Atikh Ahemad Laikh Ahemad Inamdar vs The President Maulana Azad ...
2018 Latest Caselaw 124 Bom

                                                          WP/12197/2016
                                     1

           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                      BENCH AT AURANGABAD

                     WRIT PETITION NO. 12197 OF 2016

 Atik Ahemad Laikh Ahemad Inamdar
 Age 33 years, Occ. Assistant Professor 
 in Marathwada College of Education,
 Aurangabad, at present nil.,
 R/o National Colony, Roza Bagh,
 Aurangabad.                                     ..Petitioner

 versus

 1. The President,
 Maulana Azad Education Society,
 Rauza Bagh, Aurangabad.

 2. The Principal,
 Marathwada College of Education,
 Dr. Rafiq Zakaria Campus,
 Rauza Bagh, Aurangabad.

 3. The Registrar,
 Dr. Babasaheb Ambedkar
 Marathwada University
 Aurangabad.

 4. The Joint Director of Higher 
 Education, Aurangabad Division,
 Aurangabad.                                     ..Respondents

                                     ...
            Advocate for Petitioner : Shri Syed Masood Chand 
            Advocate for Respondents 1 & 2 : Shri Kakade A.N.
             Advocate for Respondent 3 : Shri Jarjare Prasad
                          h/f Shri Thombre S.S. 
                AGP for Respondent 4 : Shri Tambe S.K.
                                     ...

                       CORAM : RAVINDRA V. GHUGE, J.

Dated: January 08, 2018 ...

WP/12197/2016

ORAL JUDGMENT :-

1. Heard learned Advocates for the respective parties.

2. Rule.

3. By consent, Rule is made returnable forthwith and the

petition is taken up for final disposal.

4. The petitioner is aggrieved by the judgment and order dated

27.10.2016, delivered by the University and College Tribunal,

Aurangabad in Appeal No.5 of 2016, whereby, the said appeal

preferred by the petitioner, challenging his termination w.e.f.

31.5.2015, has been rejected.

5. The learned counsel for the petitioner / appellant submits

that an advertisement was published in Daily Navbharat on

23.5.2014, Mumbai Edition, by which, candidates were invited for

Walk-in-Interview for Marathwada College of Education,

Aurangabad. Two posts in the Marathi Medium, one for

Mathematics and one in History were advertised in the said

advertisement. Two posts of Assistant Professors were also

advertised in the un-aided category out of which one was a full time

WP/12197/2016

post in Geography and one was a part time post in English. The

qualifications prescribed by UGC, NTCE and the State Government

were made applicable. There is no dispute that the petitioner was

qualified and was eligible for appointment.

4. Contentions of the petitioner are that the advertisement does

not mention appointment on consolidated wages and on contractual

basis for 11 months. Though the petitioner was issued with the

appointment order dated 26.6.2014 on 11 months contractual basis,

the proposal sent to the University by letter dated 7.7.2014, seeking

approval was turned down by the University on the grounds that a

contractual appointment is impermissible. The petitioner had made

a representation for seeking payment of salary as is admissible to the

Assistant Professor. The Principal addressed the President of the

Educational institution vide covering letter dated 13.2.2015

recommending the case of the petitioner. The President of the

institution approved the grant of regular pay scale by passing an

order on the said letter.

5. Grievance is that despite the above, respondents 1 and 2 -

College and Institution, terminated the service of the petitioner on

the ground that his 11 months' contract had come to an end. It is,

therefore, contended that when the advertisement clearly indicated

WP/12197/2016

appointment of an Assistant Professor in the B.Ed. non-aided section

of the college and when the mistake of appointing the petitioner on

consolidated wages was rectified by the President of the institution,

the petitioner could not have been terminated for the reason that his

appointment was on contractual basis.

6. Shri Kakade, learned Advocate for respondent Nos.1 and 2

has strenuously defended the impugned order contending that the

appointment on contractual basis was accepted by the petitioner

with open eyes. As the management was having financial difficulties

and since the appointment was on un-aided college, the institution

was not receiving any salary grants. It, therefore, decided to appoint

the petitioner on contractual basis with consolidated salary of

Rs.20,000/- per month. When this was accepted by the petitioner,

his grievance after his discontinuation cannot be entertained.

7. He specifically points out from the affidavit-in-reply filed by

the institution before the tribunal that the petitioner should not have

accepted the appointment order, if he had any grievance about the

terms and conditions of his appointment. Having accepted the order,

it is not open to the petitioner to challenge the same as the

appointment order binds the petitioner as well as the management.

WP/12197/2016

8. Learned Advocate for the University has relied upon the

communication dated 9.3.2015 addressed to the educational

institution to contend that there was no provision for appointing an

Assistant Professor on consolidated salary and on contractual basis.

The Director BCUD, therefore, declined to grant approval. The

University then received a specific proposal, dated 12.3.2015 from

the institution, wherein, the deficiency of appointing the petitioner

for 11 months was cured and he was given a new appointment order

on regular basis.

9. Learned counsel for the petitioner submits that though the

educational institution has categorically corrected it's mistake and

converted the contractual appointment of the petitioner in to a

regular appointment, a specific appointment order was not served

upon the petitioner.

10. I have considered the above submissions and have gone

through the record available with the assistance of the learned

Advocates. The above contentions with regard to the advertisement,

first appointment order, communication by the University and the

letter of the management correcting the mistake of issuing

contractual appointment order to the petitioner, are undisputed. By

the approval of the President of the institution, full-fledged salary

WP/12197/2016

scale for the post of Assistant Professor was also made applicable to

the petitioner.

11. In the above back-drop, the issue would be as to whether the

educational institution can take a diagonally opposite stand and

contend that the appointment of the petitioner was never on regular

basis and was on contractual basis. Had the management

discontinued the petitioner, immediately after receiving the

communication from the University dated 9.3.2015, the contention

of the management could have been accepted. However, in response

to the deficiency pointed out by the University, the management

issued the letter dated 12.3.2015, addressed to the Deputy Registrar

of the University indicating that the selection of the petitioner was

by a duly constituted committee. There were two candidates

available and the petitioner was at Sr. No.1 in the merit list and was

hence recommended for appointment. So also, the fact that the

mistake of appointing the petitioner on 11 months' contract having

been rectified and converted into a regular appointment, keeping in

view that the President of the institution specifically approved the

regular pay scale of an Assistant Professor, would indicate that the

management has rectified it's mistake and has converted the

employment of the petitioner into a regular employment.

WP/12197/2016

12. The above aspects apparently have not been considered by

the University Tribunal. Even the advertisement, in pursuance to

which the petitioner had applied, never indicated that the

appointment would be on consolidated wages and for a contractual

period of 11 months. This was lost sight of by the University

Tribunal despite the fact that the Director, BCUD of the University

had indicated the said error and which was cured under the order of

the President of the educational institution.

13. In the above back drop, since the petitioner would have to be

treated as being a regular employee appointed as an Assistant

Professor in the College of Education, which is still in existence, the

order of termination of the petitioner w.e.f. 31.5.2015 deserves to

be set aside. Nevertheless, it cannot be ignored that if the petitioner

as an Assistant Professor is to be considered for regular employment,

he would have to undergo the probation period, since his suitability

to the organization would be considered after his completion of

probation period.

14. It needs to be noticed that the College of Education would

now be in the middle of it's academic year 2017-18, which normally

concludes by the end of May of the academic year. As such, even if

the petitioner is to be reinstated, he would be on probation and his

WP/12197/2016

performance will have to be considered. That would amount to

placing the petitioner on probation for a period of about 12 months

and normally the probation period is for a period of two years.

Ends of justice would, therefore, met by reinstating the petitioner as

an Assistant Professor on the regular pay scale as was approved by

the President of the educational institution, for a period of one year

of probation from the date of his reinstatement. His earlier

employment of 11 months would be as a probationer.

15. Considering the above, this petition is partly allowed. The

impugned judgment and order of the University Tribunal dated

27.10.2016 is quashed and set aside. Appeal No.5 of 2016 is partly

allowed and the termination order dated 21.4.2015 w.e.f. 31.5.2015

stands quashed and set aside.

16. Consequentially, the petitioner shall be reinstated as an

Assistant Professor with the said college w.e.f. 1.2.2018 on

probation. The earlier one year and the period from 1.2.2018 till

31.1.2019, shall be the period of probation of the petitioner. The

management shall assess his performance as is legally required to be

done on quarterly basis and any deficiency or adverse report shall be

brought to the notice of the petitioner so as to give him an

opportunity to improve himself in the event of there being any

WP/12197/2016

deficiency. After the probation period is concluded, the

respondent / management would consider the case of the petitioner

on it's own merits.

17. Rule is partly made absolute in the above terms.

( RAVINDRA V. GHUGE, J. ) ...

akl/d