Ramchandra Uttam Dhavale vs Padma Shamrao Patil & Ors
2017 Latest Caselaw 6875 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CIVIL APPELLATE JURISDICTION

                          WRIT PETITION NO.4267 OF 2003



          Ramchandra Uttam Dhavale                               ... Petitioner

                  vs.

1         Smt. Padma Shamrao Patil

2         Shahu Shikshan Prasarak Seva Mandal
          Vadgaon, Tal. Hatkanangale,
          District Kolhapur.

3         The Principal,
          Vijay Sinh Yadav Arts, Science and Commerce
          College, Peth Vadgaon,

4         The Joint Director of Higher Education,
          Kolhapur Region, Kolhapur,

5         The Registrar, Shivaji University,
          Kolhapur.

6         The Director,
          College & University Development Board,
          Shivaji University, Kolhapur.           ... Respondents


Mr. N.V. Bandiwadekar i/b Mr. Sagar Mane for the Petitioner.
Mr. C.G. Gavnekar a/w Mr. G.S. Hiranandani for the Respondent No.1.
Mr. S.V. Pitre for the Respondent Nos.2 and 3.
Mrs. K.R. Kulkarni, AGP for the Respondent No.4/State.
Mr. A.B. Borkar for the Respondent Nos.5 to 6.



                                        Coram           :        A.A.Sayed, J.

                  Judgment Pronounced on                :        7 September 2017



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JUDGMENT:

1. The challenge in this Petition under Article 227 of the

Constitution, is to the judgment and order dated 11 March 2003 passed

by the College Tribunal whereby the Appeal filed by the Respondent

No.1/original Appellant under section 59 of the Maharashtra

Universities Act, 1994 was partly allowed. The Petitioner was arrayed

as Respondent No.3 in the said Appeal before the College Tribunal.

The operative part of the impugned judgment reads as follows:

"1. Appeal is partly allowed and disposed off with no order as to costs of all the parties.

2. The termination order dated 5.8.2002 is hereby held illegal and the decision taken by the Respondent Nos.5 and 6 also to withdraw the approval of the appellant which was communicated to Respondent No.1 by the letter dated 25.7.2002 is also hereby held illegal and improper, in respect of the appointment of appellant.

3. The Respondent Nos.1 and 2 are hereby directed and ordered to issue reinstatement order to the appellant with effect from the opening of the new academic year i.e. from June 2003, on which date the college of the respondent Nos.1 and 2 shall start working after vacation. However, it is made clear that the services of the appellant would be deemed and presumed to have continued for the purpose of seniority, pay scale, promotions and pension purposes as from the date of her appointment on the basis of the statutory selection i.e. from 23.11.2000 onwards.

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4. However, since the period of non availability of the service because of the intervening termination order is not that long and since the same is less than one year, the appellant is hereby held entitled to get the salary and pay only after her reinstatement. However, it would be for the respondent Nos.1 and 2 to consider the issue of backwages for the intervening period if the appellant makes such a request in writing to them on humanitarian ground or other grounds."

2. The case of the Respondent No.1- Padma (original Appellant) in

Appeal in a nutshell was as follows:

She belongs to open category and initially came to be appointed

as Lecturer in Marathi subject by a Local Selection Committee in the

Respondent College run by the Respondent Management from 13

August 1999 till 13 October 2000. Thereafter, pursuant to an

advertisement by the Management, she had applied for the post of

Lecturer in Marathi subject as a regular appointment. The said post

was advertised for open category. Petitioner - Ramchandra, (original

Respondent No.3 in the Appeal) had also applied for the said post. A

regular Selection Committee interviewed the candidates and declared

that the Petitioner was selected at serial No.1 while she was selected

at serial No.2. It came to light that the Petitioner had refused to join

though he was issued with an appointment order by the Management.

On refusing to join, she was given the appointment by the Management

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vide appointment letter dated 22 November 2000. She was appointed

on probation for a period of two years and she accordingly joined

service with effect from 29 November 2000. On 10 July 2000, the

Management tried to stop her from signing the muster roll. She

therefore, made a Complaint to the Management as well as the

University. She signed the muster roll till 22 July 2002, however, from

23 July 2002 she was not allowed to sign the muster roll though she

was continuing to serve the College. She was told that the Petitioner

had made a Complaint with the University Authorities interalia stating

that he was selected by the regular Selection Committee at serial No.1

and that he was entitled to the said post and the appointment granted

to her was illegal. Without giving any hearing on the Complaint made

by the Petitioner, she was issued a termination order dated 5 August

2002 which stated that her services were terminated on the Complaint

made by the Petitioner since the Respondent University found his

Complaint valid and had cancelled the approval given by the University

to her. On her enquiry she was supplied the copy of the letter written by

the Petitioner to the Director College & University Development Board,

Shivaji University (Respondent No.6 herein). The termination order

dated 5 August 2002 was illegal and unjust. She was duly qualified and

was appointed as a teacher in the senior College as she was M.A. with

First Class and also had passed her NET examination. She has put 1½

years service on her appointment by the Local Selection Committee

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prior to her regular selection. She has thereafter discharged services

for about two years. She had received regular approval from the

University. Her work and behavior was satisfactory. The Vice

Chancellor of the University and the Director, College & University

Development Board did not have such powers to intervene in the

matter. The Petitioner was serving elsewhere and was not interested in

serving the Respondent College. After long lapse of time, the Petitioner

cannot be allowed to intervene in this manner and cause hardship to

her career. She could not have been terminated merely because of the

withdrawal of approval by the University. No order was communicated

to her, as to how and under what circumstances her approval was

withdrawn. The impugned order of termination dated 5 August 2002

was therefore required to be set aside and she be reinstated alongwith

full backwages.

3 The Petitioner-Ramchandra (original Respondent No.3 in

Appeal) had filed his Reply to the Appeal filed by Respondent No.1 -

Padma before the College Tribunal. The case of the Petitioner in his

Reply was as follows:

The College Tribunal had no jurisdiction to decide the Appeal.

The University had withdrawn the approval of the Respondent No.1

Padma. He had not received any appointment order allegedly given by

the Respondent Management and therefore there was no question of

refusing the alleged appointment order to join service. He had lodged

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the Complaint with the University. He belongs to reserved category and

he had appeared for the selection of open post on merit. The

contention of Respondent No.1 that there was no deviation in the merit

list was not true. He was selected with the first preference given by the

Selection Committee. Despite that the Respondent Management

appointed the Respondent No.1 who was given second preference by

the Selection Committee. This was clear violation of statutory

provisions which caused injustice to him. He was not employed

anywhere before 26 August 2002. When he learnt that the Respondent

No.1 was appointed by the Respondent Management in violation of the

selection procedure of the University, he lodged a Complaint and

appealed to the Vice Chancellor of the University to institute an enquiry

about the injustice done to him.

4 The Respondent No.4 Shivaji University, Kolhapur, had also filed

its Reply in the Appeal. The case of the Respondent University before

the College Tribunal was as follows:

The College Tribunal had no jurisdiction to entertain and try the

Appeal under the provisions of section 59 of the Maharashtra

Universities Act, 1994. The Selection Committee had selected the

Petitioner at serial No.1 while the Respondent No.1 was at serial No.2.

Therefore, the Petitioner gets a first right over the post. However, as

the Respondent University received a letter dated 26 May 2001

purporting to be a letter written by the Petitioner allegedly stating that

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he is not interested in the post as the Respondent College is being run

on non-grant basis, the Respondent University took a decision to give

approval to Respondent No.1. However, later on it was revealed on

Complaint by the Petitioner that in fact such letter was never given by

him. Due to the Complaint of the Petitioner the Respondent University

appointed a fact finding Committee which examined all the relevant

papers and gave an opportunity to the Respondent Management as

well as the Petitioner and came to the conclusion that an Affidavit be

taken from the Petitioner that the aforesaid letter was not written by him

and further action be taken accordingly. The Petitioner submitted the

Affidavit that no such letter dated 26 May 2001 was written by him to

the Respondent University and that he has not received the

Respondent University letter dated 24 May 2001 and hence there was

no question of replying to the same. The Petitioner has further

mentioned in the Affidavit that his name is Ramchandra Uttam Dhavale

while the name written on the letter dated 26 May 2001 was Uttam

Ramchandra Dhavale. It was further pointed out in the said Affidavit

that the signature on the said letter was not his. In these

circumstances, in order to do complete justice between the parties and

as it was revealed that the appointment given to Respondent No.1 was

vitiated by fraud, misrepresentation and mistake, the Respondent

University took a decision to withdraw the approval given to

Respondent No.1 and give the same to the Petitioner. The Respondent

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No.1 was not given an opportunity before the fact finding Committee as

this was an internal fact finding Committee appointed to report to the

University to see mainly the record of the Respondent Management.

5. The Respondent Management had also filed Reply before the

College Tribunal. It is interalia averred in the Reply as follows:

It is true that there was some communication presumably from

the Petitioner (Respondent No.3 in Appeal) to the effect that he is not

interested in joining the service in the College. The Petitioner was

originally selected and appointed in the said post. The communications

by the Management/College did not reach the Petitioner. They had

informed the Petitioner to submit the copies of his certificate and mark-

sheets, but no response was received from him. They had informed

these facts to the Shivaji University. The University conducted an

inquiry in this matter and after hearing the parties the Respondent No.6

Board cancelled/withdrew the approval given to the Respondent No.1

and directed the Management that the Petitioner be appointed and be

allowed to resume duties. As per these directions, which are binding

upon them, they have effected the termination of the Respondent

No.1's services and have appointed the Petitioner who in turn has

joined the services. The action on the part of these respondents is

bonafide.

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6         I have heard learned Counsel for the parties.



7         The learned Counsel for Petitioner-Ramchandra has filed a

written Synopsis and made the following submissions:

(i) The Respondent No.2 College is an un-aided senior College

affiliated to the Respondent No.5 - University i.e Shivaji

University, Kolhapur. In June 2000 the Respondent No.1

Management issued public advertisement inviting applications for

one unreserved post of Lecturer in Marathi subject. On

13.10.2000 (Exhibit-A, page 72 of the Petition) - the University

Selection Committee interviewed 6 candidates and prepared its

Selection Report. The Petitioner was selected at Sr.No.1, while

the Respondent No.1 was selected at Sr.No.2. Against the name

of the Petitioner, it was stated that he is selected and if he does

not join, then the Respondent No.1 is selected.

(ii) It was necessary for the Respondent Management to issue

the order of appointment to the Petitioner and informing him to join

within specified time, failing which the candidates at Sr.No.2 shall

be given appointment. However, the Petitioner did not receive

any such letter, order or communication from the Respondent

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No.2 calling upon the Petitioner to join the post of full time

Lecturer in Marathi subject.

(iii) On 16.11.2000 vide letter No.VYMP/197 dated 16.11.2000

the Respondent Management submitted the Selection Committee

report to the Vice Chancellor. On 22.11.2000 (Exhibit-B, page 74

of the Petition) the Respondent Management issued appointment

order to the Respondent No.1 with effect from 29.11.2000. It was

stated if her acceptance is not received upto 7 days, her

appointment is liable to be cancelled.

(iv) By letter dated 25.11.2000 (Exhibit-C, page 75 of the

Petition) the Respondent Management forwarded to the

Respondent University the proposal to grant approval to above

appointment of the Respondent No.1. It was stated that the

appointment order was given to the Petitioner but he did not join

within the given period of 7 days and therefore, the appointment

order was given to the Respondent No.1, to which the approval

may be granted. On 25.01.2001 (Exhibit - D, Page 76 of the

Petition) the Respondent University issued order to grant

approval to the appointments of Lecturers made in the

Respondent College. The University further directed the

Respondent No.3 - Principal to submit the attested copies of the

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Petitioner's mark lists in B.A., M.A. and SET exams and also of

SET exam of the Respondent No.1. It was further directed to

make appointment of candidates as per the order of merit in the

report of the Selection Committee. On 23.2.2001 (Exhibit-E, page

79 of the Petition) the Respondent Management addressed a

letter informing the University, inter alia, that by letter dated

16.10.2000, the College had made correspondence with the

Petitioner demanding from him the attested copies of the mark

lists for B.A. and M.A. and SET, but the same are not yet received

from the Petitioner and hence the Management cannot submit the

same to the University. However, the Petitioner never received

any such letter dated 16.10.2000 or of any other date from the

Management. Even no such letter has been produced by the

Management before the Tribunal or before this Hon'ble Court.

(v) On 24.5.2001 the University is said to have issued a letter to

the Petitioner, calling upon him to submit his testimonials to the

University, since the University was informed by the College that

even though the said certificates were demanded by the College,

the same are not submitted. Learned Counsel submitted that the

Petitioner never received the said letter. Relying upon a hand

written letter dated 26.5.2001 (Exhibit-H, page 84 of the Petition)

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alleged to be written by the Petitioner, the University was informed

by the Management that the Petitioner had appeared for the

interview being under the impression that it is an aided College,

but after the interview he came to know that it is an unaided

College and therefore, he did not submit the documents to the

University although demanded. This letter is neither written nor

signed by the Petitioner. The name of the Petitioner is

Ramchandra Uttam Dhavle, whereas in this letter the name is

mentioned as Uttam Ramchandra Dhavle. The signature on this

letter is not that of the Petitioner. Thus the said letter as well as

the signature thereon is false and forged. The aforesaid record

was created only to show that after being selected by the

University Selection Committee, the offer of appointment was

given to the Petitioner by the Management, but he did not join the

post within the time of 7 days, and that therefore, the appointment

was given to the next candidate on the select list viz the

Respondent No.1.

(vi) On 21.6.2001 (Exhibit-F, page 81 of the Petition) the

University issued an order granting approval to the Respondent

No.1. This was in reference to the aforesaid letter dated 23.2.2001

sent by the Management to the University. It is submitted that by

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that letter the Management had not at all sought approval to the

appointment of the Respondent No.1, but still the University

granted approval by referring to that letter. In the aforesaid letter

of approval, it was stated that if any complaint would be received

in respect of the said approval, the approval shall be cancelled.

On 16.8.2001 (Exhibit-I, page 85 of the Petition) when the

Petitioner came to know that inspite of having been placed at

Sr.No.1 in the select list he has not been given the appointment

and on the other hand the Respondent No.1 who was at Sr.No.2

in the select list has been given the appointment, the Petitioner

made a complaint to the Vice Chancellor of the University.

(vii) On 4.9.2001 (Exhibit-J, page 86 of the Petition) the

Respondent No.6 (Director, Board of College & University

Development) sent a letter to the Management informing them

that a Complaint is received from the Petitioner about not being

allowed to join. The Management was directed to remain present

in the University on 25.2.2002 alongwith the original application of

the Petitioner, the original letter sent to the Petitioner by R.P.A.D.

and if there are any other documents signed by him. It appears

that the Respondent Management did not respondent to the said

letter. On 15.3.2002 (Exhibit - L, page 88 of the Petition) the

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Respondent No.6 therefore, once again sent similar notice to the

Respondent Management directing them to remain present in the

University on 11.3.2002 with the above mentioned papers and

documents. On 20.3.2002 (Exhibit-M, page 89 of the Petition) in

the meeting held at the University, in the presence of the

Chairman and the Secretary of the Management, the Incharge

Principal of the College, the Petitioner alongwith his

representative, the matter was discussed. The Petitioner stated

that he had not received any appointment order from the

Management and therefore, there was no question of he failing to

join the services within 7 days. He further stated that he has not

at all addressed the letter dated 26.5.2001 to the University. At

the said meeting, the Management did not produce any record to

show that they had issued the order of appointment to the

Petitioner with instruction to join within 7 days and since he did not

join within the said period, that the Respondent No.1 came to be

issued the appointment order.

(viii) The Secretary of the Management stated that the

permission may be granted to re-advertise the said post and to fill

up the same or whatever decision would be taken by the

University, the same shall be accepted by the Management. The

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University representative stated that an Affidavit on stamp paper

should be obtained from the Petitioner that he had not written the

letter dated 26.05.2001 ( incorrectly mentioned as letter dated

16.08.2001). On 25.7.2002 (Exhibit-N, page 91 of the Petition) the

Respondent No.6 (Board of University) therefore, informed the

Respondent-Management that since the Complaint made by the

Petitioner against the order of approval dated 21.6.2001 of the

Respondent No.1 is found to be correct, the said order of approval

is cancelled and in that place the Petitioner is granted approval as

full time Lecturer for Marathi subject. The Respondent

Management was therefore, directed to issue appointment order

to the Petitioner and after allowing him to join the services in the

College, to submit this information to the University without delay

by filing up the changes in Staff Form. On 5.8.2002 (Exhibit -O,

page 92 of the Petition) the Respondent Management issued

letter to the Respondent No.1 informing her that the University has

cancelled the approval granted to her and it is directed that the

Petitioner should be appointed. Accordingly the Respondent No.1

was relieved from service.

(ix) On 20.8.2002 (Exhibit-P, page 93 of the Petition) the

Respondent Management issued appointment order to the

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Petitioner as full time Teacher. Accordingly the Petitioner joined

the Respondent College. On 18.8.2002 (Exhibit-A4, page 23 of

the Petition) the Respondent No.1 filed Appeal No.59 of 2012 (S)

before the College Tribunal, Pune against the aforesaid order of

termination and seeking to direct the Respondents to reinstate her

in service. However, there was no prayer made to set aside the

order issued by the University cancelling the approval which was

previously granted to the appointment of the Respondent No.1.

On 11.3.2003 (Exhibit -A6, page 39 of the Petition) the College

Tribunal by the impugned order partly allowed the Appeal filed by

the Respondent No.1. On 17.5.2003 (Exhibit-R, page 109 of the

Petition) in view of the order passed by the College Tribunal, the

University directed the Management to allow the Respondent

No.1 to join the services.

(x) After the passing of the impugned order, on 23.06.2003

(Exhibit-S, page 110 of the Petition) the Respondent Management

issued an order and directed the Respondent No.1 to resume duty

on the same date. On 23.6.2003 (Exhibit-T, page 111 of the

Petition) the Respondent No.1 joined the College by submitting

joining report. In June 2003 the Petitioner filed the present Writ

Petition in this Court to challenge the above order of the College

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Tribunal. On 24.06.2003 the learned Single Judge passed order

of status-quo in the Writ Petition. Inspite of this, the Management

issued ante-dated order on 23 June, 2003 and terminated the

services of the Petitioner. On 28.6.2003 the learned Single Judge

admitted the Writ Petition and directed that the status-quo as of

that day shall continue till further orders. The Court further

observed that it is open to the Petitioner to file appropriate

Application with regard to the grievance that, to stultify the order of

status-quo passed on 24 June 2003, the Management had

passed ante-dated order on 23 June 2003. Rule was returnable

peremptorily in February 2004. Since the Writ Petition was not

placed for final hearing, the Petitioner filed Civil Application

No.1541 of 2004. On 15.10.2004 the Hon'ble Court directed that

keeping in view the peculiar facts and circumstances of the case,

the Writ Petition be placed for final hearing in the 1 st week of

March 2005. However, the Petition was not placed for final

hearing in March 2005. The Petitioner filed Civil Application

No.1841 of 2005 to place on record the ante-dated order of

termination passed by the Management on 23.6.2003. On

25.8.2006 this Court directed that the said Civil Application shall

be heard alongwith the main Writ Petition. The Court also

observed that, in the meanwhile it is open for the Petitioner to

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challenge the order of termination before the Tribunal without

prejudice to his rights and contentions in the present Writ Petition.

(xi) Accordingly the Petitioner filed Appeal No.3 of 2007 (S)

before the College Tribunal at Kolhapur to challenge the aforesaid

termination order dated 23.6.2003. However, till date the said

Appeal has not been heard by the Tribunal on the ground that the

aforesaid Writ Petition is pending in this Court. On 19.10.2011 the

Petitioner therefore, filed Civil Application No.123 of 2012 for a

direction to College Tribunal to decide the said Appeal on its own

merits irrespective of pendency of the present Writ Petition in this

Hon'ble Court. Alternatively it was prayed to expedite the hearing

of the Writ Petition. On 27.1.2012 the Hon'ble Court disposed of the

said Civil Application. The R&P is called for from the College Tribunal

and the hearing came to be expedited.

Learned Counsel for the Petitioner-Ramchandra in support of his

contentions has placed reliance on the following judgments:

i) United India Insurance Company Limited Vs. Rajendra Singh:

Sanjay Singh, 2000 DGLS(Soft.) 542;

ii) Indian Bank Vs. Satyam Fibres (India) Pvt. Ltd., (1996) 5 Supreme Court Cases 550;

iii)       S.P. Chengalvaraya Naidu (Dead) by LRS. Vs. Jagannath (Dead)



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by LRS. And others, (1994) 1 Supreme Court Cases 1;

iv) Tanaji Madhukar Barbade Vs. State of Maharashtra & Ors.

2010(6) Mh.L.J. 901;

v) Kendriya Vidyala Sangathan and Others Vs. Ajay Kumar Das and others, (2002) 4 Supreme Court Cases 503;

vi) T. Vijendradas and another Vs. M. Subramanian and others (2007) 8 Supreme Court Cases 751;

vii) Ganpatbhai Mahijibhai Solanki Vs. State of Gujarat and others, (2008) 12 Supreme Court Cases 353;

viii) Sunil Gayaprasad Mishra Vs. Rashtra Sant Tukdoji Maharaj University & others, 2012(6) Bom.C.R. 37;

ix) Arti d/o Vithalrao Warkhede Vs. Education Officer (Secondary) Zilla Parishad, Wardha and others, 2011(1) Mh.L.J. 638;

x) Shaila Subrao Shetye and others Vs. Kunda Madhukar Shetye and others, 2014(3) Mh.L.J. 194;

xi) Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil, 2010(6) Mh.L.J. 661;

xii) Secretary, State of Karnataka and others Vs. Umadevi (3) and others, 2006 Supreme Court Cases (L&S) 753.

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8. Learned Counsel for the Respondent No. 1-Padma has also filed

synopsis and submitted as under:

(i) Before the College Tribunal, the appointment of the Respondent

No. 1 was never challenged by the Petitioner.

(ii) No allegations of misrepresentation, fraud and forgery were

made in the Reply filed by the Petitioner. No particulars of alleged fraud

were given in the pleadings of the Peititoner.

(iii) There were no allegations in the Reply filed by the Petitioner

against the Respondent Management or as to how Respondent No. 1

was responsible for getting the approval fraudulently.

(iv) It is not permissible to raise the plea of misrepresentation, fraud

or forgery for the first time in the present Writ Petition filed under Article

227 of the Constitution of India.

(v) The scope of this Court under Article 227 of the Constituion is

limited and only errors of law apparent on record ought to be interfered

and findings of fact do not warrant interference unless the findings are

perverse or not based on any material and cause manifest injustice.

(vi) The Respondent No. 1 was appointed by the Management by

Appointment order dated 22 November 2000 as a Lecturer and the

University had approved her appointment and the Respondent No.1

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had acquired a vested right in the post. Hence, if her appointment was

to be disturbed, she was required to be granted an opportunity to be

heard by the Committee which was constituted by the University before

her approval was revoked.

(vii) The College Tribunal had rightly set aside the order of

termination dated 05-08-2002 and the decision of the Respondent No.5

(University) and the Respondent No. 6 (Director, College & University

Development Board, Shivaji University).

Learned Counsel for the Respondent No.1-Padma has relied upon the

following judgments:

i) Essen Deinki Vs. Rajiv Kumar, (2002) 8 Supreme Court Cases 400;

ii) Chief Engineer, M.S.E.B. and Another Vs. Suresh Raghunath Bhokare, (2005) 10 Supreme Court Cases 465.

9 Learned Counsel for the Respondent No. 5 and 6 (University and

Board) supported the impugned order of the College Tribunal and

submitted that the Committee constituted by the University was a fact

finding Committee and the Management was heard and that it was not

necessary to hear the Respondent No. 1. He has relied upon the

judgment in State of Chhattisgarh and others Vs. Dhirjo Kumar Sengar,

(2009) 13 Supreme Court Cases 600.

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10. I have given due consideration of the rival contentions. Prima

facie I find substance in the submissions of the learned Counsel for the

Petitioner. In my view, the Respondent Management has not come

clean. It is an admitted position that as per the Report dated

13.10.2000 of the Selection Committee constituted by the University

the Petitioner was selected and was shown at Sr. No. 1. The

Respondent No. 1 was shown at Sr. No. 2. The Petitioner had a first

right over the post. It is only when the Petitioner would not join service

that Respondent No. 1 could have been selected. It was therefore for

the Management to show that despite the Petitioner being intimated

about his selection and appointment, he did not join service and

therefore the appointment was given to the Respondent No. 1. It is

therefore necessary to see what was the stand of the Management

before the College Tribunal. The Reply filed by the Management before

the College Tribunal is curious. It states that the Petitioner was

originally selected and appointed to the said post. It further states that

the communications by the Management/College did not reach the

Petitioner. It also asserts that they had informed the Petitioner to

submit copies of his certificates and mark-sheets, but no response was

received from him. The Reply avers that there was some

communication 'presumably' from the Petitioner to the effect that he is

not interested in joining the service in the College. What is of

significance, however, is that no particulars of such communications

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have been furnished nor such communications produced before the

College Tribunal by the Management.

11 It needs to be borne in mind that the Respondent No. 1 was

issued an appointment order dated 22.11.2000. Therefore it was

necessary for the Management to show communications, if any, sent

by them to the Petitioner prior to this date viz. 22.11.2000. The

Petitioner in the present proceedings has annexed copies of certain

communications. At Exhibit E at page 79 of the Petition, the Petitioner

has annexed a letter dated 23.02.2001, written by the Management to

the Respondent No. 6, Director of Board of College and University

Development, Shivaji University, interalia stating that by communication

dated 16.10.2000, the College had made correspondence with the

Petitioner demanding from him the attested copies of the mark lists for

B.A., M.A and SET, but the same are not yet received from the

Petitioner and hence the Management cannot submit the same to the

University. According to the Petitioner, he had never received any such

letter dated 16.10.2000 or of any date from the Management.

Pertinently, no such letter has been produced by the Management

before the College Tribunal or even before this Court. No appointment

order allegedly issued in favour of the Petitioner prior to the

appointment to Respondent No.1 is produced before the College

Tribunal or before this Court. At Exhibit H at page 84 of the Petition is

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a hand-written letter dated 26-05-2001 (which is much after the

appointment order dated 22.11.2000 issued to the Respondent No. 1)

alleged to be written by the Petitioner informing the University that the

Petitioner had appeared for the interview being under the impression

that it was an aided College, but after the interview, he came to know

that it is an unaided College and therefore he did not submit the

documents to the University, though demanded. The Petitioner has

stated in the present Petition that this letter dated 26-05-2001 is neither

written nor signed by him. The learned Counsel for the Petitioner has

pointed out that in this hand-written letter dated 26-05-2001, the name

of the Petitioner is written as Uttam Ramchandra Dhavle when his

name is Ramchandra Uttam Dhavle and the said letter is fabricated

and forged. Prima facie, the learned Counsel for the Petitioner is right

in his submission that a person addressing the letter would certainly

not write his father's first name first. It is submitted that in any event,

this letter shows the date as 26-05-2001, which is after about 6 months

from 22-11.2000, when the order of appointment was already issued to

the Respondent No. 1 and there was no occasion for the Petitioner to

write such a letter. The Petitioner has denied that he had received any

communication dated 24.05.2001 from the University which was

subsequent to the appointment of the Respondent No. 1. In these

circumstances, I find force in the submission of the learned Counsel for

the Petitioner that the Management wanted to appoint the Respondent

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No. 1 as she was already working the College as a temporary lecturer

notwithstanding the Report of the Selection Committee.

12 Having observed as above, it is however required to be noted

that most of the communications/documents are for the first time

annexed to the present Writ Petition by the Petitioner. The said

communications/documents were not before the College Tribunal whilst

passing the impugned order. The entire thrust of the arguments of the

learned Counsel on behalf of the Petitioner is that the Management

and Respondent No.1 have practiced fraud and forgery and have

fabricated documents. However, it is noticed that in the Reply dated 02

December 2002 filed by the Petitioner before the College Tribunal there

is no pleading about fraud or forgery by the Management or by

Respondent No.1. No particulars of the fraud alleged are averred in

the Reply, though at the relevant time the Complaint of the Petitioner

made to the University was pending and meetings were held before the

fact finding Committee constituted by the University. As a matter of fact,

the Petitioner had also filed an Affidavit dated 31-05-2002 before the

fact finding Committee disclosing that he had no concern with the letter

dated 26-05-2001 allegedly written by him and the said letter mentions

his name as Uttam Ramchandra Dhavale, when his name is

Ramchandra Uttam Dhavale. The impugned order of the College

Tribunal was ultimately passed on 11-03-2003 and the Petitioner ought

to have brought forth all the facts before the College Tribunal. It now

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trite that fraud has to specifically pleaded alongwith with particulars.

The allegations of fraud by the University in their Reply would not

absolve the Petitioner from making necessary averments of fraud,

forgery and fabrication which are made by the Petitioner for the first

time in the present Writ Petition. It was for the Petitioner to state before

the College Tribunal that there was fraud practiced and the hand-

written letter dated 26-05-2001 was not written by him and that the

same was a forged and fabricated document by the Management.

However, inasmuch as, prima facie, I find substance in the case of the

Petitioner that a fraud has been practised in the manner in which the

Respondent No.1 came to be appointed bypassing the right of the

Petitioner to the post of Lecturer, it would not be proper to turn a blind

eye as fraud would vitiate the entire appointment process.

13 The College Tribunal, unfortunately, has proceeded on the basis

that once approval is granted, the same cannot be revoked. The

College Tribunal has failed to consider that the approval granted by the

University to the appointment of Respondent No.1 was a conditional

approval and the letter dated 21 June 2000 of the University granting

approval to the appointment of Respondent No.1 specifically stated

that in the event any complaint is received in respect of grant of

approval, the approval shall stand cancelled. Even the letter dated 25

January 2001 of the University to the College specifically stated that

the Vice Chancellor has approved the preference wise

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recommendation made by the Selection Committee, however, if any

complaint in that respect would be found by the Vice Chancellor to be

proper, the approval would be cancelled. In these circumstances, the

College Tribunal had erred in holding that once the approval was

granted by the University, the same should not have been withdrawn in

view of the language of the Statute 195(3)(e) of Shivaji University. The

College Tribunal has incorrectly interpreted the provision of Statute

195(3)(e) and has not gone into the validity of the appointment of the

Respondent No.1. In any event, prima facie, if a case of fraud is made

out, it would vitiate the entire process of appointment and the approval

granted to such appointment. The College Tribunal further erred in

observing that the Petitioner who was the complainant in the inquiry

proceeding before the University was shown as a member of the

Inquiry Committee. The Petitioner who was the complainant and his

representative were obviously present before the fact finding

Committee of the University in their capacity as the Complainant and

his representative not as members of the Committee. Even the fact

finding Committee of the University found that the appointment of

Respondent No. 1 was vitiated by fraud and the University took a

decision to withdraw the approval given to the Respondent No. 1 and

granted approval to the Petitioner. Though it may be a matter of debate

whether or not the Respondent No. 1 ought to have been heard by the

fact finding Committee of the University before the revocation of the

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approval inasmuch as it was for the Management to explain the

allegations of fraud and the circumstances under which it appointed the

Respondent No. 1 instead of the Petitioner, at the same time, the

learned Counsel for the University is also prima facie not wrong in his

submission that the Respondent No. 1 could not have contributed in

any manner in regard to the fraud alleged against the Management and

hearing to the Respondent No.1 would be a useless formality. In these

circumstances, in my opinion, it would be necessary for the College

Tribunal to go into the issue of revocation of the approval by the

University threadbare. The entire approach of the College Tribunal and

its conclusions, in my view, are not at all justified and the impugned

order of the College Tribunal cannot be sustained.

14 It is an admitted position that the services of the Respondent

No.1 were terminated only because the University had revoked the

approval granted by it to the appointment of the Respondent No.1. In

these circumstances, it can hardly disputed that the College Tribunal is

required to go into the issue of validity of the revocation of the approval

while deciding whether the order of termination of the Respondent No.1

by the Management was legal or otherwise. In Arti d/o Vithalrao

Warkehede vs. Education Officer (Secondary), Zilla Parishad,

Wardha, 2011 (1) MhLJ 638, it has been held by the Division Bench of

this Court that in an Appeal under section 9 of the Maharashtra

Employees of Private Schools (Conditions of Service) Regulation Act,

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1977, challenging termination, the Appellant can challenge the rejection

of approval by the Education Officer. The same principle, in my view,

would apply in the case of an Appeal filed before College Tribunal

under section 59 of the Maharashtra Universities Act, 1994 challenging

termination order and it would be open to the College Tribunal to go

into the legality and validity of the rejection of the approval granted by

the University in the Appeal.

15. It is pointed out that Appeal No. 3 of 2007 filed by the Petitioner

to set aside his termination and seeking reinstatement is pending

before the College Tribunal. It cannot be disputed that unless that

substantive Appeal is decided, the Petitioner cannot be granted any

effective reliefs in his favour with regard to his appointment in the

present Petition.

16. Taking an overall view of the matter, in my opinion, the following

order would meet the ends of justice:

i) The impugned order of the College Tribunal is set aside and the

matter is remitted back to the College Tribunal to decide Appeal

No.59 of 2002 of the Respondent No. 1 afresh. The said Appeal

No.59 of 2002 of the Respondent No.1 shall be heard alongwith

the Appeal No.3 of 2007 of Petitioner which is pending before

the College Tribunal.

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ii)      The College Tribunal shall permit the parties to amend their

pleadings in all respects including challenge to the revocation of

approval by the University as also to incorporate the

communications/documents annexed to the present Petition and

to incorporate averments in respect of fraud or forgery or

misrepresentation etc. made by the Petitioner, if appropriate

Applications are made in that regard within a period of four

weeks from today.

iii) The University shall submit the entire record and files in respect

of revocation of approval to the appointment of Respondent No.

1 including the papers of the fact finding Committee before the

College Tribunal. The parties would be permitted to file additional

Replies, if they so desire. The College Tribunal shall go into the

issue of termination/appointment, approval and revocation of

approval threadbare and without being influenced by the findings

of the fact finding Committee of the University.

iv) The Appeals shall be decided expeditiously and in any event by

31 January 2018. Until the decision of the College Tribunal, the

service of the Respondent No.1 shall not be disturbed.

v) The parties shall appear before the College Tribunal on

25 September 2017 at 11 a.m. when appropriate directions may

be issued.

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vi)     The College Tribunal shall not be influenced by the observations

in the present judgment. All contentions of the parties are kept

open.

vii) Registry to remit the R & P to the College Tribunal forthwith.

(A.A.Sayed, J.)

Learned Counsel for the Respondent No.1 seeks stay to the operation

of this order. In my view, inasmuch as, the service of the Respondent

No.1 is not disturbed until the decision of the College Tribunal, it is not

necessary to grant any stay.

(A.A.Sayed, J.)