Bombay High Court
Hind Seva Mandal Ahmednagar And ... vs Gangadhar Maruti Chindhe And Ors on 11 May, 2017
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4996 OF 1999
1 Hind Seva Mandal,
Borkar Nagar,
At and Post Ahmednagar.
Through its Secretary.
2 Principal, Premraj Sarda College,
Address as above.
...PETITIONERS
-VERSUS-
1 Gangadhar Maruti Chindhe,
Age : 30 years, Occupation : Nil,
R/o C/o P.P.Sathe, Plot No.8,
Renavika Nagar, Behind Savedi Naka,
Savedi, Ahmednagar.
2 Registrar, Pune University,
Pune.
3 State of Maharashtra.
...RESPONDENTS
...
Advocate for Petitioners : Shri V.J.Dixit, Senior Counsel with Shri S.V.Dixit.
Advocate for Respondent 1 : Shri R.L.Kute.
AGP for Respondent 3 : Shri S.S.Dande.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 11th May, 2017
Oral Judgment :
1 The Petitioners are aggrieved by the judgment and order
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dated 20.08.1999 delivered by the University and College Tribunal by
which Appeal No.16/1998 filed by Respondent No.1/ original Appellant
has been allowed and by setting aside the oral termination of the
Appellant, he was granted reinstatement on the post of Part Time Lecturer
and with arrears of salary till the date of reinstatement.
2 This Court, by order dated 25.10.1999, admitted the petition
and granted interim relief in terms of prayer clause (B), which reads as
under:-
"(B) That, pending hearing and final disposal of the
present Writ Petition, the execution, implementation
and operation of the judgment and order dated
20.08.1999 passed by Presiding Officer, Pune-Shivaji
University and College Tribunal, Pune in Appeal
No.16/1998 be stayed."
3 It was, however, mentioned in the order dated 25.10.1999
that in case the work is available to be offered to the Appellant, he should
be given preference.
4 During the pendency of this petition, the Appellant filed
Contempt Petition No.246/2004 alleging that two persons, namely, Mr.Lad
and Mrs.Pandit have been engaged in place of the Appellant. By detailed
judgment dated 05.10.2005, this Court dismissed the Contempt Petition
by concluding that minuscule workload was available, but not enough to
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engage a Part Time Lecturer and hence, Mr.Khan and Mr.Patni, who were
lecturers in Electronics, were called upon to shoulder the responsibilities
of few additional lectures in Physics subject. This Court concluded that
interim order passed by this Court has not been flouted by the Petitioners.
5 Consequent to the above, Respondent No.1/ Appellant is said
to be out of employment for almost 20 years.
6 I have heard the learned counsel for the Petitioners and the
Respondents and have gone through the record available.
7 There is no dispute that the Appellant had acquired
qualifications for being appointed as a Lecturer, though the Petitioners
have put forth the case of lack of NET/SET qualification which would
disentitle the Appellant to seek regular employment. This issue has
already been dealt with by the learned Single Judge of this Court in the
matter of Dr.Ambedkar College of Commerce and Economics vs. Sharmila
Bose and others, 1998(2) Mh.L.J. 99 and by the learned Division Bench in
the matter of Sudhir Sharadrao Hunge vs. State of Maharashtra, 2010 (5)
All M.R. 79, by concluding that lack of NET/SET qualification would
disentitle an employee to regular employment and increment. However, it
ought not to result in his termination.
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8 In the instant case, by appointment order dated 27.07.1995,
the Appellant was appointed as Part Time Lecturer for one academic year
1995-1996. By communication dated 19.01.1996, the Petitioners informed
the Appellant that he could continue till the end of academic year 1995-
1996 as a Part Time Lecturer in Physics.
9 By appointment order dated 12.06.1996, the Petitioners
continued the service of the Appellant for the academic year 1996-1997
and mentioned therein that unless he passes NET/ SET examination, he
would not be entitled for increments. Accordingly, the Appellant was
continued as a Part Time Lecturer in Physics for the academic year 1996-
1997.
10 By order dated 30.06.1997, the Petitioners appointed the
Appellant w.e.f. 01.07.1997 on leave vacancy till 30.11.1997. Thereafter,
he was issued with another order dated 29.11.1997 and was continued on
the same post till 04.02.1998. By yet another communication, he was
continued as such from 04.02.1998 till 24.02.1998.
11 The Appellant approached the University and College
Tribunal alleging that he was orally disallowed to sign the attendance
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record w.e.f. 01.03.1998 and that, therefore, amounted to oral termination
or otherwise termination.
12 The Petitioners contested the appeal by putting forth three
grounds. Firstly, that the Appellant was appointed on part time basis
initially for the period 1995 till 1996. Secondly, he was continued in the
academic year 1996-1997 on the same conditions and by mentioning that
he must acquire qualification of NET/SET. Thirdly, he was then continued
from June, 1997 for four months with further orders as noted above on
the basis that a part time lecturer Mr.Keskar was absent due to health
reasons and the Appellant was engaged during his leave vacancy.
13 The Tribunal, while considering the above noted facts,
concluded that the termination of the Appellant w.e.f. 01.03.1998 was
illegal and invalid. The reason for drawing such conclusion was on the
basis that absence due to illness of Mr.Keskar was not proved and the
Appellant had worked continuously for about two years and 10 months
and hence, the oral termination was bad in law.
14 There is no dispute that the Appellant was not disengaged by
issuance of any termination order. However, it cannot be ignored that the
Appellant accepted the appointment orders dated 30.06.1997, 29.11.1997
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and 04.02.1998 by which he was lastly engaged on leave vacancy. It is
quite conspicuous that the Petitioners did not find it necessary to mention
in the said appointment orders that a part time lecturer Mr.Keskar is
unwell and therefore, the Appellant is being engaged till he resumes
duties.
15 At this juncture, the learned counsel for the Petitioners
tenders a copy of the appointment order dated 29.11.1997. On perusal of
the said copy now shown to the Court, I find that the words "in the leave
vacancy of professor M.P.Keskar" have been written into brackets in front of
the date 04.02.1998 and the signature of the Principal appears in front of
these words. The Appellant is unable to state as to whether, these words
can be found in the copy of the appointment order that was issued to him.
The said words are subsequently written in the said order.
16 The issue before the Tribunal was twofold. Firstly, whether,
engagement of the Appellant for the academic years 1995-1996 and 1996-
1997 could create any vested right to continue in employment. Secondly,
having accepted the appointment orders dated 30.06.1997, 29.11.1997
and 04.02.1998 wherein the leave vacancy of Mr.Keskar has been
mentioned in the second order, would estop the Appellant from
contending that he should be deemed to be permanent in service. I do not
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find that the Tribunal has dealt with these two issues in the impugned
judgment.
17 Nevertheless, it cannot be ignored that the Appellant was
engaged as a part time lecturer. If he was not satisfied with the said
purpose of appointments, he could have declined to accept the same. The
record reveals that initially the Petitioners had engaged three permanent
lecturers for Physics subject depending on the workload, namely, Principal
Mr.S.G.Khandkekar, Dr.H.C.Patni and Mr.S.S.Joshi. Principal
Mr.Khandkekar was performing administrative work as Principal and was
also imparting education. Mr.Keskar was throughout a part time
employee. The workload sheet placed before the Tribunal for the academic
year 1997-1998 indicates three lecturers for the subject of Physics i.e.
Dr.H.C.Patni, Mr.S.S.Joshi and Appellant Mr.G.M.Chindhe (part time). The
workload placed on record for the academic year 1998-1999 indicates
Dr.Patni being allocated 16 lectures per week and Mr.Joshi being allocated
10 lectures per week and the total lectures per week, according to the
strength of the students, was 26. Apparently, the workload has fallen in
1998-1999. Mr.Keskar, who was a part time lecturer, was also not kept in
employment for the academic year 1998-1999.
18 Considering the above, I find that the Tribunal has committed
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an error in directing the reinstatement of the Appellant as a part time
lecturer on temporary basis. In the absence of the workload, there could
not have been such an order.
19 Nevertheless, the conduct of the Petitioners in engaging the
Appellant as a part time lecturer on temporary basis, then introducing the
condition of NET/SET qualification and thereafter, claiming that he was
engaged in place of Mr.Keskar on leave vacancy, has caused prejudice to
the Appellant. The main thrust of the Petitioners before the Tribunal was
that the Appellant was not SET/NET qualified. So also, the Petitioners
have presumed that the service of the Appellant came to an end by efflux
of time and the Petitioners did not issue any communication to the
Appellant after 24.02.1998 that his services are no longer required as
Mr.Keskar has resumed duties.
20 Considering the above, I find it appropriate to impose costs
on the Petitioners in order to reduce the manifest inconvenience and
rigours of litigation suffered by the Appellant. No doubt, the order of
reinstatement cannot be sustained since the Appellant was engaged
initially on part time basis and thereafter, purportedly in place of
Mr.Keskar, who was on leave and was subsequently disengaged leaving no
scope for his reinstatement.
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21 This Writ Petition is, therefore, partly allowed. The impugned
judgment of the Tribunal dated 20.08.1999 is quashed and set aside. The
appeal stands rejected and the Petitioners shall pay to Respondent No.1/
original Appellant, an amount equal to three months gross salary at the
rate of the last drawn monthly salary of the Appellant within a period of
TWELVE WEEKS from today, failing which the said amount would carry
interest at the rate of 6% per annum from the date of the impugned
judgment of the Tribunal.
22 Rule is made partly absolute in the above terms.
23 Pending Civil Application, if any, stands disposed of.
kps (RAVINDRA V. GHUGE, J.)
