Bombay High Court
Sarvodaya Shikshan Mandal, ... vs University & College Tribunal, ... on 7 June, 2017
Bench: I.K. Jain
WP 4426.08.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.4426 OF 2008
1] Sarvodaya Shikshan Mandal, Chandrapur,
A Public Trust and a Society registered
under the Societies Registration Act, 1860,
having its office at Sardar Patel Mahavid-
yalaya, Chandrapur-442 402, through
its Secretary.
2] The Principal, S.P. College of Law,
Tadoba Road, Chandrapur-442 401,
Tahsil and District-Chandrapur (M.S.).. PETITIONERS
.. VERSUS ..
1] University & College Tribunal, Nagpur.
2] Baban s/o Pandurang Danav,
Aged about 38 years,
R/o. Mahakali Ward, Chandrapur,
Tahsil and District-Chandrapur (M.S.).. RESPONDENTS
..........
Shri M.P. Khajanchi, Advocate for petitioners,
Shri A.M. Balpande, AGP for respondent no.1.
..........
CORAM : KUM. INDIRA JAIN, J.
DATED : JUNE 07, 2017.
ORAL JUDGMENT
This petition takes an exception to the judgment
and order dated 20.12.2007 passed by the learned Presiding
Officer of the University and College Tribunal, Nagpur in
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Appeal No.N-2/2005.
2] The facts giving rise to the petition may be stated
in brief as under :
Respondent no.2 was appointed on temporary
basis as a part time peon in petitioner no.2 college run by
petitioner no.1-management. The appointment order was
issued on 15.4.1985. In 1995, due to separation of law
faculty an independent college by name Shantaram
Potdukhe College of Law was established. Petitioner no.2
proposed the names of employees including the name of
respondent no.2 to the Joint Director of Higher Education
seeking approval to their names as at the relevant time
sanctioned strength of peons had increased. The name of
respondent no.2 was not approved by the Joint Director and
directions were given to absorb the surplus non-teaching
staff from another college to the newly established college.
As name of respondent no.2 was not approved, vacancy had
ceased to be a clear vacancy and consequently the services
of respondent no.2 automatically came to an end.
3] Respondent no.2 filed appeal before the University
and College Tribunal, Nagpur alleging therein that his
services were terminated vide letter dated 28.2.1997 and
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sought reinstatement with back wages. It was the case of
respondent no.2 before the Tribunal that he was duly
qualified to be appointed as Class-IV employee and as his
work was satisfactory, his services were continued from time
to time on yearly basis by issuing fresh appointment orders.
He also submitted that instead of issuing him appointment
order as a full time employee and increasing his salary, his
services were terminated and he made representations to
the college authority as he served for more than 12 years in
the college. The main grievance of respondent no.2 before
the Tribunal was that termination dated 28.2.1997 was bad
in law and he is entitled to reinstatement with all
consequential benefits.
4] Considering the grievances made by respondent
no.2 and the submissions advanced on behalf of the college
authority and the management, tribunal came to the
conclusion that respondent no.2 was qualified for the post of
Peon. He was not a temporary employee because his
appointment was not for a fixed period which was to end by
efflux of time. Learned Presiding Officer held that
respondent no.2 was entitled to reinstatement and back
wages. It is this order which is the subject matter of the
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present writ petition.
5] Heard at length Shri M.P. Khajanchi, learned
counsel for petitioners and Shri A.M. Balpande, learned
A.G.P. for respondent no.1.
6] The learned counsel for petitioners submits that
appointment of respondent no.2 was on part time basis. He
was in a temporary employment and not appointed in clear
vacancy. According to the learned counsel, respondent no.2
was never appointed as a full time peon. It is submitted that
Joint Director of Higher Education had directed to absorb the
surplus employees of another institution and petitioners
have followed the directions issued to them. It is submitted
that the name of respondent no.2 was never approved and
since vacancy had ceased, his services were automatically
terminated. The submission is that no statutory procedure
was followed for the appointment of respondent no.2 and in
view of automatic cessation of services, order of
reinstatement passed by the Tribunal is unsustainable in law.
7] In support of submissions, learned counsel placed
reliance on :
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(i) Nehru Jankalyan Bahu-Uddeshiya
Shikshan Sanstha and another .vs.
Mohan Suryabhan Wanjari and
another, [2003 (1) Mh.L.J. 425]
(ii) Priyadarshini Education Trust and
others .vs. Ratis (Rafia) Bano d/o
Abdul Rasheed and others, [2007 (6)
Mh.L.J. 667]
(iii) Krishna Dnyandeo Lad .vs. Chairman,
Rahimatpur Panchkrushi Shikshan
Mandal and others, [2008 (4) Mh.L.J.
309]
(iv) National Education and Social
Trust .vs. State of Maharashtra and
others, [2008 (4) Mh.L.J. 778]
(v) Rayat Shikshan Sanstha and another
.vs. Yeshwant Dattatraya Shinde,
[2009 (5) ALL MR 151]
(vi) Gautam Shikshan Sanstha and
another .vs. Presiding Officer and
others, [2010 (1) Bom. C.R. 304]
(vii)Pragati Mahila Samaj and another
.vs. Arun s/o Laxman Zurmure [2017
(2) Mh.L.J. 66]
8] Per contra, Shri A.M. Balpande, learned AGP
appearing on behalf of respondent no.1 supports the order
and submits that respondent no.2 was in continuous service
and, therefore, his reinstatement was properly ordered by
the tribunal.
9] Admittedly, there is no material to indicate that
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appointment of respondent no.2 was made after following
the procedure laid down in the Maharashtra Employees of
Private Schools (Conditions of Service) Regulation Act, 1977
and the Rules. The tribunal has come to a conclusion that
temporary employees can be appointed in a clear vacancy
and appointment of respondent no.2 was made on a clear
vacancy. It is not in dispute that no advertisement was
issued nor interviews were held. As such, it cannot be said
that appointment was made on a clear vacancy.
10] Needless to state that burden of establishing that
appointment was made on a clear and permanent post by
following the procedure laid down under the Acts and the
Rules squarely lies on respondent no.2 and not on the
management. In this background, this court finds that
tribunal committed an error of law which is apparent on the
face of record. The services of respondent no.2 were
automatically terminated in view of cessation of vacancy
and the direction issued by the Joint Director of Education to
absorb the surplus employees of the other institution.
11] In the present case, though respondent no.2
asserts that his appointment was continued on yearly basis
and the fact is not in serious dispute, it is an admitted
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position that approval was not granted to the name of
respondent no.2 by the competent authorities.
12] In the above premise and keeping in view the gist
of various cases relied upon by petitioners and well settled
position of law, respondent no.2 was not entitled to
reinstatement, as he was not duly selected, not appointed in
clear and permanent vacancy, his appointment was not for a
limited period, he was never on probation and no approval
was granted to his name by the Joint Director.
13] In this view of the matter, the impugned judgment
and order passed by the tribunal is unsustainable in law and
deserves to be quashed and set aside. Hence, the following
order :
ORDER
(i) Writ Petition No.4426 of 2008 is allowed.
(ii) Rule is made absolute in terms of prayer clause (a).
(iii) No order to costs.
(Kum. Indira Jain, J.)
Gulande, PA
