Bombay High Court
Varsha Manohar Dhongade vs The Marathwada Legal And General ... on 20 December, 2017
Bench: R.D. Dhanuka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4457 OF 2006
with
CIVIL APPLICATION NO.11013 OF 2008
in
WRIT PETITION NO.4457 OF 2006
Varsha D/o Manohar Dhongade )
Aged 38 years, occu: Nil, )
R/o B-4, Abhishekh Apartment, )
Vedant Nagar Railway Station Road, )
Aurangabad. ) .. Petitioner/
Applicant
Versus
1. The Marathwada Legal and General )
Education Society (Through Its Secretary )
Shri J.K.Vasadikar) )
Aged 45 years, Occu: Legal Profession, )
R/o.M.P.Law College Campus Samarthanagar)
Aurangabad. )
2. The Principal )
Mahila Kala Mahavidyalaya, )
Aurangabad. )
3. Dr.Babasaheb Ambedkar Marathwada )
University, (Through Its Registrar) )
University Campus, Aurangabad. ) .. Respondents
---
Ms.Pradnya Talekar for the petitioner.
Mr.S.P. Shah for the respondent nos.1 and 2.
---
CORAM : R.D. DHANUKA AND
SUNIL K. KOTWAL, JJ.
RESERVED ON : 12th October 2017
PRONOUNCED ON : 20th December 2017
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Judgment ( Per R.D. Dhanuka, J.):
. By this writ petition filed under Article 226 of the
Constitution of India, the petitioner seeks writ of mandamus against the
respondent nos.1 and 2 i.e.The Marathwada Legal and General Education
Society and the Principal respectively to apply for de-reservation of post
of Lecturer in English reserved for Scheduled Tribes and to take
necessary steps for de-reservation of posts, as provided under
Government Resolution Dated 5th December 1994. The petitioner also
seeks a writ of certiorari for quashing and setting aside the decision of
the management Council of Dr.Babasaheb Ambedkar Marathwada
University, Aurangabad, the respondent no.3 herein by which the
recommendations of the University Grievance Redressal Committee in
respect of regularization of services of the petitioner in its meeting held
on 29th January 2003 was rejected. Some of the relevant facts for the
purpose of deciding this petition are as under :-
2. It is the case of the petitioner that the respondent no.1-
Society is running Women College as well as Law College at
Samarthanagar, Aurangabad duly registered under the Bombay Public
Trusts Act, 1950 as well as Registration of Societies Act, 1860. The
petitioner possessed M.A. (English). It is the case of the petitioner that
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the petitioner had passed M.Phil examination. She had passed
examination prior to the date of filing of writ petition but had to submit
thesis for the purpose of obtaining M.Phil degree. The petitioner had
also applied for National Eligibility Test Examination and had proposed
to appear for the said examination which was scheduled to be held on
25th June 2006.
3. On 1st July 1994, the petitioner applied for post of
Lecturer in English pursuant to an advertisement published in daily
"Lokmat." The petitioner was selected by the Local Managing
Committee and was appointed as Contributory Lecturer in English in
Mahila Kala Mahavidyalaya, Aurangabad vide an order dated 5th
October 1994.
4. It is the case of the petitioner that in the meanwhile, the
post of Lecturer in English was advertised in daily "Lokmat Times"
published on 18th August 1996. The petitioner appeared before the duly
constituted Selection Committee. The petitioner was interviewed by the
Committee consisting of President of the respondent no.1-Society,
nominee of the Vice Chancellor of the University, Subject Expert, Head
of Department of English of the College and the Principal of the College.
The said duly constituted Selection Committee selected the petitioner and
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recommended her name for the said post. The Vice Chancellor of the
University granted an approval to the appointment of the petitioner as a
Lecturer in English on temporary basis upto the end of the second term
of the academic year 1996-97. It is the case of the petitioner that the
University, however, did not grant permanent approval for the obvious
reason that she did not belong to Scheduled Tribe and at the same time,
she had not acquired NET/SET qualification. The said post in which the
petitioner was appointed was reserved for Scheduled Tribe. In the
advertisement, it was made clear that in case no candidate from
Scheduled Tribe category was available, then candidate from another
category would be selected.
5. It is the case of the petitioner that the petitioner was
appointed as full time Lecturer in English again on temporary basis and
on probation for the academic year 1996-97 with effect from 1 st October
1996 subject to approval of Competent Authorities vide letter dated 30 th
August 1996. The Vice Chancellor of the respondent no.1 again
approved her appointment as Lecturer in English on temporary basis
upto second term of the academic year 1996-97 vide an order dated 12 th
December 1996 and she was given workload of full time lecturer in
English.
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6. The said post of lecturer in English was again advertised by
the respondent nos.1 and 2 for third time in daily "Tarun Bharat" in its
issue dated 22nd June 1998. It is the case of the petitioner that her
appointment was continued again as contributory Lecturer in English
with effect from 6th August 1994 and was given workload of full time
lecturer.
7. It is the case of the petitioner that the said post of lecturer in
English was again advertised for forth time in daily "Tarun Bharat" in
its issue dated 1st October 1998. Since the candidate belonging to
Scheduled Tribe for whom the said post was reserved was not available,
the services of the petitioner were continued as contributory Lecturer in
English with effect from 25th June 1999 and thereafter with effect from
20th June 2000 vide orders dated 23rd June 1999 and 19th June 2000
respectively. The said post of Lecturer in English was again advertised
i.e. fifth time in daily "Sakal" in its issue dated 24 th October 2001. It
is the case of the petitioner that she was continued as contributory
Lecturer in English. All throughout for the academic year 1997-98 to
2001-02, the petitioner was given workload of full time Lecturer in
English.
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8. It is the case of the petitioner that the said post of Lecturer
in English was again advertised i.e. sixth time in daily "Times of India"
in its issue dated 26th March 2002. The services of the petitioner were
continued as contributory Lecturer in English with effect from 14 th
July 2003 vide order dated 13 th July 2003. The said post was once again
advertised i.e. for seventh time in daily "Sakal" in its issue dated 26 th
March 2002.
9. It is the case of the petitioner that the Principal of the
College sought permission to shift reservation of Scheduled Tribe for
the post of Lecturer in English to that of Lecturer in Marathi since one
post of Lecturer in English had fallen vacant due to retirement of Dr.Lata
Mohrir. The Director, Board of College and University Development
communicated the decision of the Vice Chancellor shifting reservation
meant for Scheduled Tribe from the post of Lecturer in English to the
post of Lecturer in Marathi vide order dated 11th September 2003. It is
the case of the petitioner that since the post of Lecturer in English was
de-reserved, the same was again advertised in daily "Deogiri Tarun
Bharat" in its issue dated 2nd November 2003. It is the case of the
petitioner that her services were continued on contract basis despite the
fact that she was given workload of full time Lecturer vide an order dated
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12th November 2003. She appeared before the Local Selection Committee
consisting of Chairman of the Governing Body, nominee of Backward
Classes, Lady Representative, Nominee of Director of Higher Education,
Head of Department, two experts nominated by the Chairman and the
Principal of the College for the purpose of selection/ appointment as
College teacher on contract basis.
10. It is the case of the petitioner that her name was
recommended by Local Selection Committee subject to the decision of
the University and College tribunal in the proceedings filed by the
another Lecturer Smt. Mehrunissa Saheblal Pathan. It was the case of
the said Smt. Mehrunissa Saheblal Pathan in the said appeal filed before
the University and College tribunal that the post of Lecturer in English
which was reserved for Scheduled Tribe could not have been de-reserved
and in any case, the reservation did not shift from the post of Lecturer
in English to the post of Lecturer in Marathi. By an order and judgment
dated 2nd December 2004 passed by the University and College tribunal,
Aurangabad, the said appeal filed by the said Smt. Mehrunissa Saheblal
Pathan came to be dismissed. The University and College tribunal,
however, made it clear in the said order that de-reservation of the post
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has to be made only as per the direction contained in the Government
Resolution dated 5th December 1994.
11. It is the case of the petitioner that the Government of
Maharashtra has taken a policy decision regarding de-reservation of
post reserved for Backward Classes vide Government Resolution dated
5th December 1994. As per the said Resolution, the post reserved for
either Schedule Castes or Schedule Tribes or VJ or Nomadic Tribes or
Other Backward Classes could be kept vacant for a period of five years
if the candidates belonging to such reserved post was not available. If
the candidate from particular reserved category was not available
despite efforts made continuously for five years, post reserved for one
category could be filled in by exchanging reservation for some other
reserved category as per the said Resolution. If the candidate was not
available in the sixth year, the management was required to appoint the
candidate from open category by getting the post de-reserved with an
approval of the General Administration Department.
12. The respondent nos. 1 and 2 issued a fresh advertisement in
daily "Lokmat" in its issue dated 13 th May 2006 inviting applications
for two posts of Lecturer in English of which one is reserved for
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Schedule Tribes. It is the case of the petitioner that since 17th March
2006, the petitioner was out of service.
13. In the meanwhile, in the month of October 2002, the
petitioner applied for regularization of her services to the University
Grievance Redressal Committee, Aurangabad. It is the case of the
petitioner that the said University Grievance Redressal Committee had
upheld the grievance of the petitioner and recommended her case for
absorption/regularization of services on the lines of the decision taken
by the Management Council in its meeting held on 14 th March 2002.
The said University Grievance Redressal Committee had passed a
Resolution in its meeting held on 22 nd November 2002 recommending
the case of the petitioner for absorption/regularization of services. The
said recommendation was placed before the Management Council in its
meeting held on 29th January 2003 and was however rejected by the
Management Council on the ground that the post of Lecturer in English
was reserved for Scheduled Tribes. The said information was supplied
to the petitioner vide letter dated 25th August 2006 by the Information
Officer and Deputy Registrar (Education) of the respondent no.3-
University.
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14. It is the case of the petitioner that the Management Council
had decided to regularize the services of some other candidates who
were appointed against the post reserved for Scheduled Tribe in its
meeting held on 14th March 2002. The petitioner however, was singled
out and was discriminated contrary to the recommendations made by
the University Grievance Redressal Committee. The petitioner therefore
filed a writ petition and initially prayed for a writ of mandamus against
the respondent nos.1 and 2 to apply for de-reservation of the post of
Lecturer in English reserved for Scheduled Tribes and to take steps for
de-reservation of the said post in terms of the Government Resolution
dated 5th December 1994 and prayed for a writ of certiorari for quashing
and setting aside the decision taken by the Management Council of the
respondent no.3-University refusing to regularize the services of the
petitioner.
15. During the pendency of this writ petition, this Court passed
an order dated 27th June 2006 granting ad-interim injunction restraining
the respondents from making any appointment against the post of
Lecturer in English pursuant to the advertisement published in daily
"Lokmat" in its issue dated 13 th May 2006. However, by an order dated
6th November 2006, the said ad-interim order granted by this Court on
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27th June 2006 came to be vacated and this writ petition was admitted.
In the reply filed by the management before this Court, it is stated that
the interviews for the said post advertised were already held and certain
candidates were selected. Names of such candidates find place in
paragraph 8 of the affidavit-in-reply filed by the respondent no.3 on 8 th
August 2006. This Court, however, while vacating the ad-interim
injunction made it clear that the appointment to be made by the
respondent-management to the subject post of Lecturer (English) would
be subject to the outcome of this writ petition.
16. During the pendency of this writ petition, the petitioner
filed an appeal in the month of June, 2017 before the University and
College tribunal, Aurangabad inter alia praying for an order and direction
against the respondent nos.1 and 2 to reinstate the petitioner on the post
of the Assistant Professor of English in Scheduled Tribe category post
being de-reserved as open category post and grant entire back wages
with interest 18% p.a. The petitioner also applied for an order and
direction to regularize the services with effect from date of first
appointment i.e. 5th October 1994 and to grant all other consequential
benefits including arrears of salary, seniority in service etc. The
petitioner also applied for condonation of delay in filing the said appeal
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before the University and College tribunal. The said application for
condonation of delay as well as the said appeal are pending before the
University and College tribunal.
17. Ms.Talekar, learned counsel appearing for the petitioner
invited our attention to various annexures to the affidavit-in-reply filed
by the respondent no.1 and also affidavit-in-rejoinder and also the
averments and the annexures to the short affidavit dated 19th June 2017.
18. It is submitted by the learned counsel that since the said post
of Lecturer in English which was reserved for Scheduled Tribe was
advertised for more than seven times in view of the fact that the candidate
for the said category was not available and on which the petitioner was
continuously appointed as contributory Lecturer and her appointment
was approved from time to time by the respondent no.3, the respondent
nos.1 and 2 were required to apply for de-reservation of post for open
category candidate by following requisite procedure under the
Government Resolution dated 5th December 1994. She submits that the
petitioner was already selected by duly constituted Selection Committee
and thus her appointment was required to be regularized once the post
of Lecturer in English was de-reserved. She submits that the Management
Council of the respondent no.3 could not have refused to regularize
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the services of the petitioner though the same was recommended by the
University Grievance Redressal Committee in its meeting dated 29 th
January 2003.
19. It is submitted by the learned counsel that though the
petitioner was appointed on temporary basis from time to time, the
petitioner was all throughout given workload of the Lecturer of English
and her appointment was made by the duly constituted Selection
Committee appointed by the respondent no.3-University. The approval
was granted by the respondent no.3-University from time to time. It is
submitted that the Government Resolution dated 5 th December 1994 was
applicable and binding on the respondents and in view of the fact that
the Scheduled Tribe category candidate was not available for five years
and thereafter even for the sixth year, though other reserved category
candidate was available, in the seventh year, the said post was liable to
be de-reserved for the open category candidate. She submits that instead
of applying for de-reserving the said post which was reserved for
Scheduled Tribe candidate, the respondent no.1 applied for permission
to shift the said reserved post from the post of Lecturer in English to the
post of Lecturer in Marathi.
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20. Learned counsel for the petitioner invited our attention to
the order and judgment dated 2nd December 2004 delivered by the learned
Presiding Officer, University and College Tribunal, Aurangabad thereby
dismissing the Appeal No.BAMU/28/2003 filed by Mehrunnisa S.
Pathan against the respondents. She submits that the University and
College tribunal had though dismissed the appeal filed by the said
Mehrunnisa S. Pathan, it was held by the said tribunal that the tribunal
need not go into the question whether the shifting of reservation is
legal and proper or not. The said tribunal considered the Government
Resolutions dated 5th December 1994, 24th April 1995 and 18th October
1997 and held that the Government Resolutions dated 4 th April 1995 and
18th October 1997 did not make any change with respect to direction
given in the Government Resolution dated 5 th December 1994 regarding
de-reservation. It is held that any de-reservation is to be effected, then
it must be effected as per the directions given in Government Resolution
dated 5th December 1994. It is held that post of Lecturer of any category
has to be reserved and for that category the 100 points roster is to be
made applicable and the reservation is to be fixed as per 100 points
roster.
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21. The tribunal held that in that case, one post of Lecturer in
English was reserved for Scheduled Tribe category, then de-reservation
can be made only as per the directions contained in the Government
Resolution dated 5th December 1994. The tribunal made it clear that
there was clear misunderstanding on the part of the Management of the
Government Resolutions dated 5th December 1994 and 24th April 1995.
The University has no such power to de-reserve such post once the
same was reserved for a particular caste or tribe. The 50% reservation
is not subject wise but it is category wise and the post of Lecturer is one
such category where there should be 50% reservation. A proposal has to
be submitted to the General Administration Department and then as per
the directions contained in the said Government Resolution, the de-
reservation can be permitted after the approval from the concerned
Minister and the Chief Minister. The tribunal held that the services of
the appellant in that matter stood terminated because her appointment
was for a fixed period and on the expiry of that period her services
stood terminated and not because of change in reservation. It is
submitted by the learned counsel that various findings rendered by the
tribunal against the respondent nos.1, 2 and 3 have attained finality in
view of the admitted fact that none of these respondents have impugned
the said decision and/or findings rendered by the said tribunal.
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22. Learned counsel for the petitioner invited our attention to the
Government Resolution dated 2nd November 2005 issued by the State
Government and would submit that under the said Resolution, it was
made clear that the reservation post should be de-reserved and no fresh
advertisement is required for filling such de-reserved post and teachers
who were already in service for more than 10 to 12 years, their services
should be continued. She submits that by the said Resolution dated 2 nd
November 2005, the conditions for issuing fresh advertisement was
deleted and the teachers who were continuing in the employment with
the Institution were to be continued. It is submitted by the learned
counsel for the petitioner that in view of the Resolution dated 2 nd
November 2005, since the petitioner was already working for 10 to 12
years with the respondent no.1, the petitioner was entitled to be
absorbed and her services were required to be regularized. She submits
that the impugned order passed by the Management Council of the
respondent no.3 refusing to regularize the services of the petitioner
though the University Grievance Redressal Committee had recommended
the services of the petitioner is contrary to the Government Resolution
dated 2nd November 2005 and also contrary to the law. She submits that
when the petitioner was appointed for the first time in the year 1991,
the requirement of passing NET examination was not mandatory.
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23. Learned counsel for the petitioner placed reliance on the
following judgments in support of the aforesaid submissions :-
(i) Nitin Anand Anbhule Vs. State of Maharashtra & Ors. reported
in 2007 SCC OnLine Bom 658 (paragraphs 11, 13 and 18);
(ii) Deepa Gourang Murdeshwar Katre Vs. Principal V.A.V.College
of Arts and Ors., reported in (2007) 14 SCC 108 (paragraph 38);
(iii) Harshendu Vinayak Madge Vs.Chembur Trombay Education
Society, reported in 2009 (3) Mh.L.J. 323 (paragraphs 17, 18 &
19);
(iv) Ashok Chandrashekhar Rao Vs. University of Mumbai & Ors,
reported in 2016 SCC OnLine SC 1200 (paragraphs 8 & 9);
(v) R.B.Singh Vs. Principal, Sonopant Dandekar Arts College,
Palghar and others, reported in 2007 (4) Mh.L.J. 846
(paragraphs 2 & 4);
(vi) Ruchira S. Manjarekar Vs. Principal, D.G.Ruparel College of
Arts, Science and Commerce and others, reported in 2014 (3)
Mh.L.J. 487 (paragraphs 14 & 18);
(vii) Kakoli Shyamlal Sircer Vs. Nagpur University and others,
reported in 2002 (2) Mh.L.J. 673 (paragraphs 6 & 7) and;
(viii) Maharashtra Federation of University & College Teachers
Organizations Vs. The State of Maharashtra & Ors., reported in
2015 SCC OnLine Bom 6820 (paragraphs 35, 58, 75 to 81,
85 to 87 and 93).
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24. Mr.Shah, learned counsel appearing for the respondent
nos.1 and 2, on the other hand, invited our attention to various averments
made by the petitioner in her writ petition, to various exhibits annexed to
the pleadings and would submit that it was the case of the petitioner
herself that the respondent nos.1 and 2 had already sought permission to
seek reservation of Scheduled Tribe from the post of Lecturer in English
to the post of Lecturer in Marathi and the said post of Lecturer in
English is de-reserved. He submits that prayer clause (A) for writ of
mandamus against his client to apply for de-reservation of post of
Lecturer in English itself was not maintainable. He submits that in so
far as the additional prayer which was inserted by way of amendment to
the petition i.e. prayer clause (E) is concerned, the petitioner had already
filed an appeal before the University and College Tribunal inter alia
praying for an order of regularization of her services which appeal is
still pending. No such relief can be granted by this Court in this writ
petition.
25. Learned counsel invited our attention to the averments made
in paragraph 41 of the writ petition stating that the petitioner was
restricting her claim in this petition to the decision not to de-reserve and
thus cannot apply for regularization of her services in the teeth of the
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averments made in paragraph 31 of the writ petition. He submits that
admittedly since 17th March 2006, the services of the petitioner were
not continued by the respondent nos.1 and 2. Interim relief initially
granted by this Court in favour of the petitioner admittedly came to be
vacated by this Court by a detailed order dated 6 th November 2006. The
respondent nos.1 and 2 has already appointed one of the candidates to
the said post who continues to be in the employment of the respondent
nos.1 and 2 on the said post. Though the name of the said candidate was
disclosed in the affidavit-in-reply filed by the respondent nos.1 and 2
long back, the petitioner has not impleaded the said Lecturer as a party
to this petition. No relief thus can be granted in favour of he petitioner
which would affect the said candidate of Lecturer without her
impleadment as a party to this petition.
26. In support of this submission, learned counsel invited our
attention to the order dated 6th November 2006 passed by this Court
recording a statement made by the learned counsel for the petitioner that
the petitioner was seeking a limited relief for de-reservation of the post
and did not seek to challenge the alleged termination of the services of
the petitioner. He submits that the petitioner cannot thus seek a relief
for regularization of her services also in view of her statement made
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before this Court on 6th November 2006. He submits that when this Court
allowed the petitioner to carry out amendment to the petition and to seek
regularization of her services, the statements made by the petitioner in
the petition and before this Court on 6th November 2006 were not
brought to the notice of this Court. This Court thus cannot consider the
relief for regularization of her services in this petition.
27. Learned counsel for the respondent nos.1 and 2 submits
that admittedly when the petitioner was appointed for the first time and
since the date of her appointment, she did not possess NET/SET
qualification. She has admittedly passed M.Phil examination after she
ceased to be in service with the respondent nos.1 and 2. In so far as the
issue of de-reservation of the post is concerned, it is submitted by the
learned counsel that prior to the year 2002-03, there were two posts of
English teachers sanctioned by the University. One additional post was
sanctioned in the year 2002-03. He invited our attention to the
averments made in paragraph 8 of the writ petition admitting that the
petitioner had not acquired NET/SET qualification even on the date of
filing of the said writ petition. He submits that the petitioner was thus
appointed on temporary basis since the said post was reserved for
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Scheduled Tribe candidate who was not available and in view of the fact
that the petitioner was not having requisite NET/SET qualification.
28. It is submitted by the learned counsel that vide letter dated
1st September 2003, the respondent no.1 made a proposal to the
respondent no.3-University for transfer of reserved post of Lecturer in
English to the post of Lecturer in Marathi. The respondent no.1 was
sanctioned one extra post in open category for Lecturer in English. The
respondent no.1 had issued an advertisement for the said post of Lecturer
in English in open category. The petitioner had participated in response
to the advertisement issued by the respondent no.1 and was appointed in
open category as a Lecturer in English in the said open category post. He
submits that no candidate having NET/SET qualification was available,
the petitioner was appointed on temporary basis subject to the petitioner
obtaining such qualification. It is submitted that the post of Lecturer in
English was thus already de-reserved by the respondent no.1 admittedly
and thus no such relief can be sought by the petitioner.
29. It is submitted by the learned counsel that sometime in the
year 2012, in view of the workload, post was reduced and only two
posts were continued by the respondent no.1 i.e. one post in the subject
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of English in open category and another in Scheduled Tribe. He submits
that the petitioner did not participate in the advertisement issued on 13 th
May 2006. Ms.Dalvi was appointed on the said open category post who
had complied with the requirement of NET/SET qualification. The said
Ms.Dalvi continues to be on the said post even today.
30. It is submitted by the learned counsel for the Management
that since the reservation in respect of one of the posts of Lecturer in
English was already shifted and was already de-reserved in the year
2002-03 and after de-reserving the said post, the respondent no.1 had
already acted upon the said permission granted by the said University
by issuing an advertisement for open category candidates, the question
of further de-reservation under the Government Resolution dated 2 nd
November 2005 did not arise.
31. In so far as various observations and the findings recorded
by the University and College tribunal in the appeal filed by Smt.
Mehrunissa Saheblal Pathan in the order and judgment dated 2 nd
December 2004 is concerned, it is submitted by the learned counsel that
such observations and findings recorded by the University and College
tribunal in the said order and judgment are in the nature of obiter and are
not binding on the management in view of the fact that the said appeal
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filed by the said Lecturer Smt.Mehrunissa Saheblal Pathan was
admittedly dismissed by the University and College tribunal.
32. In so far as the issue as to whether qualification of NET/SET
was mandatory for the purpose of appointing the petitioner to the post of
Lecturer in English is concerned, it is submitted by the learned counsel
that the University Grants Commission has prescribed such qualification
as mandatory under the Circular dated 19th September 1991 which
condition continued to be in force till 14 th June 2006 and were relaxed
for those candidates who had possessed degree in M.Phil. He submits
that since 11th July 2009, the University Grants Commission once again
made it compulsory the said NET/SET qualification as one of the
eligibility conditions.
33. Learned counsel for the respondent nos.1 and 2 placed
reliance on the judgment delivered by the Division Bench of this Court
in the case of Sudhir s/o Sharadrao Hunge & Anr. Vs.State of
Maharashtra and Ors., reported in 2010 (4) Mh.L.J.572 and in
particular paragraphs 2 and 6 in support of the submission that conditions
imposed by the University Grants Commission on 11 th July 2009
prescribing compulsory NET/SET qualification for recruitment and
appointment of Lecturer in Universities/Colleges/Institutions was not
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applicable with retrospective effect. Learned counsel for the Management
also placed reliance on an unreported judgment delivered on 20 th
October 2010 in the case of Atul Suresh Patil & Ors. Vs. The State
of Maharashtra & Ors. in Writ petition No.357 of 2010 and would
submit that the petitioner did not get benefit of relaxation of NET/SET
criteria. It is submitted by the learned counsel that the eligibility criteria
has to be decided by the University Grants Commission and cannot be
changed by the State Government by issuing a Government Resolution.
34. In so far as the issue of regularization of the petitioner is
concerned, it is submitted by the learned counsel that the University
Grievance Redressal Committee did not consider the fact that the
petitioner did not have requisite qualification of NET/SET on the date of
her appointment. He submits that in any event, the petitioner could claim
right to apply for regularization only after completion of 7 years' service
from the date of her first appointment during which period, the candidate
from Scheduled Tribe category was not available. He submits that in the
year 2002-03, the petitioner was already appointed as Lecturer in open
category post and thus question of regularization of services of the
petitioner on that ground also did not arise. The grievance of the
petitioner for regularization is for the period prior to her appointment
ppn 25 wp-4457.06 wt caw.11013.08 (j).doc
to the post of Lecturer in open category. He submits that post was de-
reserved because additional post was to be cancelled due to reduction
of workload. The averments in the petition did not indicate which post
was converted into open category post.
35. Ms.Talekar, learned counsel for the petitioner in rejoinder
submits that it is not at all pleaded by the respondent nos. 1 and 2 in the
affidavit-in-reply that post of Lecturer in English for which the
petitioner has prayed for de-reservation has already been de-reserved by
the respondent nos.1 and 2. She invited our attention to the averments
made in paragraphs 3, 6 and 7 of the affidavit-in-reply filed by the
respondent no.1 and would submit that on the contrary, the respondent
no.1 has contended that there is no responsibility and duties of the
Management to apply for de-reservation and there is no cause of action
against the Management and in favour of he petitioner.
36. It is submitted by the learned counsel that even after shifting
of one post of Lecturer in English to the post of Lecturer in Marathi,
even till today, there is admittedly one post is meant for Scheduled
Tribe category and another post is meant for open category. She submits
that post which is reserved for Scheduled Tribe category is still available
and deserves to be de-reserved in view of the Government Resolution
ppn 26 wp-4457.06 wt caw.11013.08 (j).doc
dated 5th December 1994 without prejudice to the contention of the
petitioner that the petitioner having already worked for 10 to 12 years
with the respondent no.1 from the date of the alleged termination in view
of the Government Resolution dated 2 nd November 2005, the services of
the petitioner are required to be continued to the same post.
37. It is submitted by the learned counsel that in view of 50%
reservation, the last post which was added subsequently, was to be
abolished. Ms.Dalvi was to be appointed to the post of open category.
Her appointment was admittedly made subject to outcome of this writ
petition. She was thus neither necessary nor proper party to this petition.
He submits that shifting of reservation by the respondent no.1 of one
post of Lecturer in English was itself on wrong premise and in any
event, cannot amount to de-reservation of the said post as prescribed
under the Government Resolution dated 5th December 1994. The
petitioner is seeking her claim on the original post which was reserved
for Scheduled Tribe which is lying vacant even today. She submits that
the respondent nos.1 and 2 thus cannot be allowed to take a stand now
that the post of Lecturer in English which was reserved for Scheduled
Tribe category candidate was already de-reserved by the respondent
nos.1 and 2. She submits that one post was abolished by the respondent
ppn 27 wp-4457.06 wt caw.11013.08 (j).doc
nos.1 and 2 and not de-reserved. Learned counsel for the petitioner
strongly placed reliance on the observation and findings made by the
University and College tribunal in the appeal filed by Smt. Mehrunissa
Saheblal Pathan and would submit that the findings recorded by the
University and College tribunal in respect of the de-reservation of the
post against the respondent nos.1, 2 and 3 have attained finality and are
not in the nature of obiter as sought to be canvassed by the respondent
nos.1 and 2.
38. In so far as the issue as to whether qualification of NET/SET
is required to be obtained was mandatory or not is concerned, it is
submitted by the learned counsel that the petitioner had already passed
M.Phil examination. Though the petitioner had made an averment that
she would apply for NET/SET qualification and would appear for the said
examination, the petitioner did not appear for NET/SET examination.
39. Learned counsel for the petitioner invited our attention to the
notification dated 15th June 2007 annexed at Exhibit A-8 to the petition
issued by the respondent no.3 University certifying that the result of the
petitioner registered for M.Phil (English) during the academic year
1992-93 was declared as Passed In Second Division on 6 th June 2007.
The petitioner did not have M.Phil certificate when she was appointed in
ppn 28 wp-4457.06 wt caw.11013.08 (j).doc
the respondent no.1. She however submits that when the petitioner was
appointed, the M.Phil qualification was also not compulsory. The
petitioner had already obtained 55% marks in M.A.(English).
40. In so far as the submission of the learned counsel for the
respondent nos.1 and 2 that the petitioner cannot seek any relief for
regularization of her services is concerned, it is submitted by the learned
counsel that the amendment was sought by the petitioner in the writ
petition seeking additional relief and raising additional grounds which
amendments were allowed by this Court by an order dated 25th September
2008 in Civil Application No.806 of 2006. The said order passed by this
Court allowing the amendment was not challenged by the respondent
nos.1 and 2. She submits that the petitioner is thus entitled to seek all
the reliefs prayed in the petition including the amendment which is
granted by this Court. The original averment made in the petition as
well as the statement made before this Court thus cannot be interpreted
as sought to be interpreted by the respondent nos.1 and 2. She submits
that if this Court grants prayer for regularization of the services of the
petitioner, the petitioner would withdraw the appeal filed by her before
the University and College tribunal seeking regularization of her services
except the prayer for back wages and consequential benefits.
ppn 29 wp-4457.06 wt caw.11013.08 (j).doc
41. In so far as the submission of the learned counsel for the
respondent no.1 that the Government Resolution dated 2nd November
2005 would not apply to the fact of this case is concerned, it is submitted
by the learned counsel for the petitioner that the petitioner had already
prayed for writ of mandamus against the respondent nos.1 and 2 to apply
for de-reservation of post of Lecturer in English which was reserved for
Scheduled Tribes candidates. The said Government Resolution dated 2nd
November 2005 was issued based on the judgment of this Court. She
submits that this Court in one of the judgments referred to aforesaid had
directed the Management and University to regularize the services of
the petitioner therein though there was no Government Resolution issued
by that time which the petitioner had already completed more than 10 to
12 years. The said Government Resolution was issued based on the said
judgment of this Court. She submits that the said resolution would
squarely apply to the facts of this case. She submits that subsequent
circular issued by the University Grants Commission relied upon by the
respondent nos.1 and 2 would not apply to the appointment already made
such that of the petitioner and thus the reliance placed by the respondent
nos.1 and 2 on this circular issued post the date of the appointment of the
petitioner is misplaced. Learned counsel for the petitioner distinguishes
the judgment cited by the learned counsel for the respondent nos.1 and 2.
ppn 30 wp-4457.06 wt caw.11013.08 (j).doc
REASONS AND CONCLUSIONS :-
42. A perusal of the record indicates that the petitioner had
possessed degree of M.A. (English) on the date when the petitioner had
applied for the post of Lecturer in English pursuant to the advertisement
published in daily "Lokmat." A perusal of the petition indicates that it
was averred by the petitioner that she had passed M.Phil Examination
prior to the date of filing of writ petition but had to submit thesis for the
purpose of obtaining M.Phil degree. The petitioner had also applied for
National Eligibility Test Examination and had proposed to appear for the
said examination which was scheduled to be held on 25th June 2006.
43. During the period between 1st July 1994 and July 2003, the
respondents had issued advertisements from time to time for the post of
Lecturer in English for the post reserved for Scheduled Tribe category.
The petitioner was appointed from time to time to the said post in view
of the fact that no candidate from Scheduled Tribe category was
available. The post of Lecturer in English was once again advertised
for the 7th times in daily "Sakal" in its issue dated 26th March 2002.
44. In the meanwhile, the respondent no.1 college applied to the
university for shifting reservation of Scheduled Tribes from the post of
Lecturer in English to that of Lecturer in Marathi on the ground that one
ppn 31 wp-4457.06 wt caw.11013.08 (j).doc
post of Lecturer in English had fallen vacant due to retirement of
Dr.Lata Mohrir. The said post of Lecturer in English was thus once again
advertised in daily "Deogiri Tarun Bharat" in its issue dated 2 nd
November 2003. The name of the petitioner was recommended by Local
Selection Committee subject to the decision of the University and
College tribunal in the proceedings filed by the another Lecturer Smt.
Mehrunissa Saheblal Pathan. The said appeal filed by the said Lecturer
came to be dismissed by the University and College tribunal, Aurangabad
on 2nd December 2004.
45. Various observations were made by the University and
College tribunal, Aurangabad in the said judgment. It was held that de-
reservation of the post has to be made only as per the direction contained
in the Government Resolution dated 5th December 1994. It was held by
the said tribunal that the tribunal need not go into the question whether
the shifting of reservation is legal and proper or not. There was no change
with respect to direction given in the Government Resolution dated 5 th
December 1994 regarding de-reservation by the Government Resolutions
dated 4th April 1995 and 18th October 1997. The tribunal held that if any
de-reservation is to be effected, then it must be effected as per the
directions given in Government Resolution dated 5th December 1994.
ppn 32 wp-4457.06 wt caw.11013.08 (j).doc
46. It is held that in that case, one post of Lecturer in English
was reserved for Scheduled Tribe category, then de-reservation can be
made only as per the directions contained in the Government Resolution
dated 5th December 1994. The tribunal observed that there was clear
misunderstanding on the part of the Management, of the Government
Resolutions dated 5th December 1994 and 24th April 1995. The University
has no such power to de-reserve such post once the same was reserved
for a particular caste or tribe. A proposal has to be submitted to the
General Administration Department and then as per the directions
contained in the said Government Resolution, the de-reservation can be
permitted after the approval from the concerned Minister and the
Chief Minister. The said tribunal in that matter held that the services of
the appellant i.e. Smt. Mehrunissa Saheblal Pathan stood terminated
because her appointment was for a fixed period and on the expiry of that
period, her services stood terminated and not because of change in
reservation. It is not in dispute that the said findings rendered by the
University and College tribunal against the respondent no.1 have not
been challenged by the respondent no.1.
47. A perusal of the record further indicates that the
representation of the petitioner to the University Grievance Redressal
ppn 33 wp-4457.06 wt caw.11013.08 (j).doc
Committee was accepted and a recommendation was made for
absorption/regularization of the services of the petitioner by passing a
Resolution on 22nd November 2002. The management Council however
in its meeting held on 29th January 2003 rejected the said
recommendation made by the University Grievance Redressal Committee
on the ground that the post of Lecturer in English was reserved for
Scheduled Tribe. It is not in dispute that during the pendency of this
writ petition, though initially this Court had granted ad-interim injunction
restraining the respondents from making any appointment against the
post of Lecturer in English pursuant to the advertisement published on
13th May 2006, the said ad-interim order was vacated on 6 th November
2006. It was however made clear that the appointment to be made by
the respondent-management to the subject post of Lecturer (English)
would be subject to the outcome of this writ petition.
48. The respondent no.1 thereafter appointed another Lecturer
to the said post of Lecturer in English in open category. It is also not in
dispute that the petitioner has filed an appeal in the month of June, 2017
before the University and College tribunal, Aurangabad inter alia praying
for an order of reinstatement of the the petitioner on the post of the
Assistant Professor of English in Scheduled Tribe category post being
ppn 34 wp-4457.06 wt caw.11013.08 (j).doc
de-reserved as open category post and with the entire back wages with
interest. The petitioner had applied for condonation of delay in filing
the said appeal before the University and College tribunal. The said
application for condonation of delay is still pending.
49. The whole arguments of the petitioner in this petition is
mainly based on the condition laid down in the Government Resolution s
dated 5th December 1994 and 2nd November 2005.
50. It is not the case of the respondents in their affidavit-in-reply
that the said post of Lecturer in English reserved for Scheduled Tribe
category was de-reserved and was made available for the post of
Lecturer in English from open category in compliance with the
Government Resolution dated 5th December 1994. On the contrary, a
specific case of the respondents was that the respondents had applied
for permission to the University and College Tribunal to reduce one post
of Lecturer in English due to reduction in workload and to convert the
said post as post of Lecturer in Marathi. The said permission was
granted by the University and College Tribuanl. The management had
thereafter issued a fresh advertisement for the post of Lecturer in
English. The petitioner had applied for the said post and was temporarily
appointed to the post of Lecturer in English in the said open category
ppn 35 wp-4457.06 wt caw.11013.08 (j).doc
post in view of the fact that no candidate having NET/SET qualification
was available.
51. The question that arises for consideration of this Court is
whether one of the posts of Lecturer in English which was reserved for
Scheduled Tribe category, if no candidate from Scheduled Tribe category
was available for a period of six years and even in the seventh year , no
other candidate from reserved category on the basis of inter changibility
was available in the seventh year, the said reserved post for Scheduled
Tribe category candidate was liable to be de-reserved and ought to have
been made available exclusively for the candidates from open category.
Admittedly the respondent no.1 had not applied for de-reservation of
the said post of Lecturer in English which was reserved for Scheduled
Tribe category even though no candidates from that category were
available for seven years. The petitioner was admittedly appointed to
the said post from time to time though the petitioner did not belong to the
Scheduled Tribe category however, on temporary basis since no
Scheduled Tribe candidate was available.
52. Mr.Shah, learned counsel for the respondent nos.1 and 2
could not justify as to why the respondent no.1 did not de-reserve the
said post of Lecturer in English which was reserved for Scheduled Tribe
ppn 36 wp-4457.06 wt caw.11013.08 (j).doc
category candidates though for consecutive period of seven years, no
such reserved category candidate was available.
53. In so far as the Government Resolution dated 5th December
1994 is concerned, the petitioner has not produced any material on
record to demonstrate that the petitioner had completed twelve years or
more on the said post of Lecturer in English. In our view, the petitioner
thus cannot avail of any benefit under the said Government Resolution
dated 2nd November 2005.
54. The petitioner in her rejoinder averred that the norms
prescribed by the University Grants Commission (UGC) which are
interpreted in Ordinance 168B of the Ordinances framed by the
University although requires that a candidate shall possess NET/SET
in the concerned subject, the requirement has been relaxed, in case of
candidates who possess M.Phil degree. She placed reliance on the
Circular dated 4/5th July 2006 in support of this submission. The
respondent no.3-University extended the period to complete M.Phil till
30th June 2007 in case of old students who were already registered vide
Circular dated 3rd August 2006. It is contended by the petitioner that the
Government of Maharashtra issued a Resolution relaxing the requirement
of passing NET/SET as a condition precedent to continue in service in
ppn 37 wp-4457.06 wt caw.11013.08 (j).doc
case of those Lecturers who were appointed prior to October 2000. It is
the case of the petitioner that she was appointed since 1 st October 1996
and she was protected under the Government Resolution dated 4 th April
2000.
55. During the pendency of this petition, the petitioner has
amended this writ petition and has annexed a notification dated 15 th June
2007 at Exhibit 'A-8' to the petition issued by the Controller of
Examinations of the respondent no.3-university to the effect that the
result of the petitioner who had registered her name for M.Phil (English)
during the academic year 1992-93 was declared as 'Passed in Second
Division' on 6th June 2007.
56. During the course of the arguments, learned counsel for the
petitioner admitted that the petitioner though had made an averment
that she would appear for NET/SET examination, she did not appear for
the said examination. She also made a statement that she did not have
M.Phil certificate when she was appointed in the respondent no.1-college.
It is however the case of the petitioner that when she was appointed,
M.Phil examination was also not compulsory. The petitioner had already
obtained 50% marks in M.A. (English).
ppn 38 wp-4457.06 wt caw.11013.08 (j).doc
57. Division Bench of this Court in the case of Nitin Anand
Anbhule Vs. State of Maharashtra & Ors. (supra) has construed the
Government Resolution dated 5th December 1994, 19th January 1995
and 2nd November 2005 and has held that since the petitioner in that
matter had continued in service for more than six years as Lecturer and
the condition of Government Resolution dated 5th December 1999 were
fulfilled, the petitioner would be entitled to benefit of the Government
Resolution dated 2nd November 2005 and was entitled to the approval for
the said appointment, subject to conditions laid down in the resolution.
This Court also considered the fact that as per the Government
Resolution No.1306/2000 after 4th April 2002, no lecturer either in the
University or in the College be appointed without the necessary
eligibility. However, there were 6000 lecturers who had not passed either
NET or SET examination and they were in service for 7-8 years and,
therefore, for protecting their interest the Government had taken the
decision.
58. It is held that the Government Resolution laid down that on
certain conditions, the lecturers appointed between 19th September 1991
and 11th December 1999 will not be terminated for non-passing of NET or
SET examination. The conditions were that the lecturers should pass
ppn 39 wp-4457.06 wt caw.11013.08 (j).doc
either of the examination till December 2003. It is further laid down that
those who would not pass either of the two examinations would not be
entitled to any monetary benefits such as promotion, higher pay scale,
selection grade and until retirement they will continue in the pay scale of
Rs.8000-13500. They would be entitled to higher scale, selection grade
from the date on which they would pass the examination. These
concessions would not be available to those lecturers who come in
service after 11th December 1999. It is not in dispute that the petitioner
was appointed for the first time pursuant to the advertisement dated 1 st
July 1994 by an appointment letter dated 5th October 1994.
59. Division Bench of this Court in Maharashtra Federation
of University & College Teachers Organizations (supra) has dealt
with all the relevant Government Resolutions issued from time to time
prescribing terms and conditions for appointments to various posts
including terms and conditions for passing NET/SET examination etc.
Division Bench has considered the chequered history of the Resolutions
passed by the Government from time to time since 1983 till 27 th June
2013. Division Bench has also considered the cases of teachers who
were duly appointed without passing NET/SET examination and whether
their appointments were required to be regularised or not. This Court
ppn 40 wp-4457.06 wt caw.11013.08 (j).doc
held that the regularisation of service from the date of initial appointment
also cannot be disturbed as they have admittedly been working during the
situation where NET/SET candidates were not available. The State is
required to strike the balance in the interest of all the concerned, being the
paying authority of salary and all other related benefits to such
lecturers/teachers. This Court also considered the fact that there was no
issue that non-NET/SET teachers, inspite of no requisite qualification of
NET/SET have been getting pay Commission's scale, HRA, Leave Travel
Allowance, DA, TA and all other related benefits, including increments
and pension and gratuity.
60. In the concluding paragraph of the said judgment, it is held
by the Division Bench that the teachers/professors/lecturers/ candidates
who have not acquired NET/SET/TEST qualification and who were
appointed during 24th October 1992 to 3rd April 2000 (except 19th
September 1991 to 23rd October 1992) were not entitled for CAS (Career
Advancement Scheme) and other related benefits except the benefits
including the pay scale and increments and other related benefits, as
announced by the State, but on conditions so reproduced, it is held that
after acquiring NET/SET qualification, the teachers shall be entitled for
the CAS and other related benefits in accordance with law from the date
ppn 41 wp-4457.06 wt caw.11013.08 (j).doc
of acquisition of qualification of NET/SET as announced. This Court
rejected the challenge to the validity of the State Government Resolution
dated 27th June 2013 and upheld the action of the State of Maharashtra
and directed the State Government/Universities/Colleges to take steps
accordingly.
61. It is not in dispute that the first appointment of the
petitioner was made during the period between 24th October 1992 to 3rd
April 2000 and more specifically by an order dated 5 th October 1994.
Though the petitioner had not obtained the certificate of M.Phil degree
or had not acquired NET/SET qualification on the date of making an
application for the first time, the appointment of the petitioner cannot
be rejected on the ground of the petitioner not having acquired
NET/SET qualification or not having M.Phil certificate on the date of
making of an application for the post of Lecturer in English. The
judgment of this Court in the case of Maharashtra Federation of
University & College Teachers Organizations (supra) delivered by this
Court on 23rd December 2015 would apply to the facts of this case. We
are respectfully bound by the said judgment. In our view, the petitioner
would be entitled to avail of the benefits of various Government
Resolutions which are specifically dealt with in the said judgment and
ppn 42 wp-4457.06 wt caw.11013.08 (j).doc
her appointment cannot be rejected on the ground that she did not have
passed NET/SET examination or did not have certificate of M.Phil
degree.
62. A perusal of record clearly indicates that even after expiry of
seven years, though the respondent no.1 did not get any candidate for the
post of Lecturer in English from Scheduled Tribe category, the
respondent no.1 did not de-reserve the said post reserved for Scheduled
Tribe and instead of de-reserving the said post and to make the said post
available for the candidates from open category, the respondent no.1
applied for shifting of reservation from one post to another. The
principles of law laid down by the Division Bench of this Court in the
case of Nitin Anand Anbhule Vs. State of Maharashtra & Ors. (supra)
would squarely apply to the facts of this case. We are respectfully bound
by the said judgment. The respondent no.1 could not dispute before this
Court that the respondent no.1 had issued advertisement for the said post
of Lecturer in English reserved for Scheduled Tribe category for seven
years and did not get any candidate from Scheduled Tribe category and
that the petitioner was appointed to the said post continuously. The
respondent no.1 also did not dispute before this Court that the petitioner
was given workload of full time lecturer in English.
ppn 43 wp-4457.06 wt caw.11013.08 (j).doc
63. In so far as the submission of the learned counsel for
respondents that the observations made by the University and College
Tribunal in the appeal filed by Smt. Mehrunissa Saheblal Pathan were
obiter and not the ratio is concerned, it is not in dispute that the
respondents were parties to the said proceedings and did not challenge
the findings rendered by the University and College Tribunal in the said
judgment and more particularly about the applicability of the Government
Resolution dated 5th December 1994. In our view, the permission sought
by the respondent no.1 from the university to shift the reservation of
Scheduled Tribe from the post of Lecturer in English to that of Lecturer
in Marathi was not in compliance with the condition prescribed in the
Government Resolution dated 5th December 1994. The said permission
granted by the University allowing the respondent nos.1 and 2 to shift
the reservation of Scheduled Tribe from the post of Lecturer in English
to that of Lecturer in Marathi could not have been considered as de-
reserving post of Lecturer in English in compliance with the terms and
conditions of the Government Resolution dated 5th December 1994. We
are thus no inclined to accept the submission of the learned counsel for
the respondent nos.1 and 2 that the said post of Lecturer in English was
already de-reserved by the respondent nos.1 and 2.
ppn 44 wp-4457.06 wt caw.11013.08 (j).doc
64. In our view, the petitioner had applied for the said post of
Lecturer in English after such permission was obtained by the respondent
nos.1 and 2 from the university by shifting of reservation. The petitioner
was initially appointed to the said post again on temporary basis. The
said application made by the petitioner was in continuation of the earlier
applications made from time to time for the said post which was
accepted by the respondent nos.1 and 2 and an appointment of the
petitioner was made to the said post of Lecturer in English though the
petitioner was belonged to the open category. In our view, the said post
of Lecturer in English reserved for Scheduled Tribe category was
required to be de-reserved by the respondent nos.1 and 2 in compliance
with the Government Resolution dated 5th December 1994 and was to be
filled in by appointing the petitioner to the said post in open category.
It is not in dispute that one post of Lecturer in English reserved
Scheduled Tribe category candidate is still in existence in the respondent
no.1-college and is not de-reserved till date in compliance with the
Government Resolution dated 5th December 1994.
65. In so far as the submission of the learned counsel for the
respondent nos.1 and 2 that the petitioner had restricted to press relief
in the petition to the limited extent of de-reservation of the post and she
ppn 45 wp-4457.06 wt caw.11013.08 (j).doc
did not seek to challenge the alleged termination of the services of the
petitioner or that this Court while admitting the petition on 6 th November
2006 had recorded the statement of the petitioner that the limited
grievance in the petition was to seek direction to the respondent nos.1
and 2 to take steps for de-reservation of the said post and thus the
petitioner cannot be allowed to now press relief in respect of
regularization of her services is concerned, it is not in dispute that the
petitioner had applied for amendment to the writ petition in the year
2009 for seeking amendment to the petition including the additional
reliefs.
66. After hearing both the parties, this Court had permitted the
petitioner to amend the petition and to seek additional prayer of seeking
regularization of her services as recommended by the respondent no.3-
university. The said order allowing the amendment to the petition in
favour of the petitioner passed by this Court has not impugned by the
respondent nos.1 and 2. The petitioner though her learned counsel made
a statement before this Court that if this Court allows the said prayer
clause (E) to the petition as inserted in the amendment, the petitioner
would withdraw her appeal pending before the University and College
Tribunal in so far as the prayer for reinstatement is concerned. In our
ppn 46 wp-4457.06 wt caw.11013.08 (j).doc
view, the respondent nos.1 and 2 thus cannot be allowed to oppose the
reliefs claimed by carrying out amendment to the writ petition and to
seek additional reliefs including the relief of regularization of her services
on the ground that amendment was wrongly allowed.
67. It is not in dispute that the university had recommended the
case of the petitioner for absorbing the petitioner to the said post,
however, the said recommendation was rejected by the management
council. In our view, the rejection of recommendation made by the
university by the management council is ex facie illegal. In our view,
various Resolutions passed by the Government and adopted by the
University Grants Commission and the petitioner having fulfilled the
conditions prescribed in those Resolutions, the management council
was bound to accept the recommendation made by the university and
ought to have absorbed the petitioner to the said post by de-reserving the
said post of Lecturer in English reserved for Scheduled Tribe category in
compliance with the Government Resolution dated 5th December 1994.
68. In so far as the judgment of the Division Bench of this Court
in the case of Sudhir s/o Sharadrao Hunge & Anr. Vs.State of
Maharashtra and Ors. (supra) relied upon by the learned counsel for
the respondent nos.1 and 2 is concerned, Division Bench of this Court
ppn 47 wp-4457.06 wt caw.11013.08 (j).doc
has considered the issue as to whether introduction of NET/SET as
eligibility condition for recruitment and appointment of Lecturers in
Universities/Colleges/ Institutions as per Gazette Notification dated 11th
July 2009 prescribed by University Grants Commission will affect the
selections and appointments made in accordance with the approved
advertisements/notifications published before 11th July 2009 when the
eligibility condition was not compulsory NET/SET ?
69. A perusal of the said judgment also indicates that even in
the said judgment, this Court observed that it was not in dispute that
before 11th July 2009, the date on which the UGC had prescribed
compulsory NET/SET qualification for the recruitment and appointment
of the Lecturers in Universities/Colleges/Institutions, there was
exemption to the candidates possessing M.Phil degree by virtue of
UGC (Minimum Qualifications required for the appointment and
Career Advancement of teachers in Universities and Institutions
affiliated to it) (2nd Amendment), Regulation 2006 dated 14th June 2006.
It is held that even if the candidate did not possess NET/SET
qualification, if he possessed M.Phil. Degree, he was eligible to apply
and for getting selected for teaching under graduate level students. It is
held that the candidates who possess the said M.Phil. Qualification
ppn 48 wp-4457.06 wt caw.11013.08 (j).doc
though they did not possess NET/SET qualification, was eligible for
being selected and appointed prior to 11 th July 2009. The judgment of
the Division Bench, on the other hand, in case of Maharashtra
Federation of University & College Teachers Organizations (supra)
which judgment delivered by the Division Bench of this Court in the case
of Sudhir s/o Sharadrao Hunge & Anr. Vs.State of Maharashtra and
Ors. (supra) thus would not assist the case of the respondent nos.1 and 2
and is clearly distinguishable in the facts of this case.
70. It is not in dispute that at least on 6 th June 2007, the
petitioner has already been declared passed in second division in
M.Phil examination and has been issued a certificate to that effect.
71. In so far as the other judgments relied upon by the learned
counsel for the petitioner are concerned, this Court need not multiply
the authorities by dealing with those judgments in view of the judgment
of this Court in the cases of Nitin Anand Anbhule Vs. State of
Maharashtra & Ors. (supra) and Maharashtra Federation of
University & College Teachers Organizations (supra) being applicable
to the facts of this case directly and are binding on this Court.
72. In our view, the petitiosner has made out a case for an order
and direction against the respondent nos.1 & 2 to apply for de-reservation
ppn 49 wp-4457.06 wt caw.11013.08 (j).doc
of post of Lecturer in English for Scheduled Tribe and for quashing the
decision of the management council, Dr.Babasaheb Ambedkar
Marathwada University, Aurangabad rejecting the recommendation of
the University Grievance Redressal Committee in respect of
regularization of services of the petitioner as Lecturer in English.
73. In so far as the submission of the learned counsel for the
respondent nos.1 and 2 that the petitioner has not impleaded the Lecturer
who has already been appointed to the post of Lecturer in English though
the respondent nos.1 and 2 had disclosed the name of the said candidate
in the affidavit-in-reply is concerned, it is not in dispute that this Court
while admitting this writ petition had made it clear that the appointment
of any candidates as would be made by the respondent nos.1 and 2
during the pendency of this writ petition would be subject to outcome of
this petition. In our view, there is thus no merit in this submission of the
learned counsel for the respondent nos.1 and 2.
74. We therefore pass the following order :-
(i) Writ petition is made absolute in terms of prayer clauses (A) and
(E). Rule is made absolute in aforesaid terms. In view of disposal of
the writ petition, civil application does not survive and is disposed
of. No order as to costs.
ppn 50 wp-4457.06 wt caw.11013.08 (j).doc
(ii) The respondent nos.1 and 2 are directed to appoint the petitioner to
the said post of Lecturer in English in open category with
retrospective effect.
(iii) The petitioner would be at liberty to press relief of back wages and
continuity of service in pending appeal before the University and
College Tribunal. The University and College Tribunal to decide
the said prayer for back wages and continuity of service after
considering the observation made and conclusion drawn in this
order.
(iv) The respondent nos.1 and 2 shall comply with this order within four
weeks from the date of this order.
(v) Parties to act on the authenticated copy of this order.
(SUNIL K. KOTWAL, J.) (R.D. DHANUKA, J.)
