Jalgaon Zilha Maratha Vidya ... vs Bhagwat Murlidhar Patil & Ors
2018 Latest Caselaw 696 Bom

                                                     WP No. 2231/05 & Anr.
                                      1


                  IN THE HIGH COURT AT BOMBAY
              APPELLATE SIDE, BENCH AT AURANGABAD

                        WRIT PETITION NO. 2231 OF 2005

       Bhagwat s/o. Murlidhar Patil,
       Age 42 years, Occu. Service (t),
       R/o. Badhe Complex, Varangaon,
       Tq. Bhusawal, Dist. Jalgaon.                ....Petitioner.

               Versus


1.     Jalgaon District Maratha Vidya
       Prasarak Co-operative Samaj Ltd.,
       Jalgaon.
       (Through it's Secretary)

2.     The Principal,
       Shri. S.S. Patil Arts,
       Shri. Bhausaheb T.T. Salunke,
       Commerce and Shri. G.R. Pandit,
       Science College, Jalgaon.

3.     The Principal,
       Arts, Commerce and Science College,
       Varangaon, Tq. Bhusawal, Dist. Jalgaon.

4.     The North Maharashtra University
       Jalgaon. (Through it's Registrar)

5.     The Joint Director
       Higher Education (Grants)
       Jalgaon.

6.     State of Maharashtra
       Higher Education Department,
       Mantralaya Mumbai,
       Through it's Secretary               ....Respondents.


Mr. B.R. Warma, Advocate for petitioner.
Mr. Y.B. Bolkar h/f. Mr. A.B. Girase, Advocate for respondent No. 4.
Mrs. D.S. Jape/Ansingkar, AGP for respondent No. 6/State.




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                                                      WP No. 2231/05 & Anr.
                                    2


                                   WITH
                      WRIT PETITION NO. 4146 OF 2003
                                   WITH
                    CIVIL APPLICATION NO. 9369 OF 2005


1.     Jalgaon Zilha Maratha Vidya Prasarak
       Cooperative Samaj Ltd., Jalgaon,
       through its Honourary Secretary,
       Shri. Tanaji Keshavrao Bhoite,
       Age 50 years.

2.     The Principal,
       Shri. S.S. Patil Arts,
       Shri. Bhausaheb T.T. Salunke Commerce,
       Shri. G.R. Pandit Science College,
       Jalgaon.
       Balasaheb Bhaskarrao Deshmukh,
       Age 52 years, Occu. Service,
       Resident of Jalgaon.                  ....Petitioner.

               Versus

1.     Bhagwat Murlidhar Patil,
       Age 45 years, Occu. Service,
       Residing at Badhe Complex,
       Varangaon, Taluka Bhusaval,
       District Jalgaon.

2.     The Registrar,
       North Maharashtra University,
       Jalgaon.

3.     The Joint Director,
       Higher Education (Grants),
       Jalgaon.                                    ....Respondents.

Mr. R.H. Mewara, Advocate for petitioners.
Mr. B.R. Warma, Advocate for respondent No. 1.
Mr. Y.B. Bolkar h/f. Mr. R.B. Raghuwanshi, Advocate for respondent
No. 2.
Mr. D.S. Jape/Ansingkar, AGP for respondent No. 3.




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                                                           WP No. 2231/05 & Anr.
                                          3




                                CORAM     :   T.V. NALAWADE AND
                                              SUNIL K. KOTWAL, JJ.

                                DATED :       JANUARY 19, 2018.

JUDGMENT : [PER T.V. NALAWADE, J.]

1)             Writ Petition No. 2231/2005 is filed by the employee of

respondent Nos. 1 and 2 to challenge the decision taken by

respondent No. 4 University which was communicated by letter

dated 21.7.2004. The University has refused to grant approval to the

appointment of petitioner as Lecturer in Botany in the college of

respondent Nos. 1 and 2. Further direction is claimed in the petition

against the respondent No. 4 to see that permanent approval in

favour of petitioner is granted as lecturer in Botany by holding that

the petitioner was appointed on open and clear post and not against

the reserved post. Prayer is made for quashing of the advertisement

published by the respondent No. 1 dated 5.12.1992 by which the

post which the petitioner was holding was again advertised. The

petition was filed on 15.9.2004 and submissions are made that post

was filled in accordance with the advertisement and it was for

reserved category.

2) Writ Petition No. 4146/2003 is filed by the management,

employer against the petitioner of the first proceeding Bhagwat Patil

and others to challenge the decision given by the Presiding Officer of

WP No. 2231/05 & Anr.

University and College Tribunal, Aurangabad in Appeal No. 17/2000.

By this decision, the Tribunal had set aside the order of termination

and has given direction to reinstate Bhagwat Patil on aforesaid post.

Direction was given to management to make proposal to the

University for approval to the appointment of Bhagwat Patil on the

post of Lecturer of Botany and direction was given to the University

to take the decision within prescribed time.

3) The submissions made show that after the decision of

the Tribunal, for some time the petitioner was allowed to work (for

one and half months) and when the University rejected the proposal

for giving approval to the appointment, he was again discontinued

and since then he did not turn up to resume the duty.

4) The submissions made and the record show that the

management has reserved some posts for teaching staff as per the

reservation policy of the Government and the Government had given

further direction in the year 1991 to see that 100% backlog is

cleared before making other appointments.

5) It is the contention of the management that the post on

which the appointment was given to Bhagwat Patil in the year 1992

was reserved for Scheduled Caste and applications were invited for

WP No. 2231/05 & Anr.

that post. Copy of the advertisement published by the management

is produced on record. It is not disputed that every time when the

petitioner was appointed on this post, the appointment was

approved only for the period of few months or one year by the

University. As per the statues of the University when appointment is

of temporary nature, the local committee, the committee constituted

by the management has the power to make such appointment. Only

when there is appointment on permanent post, the committee as

provided in statue which includes a nominee of the University takes

interview and makes the selection. The correspondence of the

Government and the University show that the Government had

prevented the management from making appointments against

reserved post of open candidates and procedure was given in G.R.

dated 5.12.1994. If the candidate from reserved category was not

available and the candidate from open candidate was to be

appointed, as per the procedure given, continuously for five years

advertisement was to be issued for filling the reserved post and after

that first attempt was to be made to see that candidate from other

reserved category was appointed and only after seven years, if

candidate of any reserved category had not become available, it was

open to the management to fill candidate from open category. Prior

to that, it was necessary to make proposal to Government

department and permission of the Government was necessary for

WP No. 2231/05 & Anr.

filling such posts. Admittedly, no such procedure was followed in the

present matter.

6) The decision given by the University and College Tribunal

shows that the Tribunal considered only eligibility conditions for the

post. The Tribunal admitted in para No. 15 that the post was

advertised for scheduled caste candidate, but the Tribunal held that

he was appointed duly by local selection committee and every time

he has faced interview for getting that post. It was also brought to

the notice of the Tribunal that no fresh advertisement was published

as per the aforesaid procedure given by the Government. The

Tribunal has observed that in view of the need of college if candidate

from reserved category is not available, present petitioner could

have been appointed even against the post which was meant for

reserved category.

7) The University is not expected to give approval to the

appointment when necessary procedure was not followed by the

management. Admittedly, the procedure was not followed by the

management for giving appointment to the petitioner which could

have been of temporary nature as post was made for reserved

category. The University would give approval to the appointment

only when the procedure is followed by the management. Thus, the

WP No. 2231/05 & Anr.

Tribunal has committed error in setting aside the order of

termination which followed due to the refusal of approval by

University. The submissions made show that subsequently candidate

from reserved category became available and such candidate came

to be appointed. Even the order of Tribunal could not have given

right to the petitioner to get appointment as against the permanent

post as there was no such direction. Thus, nothing survives in the

proceeding which is filed by the employee. For the same reasons,

the decision given by the Tribunal needs to be set aside.

8) The learned counsel for the petitioner placed reliance on

observations made by this Court in the case reported as 1992

(Supp. 2) Bom. C.R. 17 [Pramod Madhukarrao Padole & Anr.

Vs. Chancellor, Nagpur University & Ors.]. Those observations

were made with regard to the solitary, isolated post. It is observed

that the rule permits grouping of isolated posts only if they are

within the same department. In the case, this Court found that

employment notices were vitiated as the posts were shown to be

reserved when they could not have been reserved. The facts of the

reported case show that employment notice was issued in 1984. The

things changed after that due to aforesaid Government Resolutions

issued by the Government. The learned counsel for the petitioner

placed reliance on some observations made by this Court in Writ

WP No. 2231/05 & Anr.

Petition No. 3803/1998 [Rajendra Raghunath Attarde Vs.

Khandesh College Education Society Jalgaon and Ors.]

decided on 15.12.2008. Those facts were also different and the

advertisement was issued in the year 1989. In view of the facts of

the present matter, this Court holds that the observations made by

the learned Single Judge in the said decision can be of no use in the

present matter. Same can be said in respect of some observations

made by this Court in Writ Petition No. 2653/1996 [Rajani w/o.

Vishram Patil Vs. North Maharashtra University, Jalgaon and

Anr.] decided on 2.1.2.2004. In the case, duly constituted

selection committee had made the appointments and there was no

record to show that the appointments were made against reserved

posts. There was no record to show the posts of reserved category

was given to open category candidate. In view of the facts of the

case, decision was given in favour of the employee. Thus, these

observations are also of no use to the petitioner in the present

matter.

9) The learned counsel for the respondents placed reliance

on some observations made by this Court in the case reported as

2015 (1) Mh.L.J. 782 [Navjeevan Shikshan Sanstha, Bhishnur

and Anr. Vs. Chandrashekhar Anandraoji Rewatkar]. Though

the observations are with regard to the provisions of Maharashtra

WP No. 2231/05 & Anr.

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

1977 for making appointments, the procedure which is laid down for

making appointments in educational institutions need to be followed.

In the result, Writ Petition No. 2231/2005 stands dismissed. Writ

Petition No. 4146/2003 is allowed. The decision given by the Tribunal

is set aside. Civil applications, if any, are disposed of.

       [SUNIL K. KOTWAL, J.]              [T.V. NALAWADE, J.]




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