petitioner Prof. H.P. Gitte, is that there took place dispute amongst two groups of the Educational Trust, one group was spear headed by Respondent No. 1 Shridhar and another was spear headed by counter petitioner-late Suvvalal. The dispute arose after elections of the Managing Committee and both the groups filed change reports. Late Suvvalal claimed himself to be President of the Educational Trust. He was appointed as Member of Senate of the University in February 1993. He was on cross terms with the petitioner - Prof. H.P. Gitte since the latter was appointed by group of Respondent No.l Shridhar Gitte, who also claimed himself to be elected President of the Trust. Though, the management sent letter to the University for grant of approval to the appointment of Prof. H.P. Gitte, after completion of his two years probation, yet by letter dated 13.7.1993 the University refused to grant such approval for the reason that he was not selected through the Selection Committee.

4. Late Suvvalal Wakekar, appointed one Shri S.S. Mundhe, as incharge Principal in place of petitioner -Prof. H.P. Gitte. Though, initially such appointment was temporarily approved by the University yet, subsequently, the University got cancelled the approval given to appointment of Shri S.S. Mundhe (original respondent No. 4) and continued the approval to appointment of Prof. H.P. Gitte in accordance with its letter dated 2.3.1993. Thus, he continued to work as "Incharge Principal". There were internal disputes in the two groups of the members of the trust which polluted the administration somuch so that it was quite difficult to discharge regular functions as "Incharge Principal" of the College. Late Suvvalal Wakekar, attributed certain misdeeds to petitioner -Prof. H.P. Gitte and eventually terminated his services as Incharge Principal by letter dated 29.12.1993. He was reverted to his substantive post of lecturer. No enquiry was held and no opportunity was afforded to him prior to such administrative action. After his termination, within a couple of days, the University granted temporary approval for appointment of Shri S.S. Mundhe as incharge Principal, cancellng the earlier approval granted to the appointment of Petitioner -Prof. H.P. Gitte. Feeling aggrieved, Prof. H.P. Gitte, moved the College Tribunal by filing an appeal. He challenged the impugned order of termination. The Tribunal partly allowed appeal as stated before, holding that the termination order was illegal and improper yet, direction for reinstatement of the petitioner was unwarranted. The Tribunal however, declared that he would be entitled to six months salary as compensation.

5. Consequently, Prof. H.P. Gitte, challenges the impugned order and so also late Suvvalal Wakekar challenged the same.

6. Heard counsel for the parties including interveners. After death of Suvvalal Wakekar, the petition filed by him is prosecuted by Dattatraya Ganpatappa Itke, who claims to be Secretary of the Educational Trust.

7. Mr. S.K. Shelke, learned Counsel appearing for the petitioner - Prof. H.P. Gitte, contended that appointment of the petitioner was in accordance with statute No. 218 of the Marathwada University Act and he was promoted by selection from amongst teachers of the College. He argued that late Suvvalal was incompetent to terminate services of the petitioner. He further argued that when the Tribunal found that the termination itself was illegal then reinstatement ought to have been ordered. He would submit that the petitioners termination was out come of internal rivalry between the two groups of the trustees of the Educational Trust. He would submit that the intervening developments should be taken into account since the claim of late Suvvalal as elected President was found to be incorrect and was turned down. He would point out that change report filed by Respondent No. l -Shridhar Gitte and others was approved. He would submit that victimisation of the petitioner -Prof. H.P. Gitte is manifest from the record and hence his reinstatement in the post as incharge Principal is necessary. Similar are the contentions of learned Counsel Mr. S.B. Talekar, who represented Prof. H.P. Gitte in the counter petition filed by late Suvvalal. Mr.Choudhary, learned Counsel appearing for Respondent No. 3 and Mr.Bhavthankar, learned Counsel appearing for the Secretary in the counter writ petition, however, would submit that the petition is bad for non-joinder of the Educational Trust. They would further submit that the appointment of Prof. H.P.Gitte was contrary to the rules and he cannot claim any right to the post as incharge Principal. Mrs.Kulkarni, learned Counsel appearing for newly added Respondent No. 4 would submit that the regular appointee cannot be reverted by allowing reinstatement of Prof. H.P. Gitte, since the initial appointment of the latter was illegal. She would further submit that the appointment to the post of Principal is governed by statute No. 219 and hence without adopting selection process by constituting a Selection Committee, Prof. H.P. Gitte, could not have been appointed to the post of Principal. Therefore, she would submit that he be not reinstated as incharge Principal. She seeks to rely on certain observations in case of State of Haryana v. S.M. Sharma and Ors. . Mr. Bhavthankar, would submit that when the appointment of petitioner Prof. H.P. Gitte was only temporary and he was just "incharge Principal" then it was improper to grant him six months pay as compensation. He would submit that Prof. H.P. Gitte now has no right to claim the post of Principal since he does not possess educational qualification of NET/CET. None appeared for Respondent No. l. Mr. Dixit, Senior Counsel, appearing for the Secretary of the Trust, supported the claim of petitioner Prof. H.P. Gitte. Mr. Bora, learned Counsel appearing for Respondent No. 4 University would submit that refusal to grant approval to the appointment of Prof. H.P. Gitte is well justified. He would further submit that the appointment to the post of Principal is now required to be made by duly constituted Selection Committee in view of directions issued by Division Bench of this Court in Suo Motu Writ Petition No. 5157/2000.

8. Before I proceed to consider merits of the matter, it may be mentioned that there existed practice in the Marathwada region to appoint Incharge Principal, by selection from amongst teachers of the College as per choice of the Managing Committee. This practice was brought to limelight by a local newspaper. The appointments of lecturers as incharge Principal was questioned and a Division Bench of this Court took cognizance of such irregularity. In Suo Motu Petition No. 5157/2000, the Division Bench of this Court gave direction to the University and affiliated colleges to stop such practice. It appears that the University issued various circulars and made it incumbent to appoint full-fledged Principal as per statute Nos. 218 and 219 as Head of the College. The practice to appoint a person as only "Incharge Principal" was lateron discontinued. Still, however, it is pertinent to note that such practice was being followed uptill around year 2000.

9. The University had fixed certain norms for appointment to the post of Principal. The statutes bearing Nos. 217, 218 and 219 lay down service conditions of the teachers and principals of the affiliated colleges. The statute No. 218 (C)(i) relates to appointment of Principal. The sources of recruitment to the post of Principal are envisaged as shown below:

(i) Appointment in accordance with the provisions of Statute 219 through selection from amongst teachers of the College or from amongst the recognised institutions, as the case may be or

(ii) By direct recruitment. Sub-clause (c) of Sub-clause (2) of Statute 218(C) would show that where the Governing body decides to remove/dismiss or terminate the services of the Principal on any of the grounds mentioned in paragraph (ii) of Statute 222 (iii) he shall be relieved according to the rules prescribed in that behalf. The provisions of Statute 219 (A)(1)(b) would show that recruitment of Principal would be made on merit basis and that too by the Selection Committee. There was some anomalous position since the provision of statute 219(A) was being interpreted by the management to mean that the selection Committee procedure is required to be followed only when direct recruitment was to be undertaken. Of-course, it was wrong interpretation being put by the College managements. There is no dispute about the fact that petitioner -Prof. H.P. Gitte was appointed without following the selection procedure.

10. The appointment of petitioner Prof. H.P. Gitte was initially made on temporary basis and he was officiating as incharge Principal. The tenor of letter dated January 24, 1991 issued by Registrar of the University is to the effect that the proposal for approval to the appointment of petitioner Prof. H.P. Gitte was considered and the Vice Chancellor was pleased to accord approval to his appointment as incharge Principal. The University directed the President of Jawahar Education Society to fill-up the post of Principal as per University Grants Commission pattern. It appears that the Managing Committee adopted a resolution in its meeting dated 22.5.1993 and decided to appoint petitioner Prof. H.P. Gitte on permanent basis as Principal. The Managing Committee found that work of petitioner Prof. H.P. Gitte was quite satisfactory and, therefore, decided that he should be confirmed as Principal of the College. The most important fact is that by virtue of letter dated 24.5.1993 (Exh.A) the Vice President of Jawahar Education Society communicated to the petitioner Prof. H.P. Gitte that he was appointed as Principal of the College and had been confirmed as such w.e.f. 11.1.1993. He was placed in the U.G.C. pay-scale of Rs. 4,500-150-5,700-200-6,300/-. Thus, he was given substantive appointment by the Managing Committee as Principal and was placed in the regular pay-scale of Principal.

11. The management forwarded a proposal to the University for approval to the appointment of petitioner Prof. H.P. Gitte as Principal. The University by its letter dated 13.7.1993 (Exh.BI) informed that the approval could not be accorded since petitioner Prof. H.P. Gitte was not selected by Selection Committee as per procedure.

12. It is explicit from the record that there was a tug of war between two groups of trustees, one headed by Respondent No. l -Shridhar Gitte and another headed by late Suvvalal Wakekar. It appears that late Suvvalal was elected on Management Council of the University somewhere in February 1993. He desired to remove the petitioner Prof. H.P. Gitte and hence, got prepared a proposal for appointment of one Shri S.S. Mundhe, as incharge Principal in place of the petitioner. At his behest, the University gave approval to such appointment. The letter dated 2.3.1993 issued by the Registrar of the University would indicate that subsequently the mistake was realised and again the approval granted for appointment of Shri S.S. Mundhe, was recalled. The University directed to continue petitioner Prof. H.P. Gitte as incharge Principal. This was done since the University came to know about stay order issued by the Apex Court in respect of election of the President. In other words, when the University realised that late Suvvalal had no authority to submit any proposal for appointment of Shri S.S. Mundhe as incharge Principal then the earlier approval was recalled and the appointment of the petitioner Prof. H.P. Gitte was continued. The subsequent events would show that the claim of late Suvvalal as elected President of the Educational Trust was negatived by the competent Court. The game plan of late Suvvalal was frustrated. He could not appoint Shri S.S. Mundhe in the place of petitioner Prof. H.P. Gitte.

13. From the record it is conspicuous that late Suvvalal was searching for some or other reason to show exit to the petitioner - Prof. H.P. Gitte. He issued memos and called for explanation of Prof. H.P. Gitte. Lastly, he issued letter dated 29.12.1993 and terminated the services of petitioner Prof. H.P. Gitte as incharge Principal. The letter dated 29.12.1993 is signed by late Suvalal and would make it absolutely clear that the action taken against the petitioner Prof. H.P. Gitte is stigmatic and punitive. The contents of the said letter would show that charges of misconduct and insubordination were levelled against him. The letter dated 29.12.1993 reveals that Prof. H.P. Gitte was relieved from the post of incharge Principal w.e.f. 30.12.1993 and was posted as lecturer. He was directed to handover the charge of the post to Prof. Shri S.S. Mundhe. It appears that somewhere in September 1993, Suvvalal became member of the University Senate and could dominate the affairs of the University. Though, by letter dated 2.3.1993 the appointment of Shri S.S. Mundhe as incharge Principal was recalled by the University and petitioner Prof.H.P. Gitte was asked to continue in the post yet, by letter dated 3l.12.1993 the University temporarily approved the appointment of Shri S.S. Mundhe as incharge Principal. The fact remains that Shri S.S. Mundhe worked as incharge Principal thereafter till his superannuation.

14. The core issue is whether the reduction in rank/reversion of petitioner - Prof. H.P. Gitte was legal and proper. As stated before, late Suvvalal proclaimed himself to be President of the Educational Trust. He issued letter dated 29.12.1993 so as to revert petitioner - Prof. H.P. Gitte from the post of Principal to that of lecturer. The subsequent events would show that late Suvvalal could not have legally claimed to be the elected President. The change report filed by Respondent No. l was rejected by the Assistant Charity Commissioner but was accepted by the learned Additional District Judge, Ambejogai. The Misc. Civil Application No. 39/1996 filed by Respondent No. l Under Section 72 of the Bombay Public Trusts Act was allowed, whereas Misc. Civil Application No.35/96 filed by late Suvvalal was dismissed. It appears that letter dated 29.12.1993 could not be issued by late Suvvalal as he had no legal authority, whatsoever to demote/revert the petitioner -Prof. H.P. Gitte. His such action was malafide and to say the least was for collateral purpose.

15. The contention of learned Counsel for the contesting respondents/interveners is that though, order of reversion could be branded as illegal and late Suvvalal had no legal authority to issue the same yet, the petitioner - Prof. H.P. Gitte cannot claim reinstatement for the reason that he was not appointed by Selection Committee constituted under statute No. 219. I am unable to persuade myself to go along this line of argument. The appointment of Prof. H.P. Gitte was confirmed as a result of the resolution passed by the Managing Committee and he was accordingly informed by letter dated 24.5.1993 (Exh.A). He was placed in regular pay-scale of Principal. The letter does not indicate that his such appointment was made subject to approval by the University. The said letter does not show that it was adhoc appointment. On the other hand, the letter referred to above would show that his services as Principal came to be regularised and confirmed. There is difference between "irregular appointment and "void abinitio appointment". The appointment to the post of Principal is required to be made by the Managing Committee of the College after adopting regular procedure. The candidate is required to undergo selection procedure and Selection Committee is to be constituted as per statute No. 219. The appointment of petitioner - Prof. H.P. Gitte was quite irregular since he was not selected by the Selection Committee. This was procedural lapse committed by the management Committee of the college. The petitioner himself was not responsible for such an irregularity. In case of Ram Sarup v. State of Haryana and Ors. the Apex Court held that irregular appointment could be regularised as and when the candidate would acquire the necessary qualifications to hold the post. The Apex Court observed as under:

The question then arises as to what was the effect of breach of Clause (1) of Rule 4 of the Rules. Did it have the effect of rendering the appointment wholly void so as to be completely ineffective or merely irregular, so that it could be regularised as and when the appellant acquired the necessary qualifications to hold the post of Labour-cum-Conciliation Officer. We are of the view that the appointment of the appellant was irregular since he did not possess one of the three requisite qualifications but as soon as he acquired the necessary qualification of five years experience of the working of labour laws in any one of the three capacities mentioned in Clause(1) of Rule 4 or in any higher capacity, his appointment must be regarded as having been regularised.

16. The irregularity committed by the management of the college could be cured after allowing the petitioner Prof. H.P. Gitte to undergo selection procedure as required under statute No. 219. The appointment could not be regarded as totally void. There are lapses which can be condoned by the University within its discretion. The provisions of statute No. 219 would set out methodology for selection to the post of Principal. The petitioner -Prof. H.P. Gitte was then duly qualified and experienced for such appointment. The requirement of added educational qualification as NET/CET was subsequently introduced. At the relevant time such educational qualification was not a condition precedent for appointment to the post of Principal. The illegal deprivation of the petitioner - Prof. H.P. Gitte from the post of Principal has surely caused a stigma as well as humiliation to him. The approval of the University to such appointment could be sought by the management after making a request to constitute Selection Committee under statute No. 219.

17. It appears that the Tribunal failed to exercise its jurisdiction only by saying that the question of approval to the appointment is exclusively within the domain of the University and as such the reinstatement of the petitioner - Prof. H.P. Gitte was impermissible. In my opinion, when the Tribunal reached the conclusion that the entire action of late Suvvalal was totally illegal, vindictive and malacious then the petitioner was entitled to be reinstated to the post of Principal at least on adhoc basis till he could be selected by the duly constituted Selection Committee. The Tribunal could not have denied such relief for the reason that there was no approval by the University and hence the legal fora was helpless. The Tribunal has implicit jurisdiction to pass just and necessary orders so as to remove injustice caused to the party like the petitioner - Prof. H.P. Gitte.

18. The case of "State of Haryana v. S.M. Sharma and Ors. is not applicable in view of the facts obtained herein. In the given case, the order issued by the Chief Administrator was clear and the incumbent was assigned current duty charge. There was no change in the pay-scale. He was given current duty charge without any order of appointment to the higher post. He was not allowed to draw pay-scale of the higher post. So, it was held that there was no promotion and the appointment in question was not to the post but it was only an additional charge given to the person. It was held that withdrawal of such current duty charge would not amount to reversion. In the present case, however, there is ample evidence to show that petitioner -Prof. H.P. Gitte was allowed to draw pay-scale available to the post of Principal. He was appointed as incharge Principal and subsequently the management decided to confirm his services. He was given a regular appointment letter without any reservation of right in favour of the management. Consequently, his is a different case from that of the case covered by the above referred dictum of the Apex Court.

19. The learned Counsel for the contesting respondents would submit that reversion of the petitioner -Prof. H.P. Gitte is otherwise proper since he was not appointed by following the selection process as provided under statute No. 219. It need not be reiterated that his such appointment could be regarded as irregular and it may be found that he was not entitled to continue as Principal. Still, however, the clinching question is as to whether late Suvvalal had any authority to remove the petitioner Prof. H.P. Gitte from the post of Principal or for that matter as incharge Principal. The answer is obviously "No". It is also undisputed that petitioner Prof. H.P. Gitte was not given any opportunity of hearing. No enquiry was held against him. He was attributed misconduct and also insubordination. The reversion was obviously for collateral reasons, actuated with malice and met with evil consequences to the petitioner. In case of Jagdish Prasad Shastri v. State of U.P. and Ors. , the Apex Court has held that mere form of the order reverting an officer to his substantive post even if he is appointed temporarily or on officiating capacity to a superior post is not decisive. The relevant observations may be reproduced as follows:

It may be observed that according to the decisions of this Court the mere form of the order reverting an officer to his substantive post even if he is appointed temporarily or in an officiating capacity to a superior post, is not decisive. If the order is made for a collateral purpose, or if in making the order the officer is actuated by malice, the order is liable to be set aside. Again if the order involves a penalty, even if on the face of it the order does not bear any such impress, the officer prejudiced by the making of that order is entitled to prove that he has been denied the protection of the guarantee under Article 311 of the Constitution, or of the protection of the rules governing his appointment. An order of reversion made due to exigencies of the service in consequence of which an officer who was temporarily appointed or appointed in an officiating vacancy may not be challenged. But the order passed maliciously or on collateral considerations or which involves penal consequences, or denies to the civil servant the guarantee of the Constitution or of the rules governing his employment, is always open to challenge by appropriate proceedings.

20. So far as the question of approval by the University is concerned, it may be said that the management may follow procedure enumerated in statute No.219. If the management has committed illegality then it will have to face the consequences. The petitioner -Prof. H.P. Gitte is unconcerned with formality of the "approval to the post" since he was given unconditional appointment order dt.24.5.1993 (Exh.A.) The removal/reversion of the petitioner was not out come of the refusal to grant approval by the University. The Tribunal failed to consider that the University by its letter dated 2.4.1993 had again continued petitioner - Prof. H.P. Gitte as incharge Principal. The issue of legal requirement of approval to the appointment was, therefore, not much relevant for determination of the claim put forth by the petitioner -Prof. H.P. Gitte. The Tribunal erred, therefore, while denying the relief of reinstatement to him. The appointments made lateron, including that of Respondent No. 4, are subject to the decision of this writ petition and hence the incumbent has no legal right to claim continuation in the post as Principal.

21. Considering the totality of the circumstances and the legal position discussed hereinbefore, I am of the opinion that part of the impugned order is incorrect and illegal. There was no justification to deny reinstatement to the petitioner -Prof. H.P. Gitte as Principal of the College. He did not work during the relevant period as Principal. He was relieved from the charge w.e.f. 30.12.1993. It would be appropriate and in the interest of justice to direct that he shall be paid 50% of the difference of pay of his post as lecturer and that of the Principal from the said date of reversion i.e. 30.12.1993 till he is reinstated as Principal by the College. This amount of expenditure shall be incurred by the College management. The management of the College may claim such amount from properties of late Suvvalal by taking appropriate legal action inasmuch as the financial burden is caused due to callous, illegal and malicious action of late Suvvalal. The petitioner - Prof. H.P. Gitte could be reinstated on adhoc basis and his such appointment shall be subject to the approval of the University and if he would not be found suitable by the Selection Committee, either due to ineligibility, unfitness or lack of qualification and if such condition cannot be relaxed then the management can pass further appropriate order of his removal.

22. In the result, W.P. No. 3031/1994 filed by the petitioner - Prof. H.P. Gitte is allowed. The impugned order is modified. The finding of the Tribunal that removal/reversion of the petitioner from the post of Principal is illegal and improper stands confirmed. However, remaining directions are quashed and are substituted by following directions:

The petitioner shall be reinstated as Principal of the College within a period of two months. He shall be paid 50% of the difference of pay from the date of his removal/reversion i.e. 30.12.1993 till the date of his reinstatement, as may be admissible to the post of Principal from time to time and to the post of lecturer, during the aforesaid period, alongwith the incidental benefits like D.A. etc. The payment shall be made by management of the College from its own funds and the management would be at liberty to recover such amount from the properties of late Suvvalal, through the legal process as may be permissible, if it so decides to do. The reinstatement and appointment of the petitioner shall be on adhoc basis as Principal subject to his selection by the duly constituted Selection Committee as per statute No. 219. The Selection Committee shall be constituted within a period of two months after reinstatement of the petitioner and that the process of selection shall be conducted within two months thereafter, allowing the petitioner - Prof. H.P. Gitte and other equally placed/eligible candidates to participate in the process of selection. The University would be at liberty to consider relaxation of NET/CET,M.Phil/Ph.D. qualification to the extent of the petitioner if it is so permissible under the Rules. If he is not selected by the duly constituted Committee, then the college management shall be at liberty to revert him to the substantive post as lecturer. He is entitled to recover costs of Rs. 10,000/-from the Respondents Nos. 1 and 2.

23. The Respondents shall bear their own costs.

24. The Writ Petition No. 5635/1995 is dismissed. The Civil Application St.No.16281/2006 for permission to prosecute W.P. No. 5635/95 is allowed.