Bombay High Court

Parle Tilak Vidyalaya ... vs University Of Bombay And Anr on 30 November, 2011

Bench: D.K. Deshmukh, Anoop V.Mohta

                                  1                               WP1840/03




            IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                       
                 ORDINARY ORIGINAL CIVIL JURISDICTION




                                               
                     WRIT PETITION NO.1840 OF 2003




                                              
    Parle Tilak Vidyalaya Association                 ...Petitioners




                                     
           v/s
                        
    University of Bombay and anr.                     ...Respondents

Mr Gaurav Joshi with Mr Anirudh Joshi and Ms Rucha

Jog Raheja i/b M/s R.V.J. Associates for

Petitioners.

Mr Susheel Mahadeshwar for Respondent No.1.

Ms Madhubala Kajle, AGP for Respondent No.2.

CORAM : D.K. DESHMUKH AND ANOOP V. MOHTA JJ.

    DATE    : 30TH NOVEMBER 2011.





                                     2                                 WP1840/03




    P.C. :-




                                                                           
    1]         The    present     petition         is      filed         by      the

Society registered under the Societies Registration

Act 1960, which runs three Senior Colleges, all of

which are affiliated to the respondent No.1

University. The Colleges are (1) Sathaye College of

Arts, Science and Commerce, Vile Parle (East); (2)

M.L. Dahanukar

College of Commerce, Vile Parle

(East) and (3) Mulund College of Commerce, Mulund

(West). The present petition has been filed

basically challenging the decision of the University

directing the College to club the posts of Teachers

in all the three Colleges together for the purpose

of reserving the vacancies for candidates belonging

to backward class. The University has filed its

reply. According to the University, the University

has taken decision that the posts in different

cadres in the three Colleges of the petitioners are

to be clubbed together for the purpose of reserving

vacancies for backward class candidates in view of

the Government Resolution dated 20th January 1990

3 WP1840/03

and Government Circular dated 25th November 1994.

Perusal of the Government Resolution dated 20th

January 1990 shows that it contains policy decision

of the State Government that for the purpose of

giving effect to the reservation policy of the State

Government, cadres having small number of posts in

different Universities and affiliated Colleges

should be clubbed together. By Government Circular

dated 25th November ig 1994, a direction has been

issued that if an Education Society is running more

than one Senior College, then all the posts in one

cadre in all the Colleges should be clubbed together

for the purpose of implementing the policy of

reservation of posts for backward class. For

example, if there are 30 posts of Lecturer in three

Colleges, then all be clubbed together irrespective

of the subjects for which those posts are. The

short submission on behalf of the petitioners is

that the direction contained in the aforesaid

Government Resolution and the Government Circular is

contrary to the judgment of the Supreme Court in the

case of Dr Suresh Chandra Verma and others v/s The

4 WP1840/03

Chancellor, Nagpur University and others, reported

in (1990) 4 SCC 55. It is submitted that the

Supreme Court in that judgment has upheld the

judgment of the Full Bench of this Court which had

held that in so far as the posts under University

are concerned, the posts can be clubbed together

subject-wise for the purpose of giving effect to the

reservation policy and not cadre-wise. In other

words, it is submitted that the posts of Lecturer in

all the three Colleges, irrespective of the

subjects, cannot be clubbed together.

2] We have heard the learned counsel appearing

for University. He submits that though clubbing of

posts cadre-wise irrespective of subjects in which

the posts are may not be possible, it is possible to

club the posts cadre-wise and subject-wise.

3] It is clear that under the provisions of

the Maharashtra Universities Act 1994, the policy of

the State Government in relation to reservation is

to be implemented by the University. The University

5 WP1840/03

by filing affidavit in this petition has made it

clear that a direction to the petitioners for

clubbing of posts in cadres in all the Colleges is

based on Government Resolution dated 20th January

1990 and the Government Circular dated 25th November

1994. Perusal of the Government Circular dated 25th

November 1994 shows that it directs clubbing of all

the posts in one cadre in all the Colleges which are

conducted by one Education Society for the purpose

of reservation, it does not take into consideration

the subject in which particular post may be

available. Perusal of the judgment of the Supreme

Court in Dr Suresh Chandra Verma s case shows that

this question was considered by the Supreme Court in

that judgment. The University while issuing

advertisement had clubbed all the posts of Lecturer

in various subjects together and applied the

reservation policy. The Full Bench of this Court

held that such procedure is illegal. When that

judgment of the Full Bench was challenged in the

Supreme Court in paragraph 11, the Supreme Court has

observed thus :-

6 WP1840/03

11. The argument based on section 57(4)

(a) of the Act to support the procedure

adopted by the University is, according to

us, not well merited. The contention is

that since section 57(4)(a) requires the

University to state in the advertisement

only the total number of posts and the

number of reserved posts and not post-wise,

i.e. subject-wise, the employment notice in

question was not bad in law. According to

us, the word post used in the context has

a relation to the faculty, discipline, or

the subject for which it is created. When,

therefore, reservations are required to be

made in posts , the reservations have to

be post-wise i.e. Subject-wise. The mere

announcement of the number of reserved

posts is no better than inviting

applications for posts without mentioning

the subjects for which the posts are

advertised. When, therefore, section 57(4)

7 WP1840/03

(a) requires that the advertisement or the

employment notice would indicate the number

of reserved posts, if any, it implies that

the employment notice cannot be vague and

has to indicate the specific post, i.e. The

subject in which the post is vacant and for

which the applications are invited from the

candidates belonging to the reserved

classes.

A non-indication of the post in

this manner itself defeats the purpose for

which the applications are invited from the

reserved category candidates and

consequently negates the object of the

reservation policy. That this is also the

intention of the legislature is made clear

by section 57(4(d) which requires the

selection committees to interview and

adjudge the merits of each candidate and

recommend him or her for appointment to

the general posts and the reserved

posts if any, advertised.

                                        8                                WP1840/03

               The    Supreme      Court      has    thus      clearly           held

that the reservations are required to be made in

posts and the reservations have to be post-wise i.e.

Subject-wise and not cadre-wise irrespective of

subject in which the post is. Though it was argued

before us by the learned counsel appearing for

University that for the purpose of giving effect to

the reservation policy, the Colleges which are run

by one Institution can be asked to club the posts in

a particular cadre subject-wise, in our opinion,

that question does not arise for consideration in

the present petition because in the present

petition, what is challenged is the direction issued