Suman Kishanrao Shinde vs The Director Higher Education ...
2021 Latest Caselaw 7634 Bom

                                                    Writ Petition No.3106/2018
                                      :: 1 ::



           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                      WRIT PETITION NO.3106 OF 2018



 Suman Kishanrao Shinde                               ... PETITIONER

          VERSUS

 The Director, Higher Education,
 Maharashtra State, Pune & ors.                      ... RESPONDENTS

                                .......
 Shri   Pradeep Deshmukh, Advocate holding for
 Shri   Yogesh p. Deshmukh, Advocate for petitioner
 Shri   S.N. Morampalle, A.G.P. for respondents No.1 & 2
 Shri   A.V. Hon, Advocate for respondent No.4.
 Shri   A.D. Aghav, Advocate for respondent No.5
                                .......

                                  CORAM :       R. G. AVACHAT, J.

                  Date of reserving order : 4th March, 2021
                  Date of pronouncing order : 10th June, 2021


 ORDER:

The challenge in this Writ Petition is to the

judgment and order dated 10/10/2017, passed by Presiding

Officer, University and College Tribunal, Aurangabad (for

short, Tribunal) in Appeal, No.SRTMU-1/2012. By the

impugned order, the appeal preferred by the petitioner against

the order of her oral termination from service as a Lecturer

and for grant of back wages came to be dismissed. The

Writ Petition No.3106/2018 :: 2 ::

petitioner is, therefore, before this Court in this Writ Petition.

2. Heard. Shri Pradeep Deshmukh, learned counsel

appearing for the petitioner would submit that the Tribunal

simply reproduced the averments of the appeal memo and the

affidavit filed in support thereof by the petitioner. Similarly, it

reproduced the contents of the affidavits filed by respondents

No.4 and 6 in reply to the contentions raised by the petitioner

in her appeal. The Tribunal did not appreciate the documents

filed in support of the claim of the petitioner. The Tribunal

was expected to give a finding of fact on appreciation of the

evidence in the appeal. It has dismissed the appeal on

technical grounds. In view of the Tribunal, the petitioner did

not give the exact date of her oral termination nor is there

any evidence to show the petitioner to have been in service

post 2004 to the date of her alleged termination. According

to learned counsel, the respondent No.4, in 2009, forwarded

the proposal for dereserving the post held by the petitioner.

The same indicates the petitioner to have been in service as

against the claim of respondents No.4 and 6 that she has not

been in service since 2004. The learned counsel urged for

setting aside the order and remand of the matter with a

direction to the Tribunal to decide it afresh.

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3. Shri A.V. Hon, learned counsel for respondent No.4

would, on the other hand, submit that the petitioner has not

been in service post 2004. She did not qualify NET/ SET. The

petitioner is thus not eligible for appointment to the post of

Lecturer in a Senior College. According to Shri Hon, the

petitioner was serving on Clock Hour Basis (COB) and she had

been paid all the remuneration due to her. According to the

learned counsel, no interference is called for with the

impugned order.

The learned A.G.P. supported the impugned order.

4. The petitioner claimed to have been Master in

Philosophy (M.Phil.) and Ph.D. Admittedly, the petitioner was

appointed on 10/12/1999 in respondent No.4 College as a

Lecturer in Public Administration pursuant to the

advertisement dated 31/10/1999. The post against which the

petitioner was appointed, was reserved for O.B.C. Women

category. Since no candidate from the said category was

available, the petitioner was given the appointment. She

joined the service on 10/1/2000. The advertisement,

pursuant to which the petitioner was appointed, was the third

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advertisement published for the said post. For the next two

years namely 2000-2001 and 2001-2002 also, the petitioner

came to be appointed on the said post. Even for the

academic year 2002-2003, an advertisement was published

for filling up the said post. Since no candidate of the

concerned category was available, the petitioner was given

the appointment. There is a Government Resolution (G.R.)

dated 5/12/1994 prescribing the procedure for dereservation

of the post in case a candidate of the category for which the

post was reserved was not available for continuous period of

six years in spite of issuance of advertisement for filling up

such posts each year. There were two posts of Lecturer in the

subject of Public Administration, one held by the petitioner

and the other was reserved for Scheduled Caste candidate.

One Mallikarjun Karajgi was serving on the post reserved for

S.C. Since no S.C. candidate was available for six years in

spite of the procedure for filling up the said post was

undertaken by publication of the advertisement every year,

the proposal for dereservation of the posts held by the

petitioner and Mallikarjun Karajgi was forwarded. As it was a

joint proposal, the authorities concerned directed the

respondent No.4 College to submit two separate proposals.

The proposal regarding dereservation of the post held by the

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petitioner had, however, not been submitted until May 2009.

5. The petitioner filed Writ Petition (W.P.

No.158/2011) challenging the decision rejecting the proposal

of dereservation of the post held by her. The Writ Petition was

allowed on 4/7/2012 with a direction to the Director of

Education to take a decision afresh after extending

opportunity of hearing to the petitioner and the respondents

therein.

6. The question regarding dereservation of the post

held by the petitioner is not a matter in issue in this petition

nor was it a subject in appeal before the Tribunal. The

question is whether the services of the petitioner have been

orally terminated immediately after the decision dated

4/7/2012 in Writ Petition No.158/2011.

7. I have perused the impugned judgment. It is true

that the Tribunal has adverted to and reproduced as well all

the contentions raised by the parties to the appeal. The

Tribunal, however, found the petitioner to have not produced

any evidence in support of her claim of having been in service

with the respondent No.4 College until alleged termination of

her services. The Tribunal also found the petitioner to have

Writ Petition No.3106/2018 :: 6 ::

not given the exact date of termination of service so as to

constitute a cause of action to the appeal. True, the petitioner

has averred in the appeal memo that her services were

terminated soon after the decision in Writ Petition

No.158/2011 was given on 4/7/2012.

8. I would have considered the prayer for remand of

the matter had there been a shred of evidence indicating the

petitioner to have in fact been in service with the respondent

No.4 post 2005 till the date of alleged termination of her

service. True, the respondent No.4 had forwarded the

proposal in 2009 for dereservation of the post held by the

petitioner. The same, however, cannot be termed to be

admission on the part of respondent No.4 as to the petitioner

having been in service till then. On the record of this petition,

there are documents indicating the petitioner to have been in

service until 2004 and not thereafter. According to the

petitioner, she has not been paid salary since 2003 to 2013.

Her claim appears to be unpalatable. There is no evidence to

indicate the petitioner to have ever raised any grievance

before the College authorities or in Courts of law, asking for

payment of unpaid salary. It appears that, on the day or a

few days before or after the decision in Writ Petition

No.158/2011 was given, the petitioner filed the appeal before

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the Tribunal.

9. It is reiterated that, there is no material on record

to infer the petitioner to have in fact been continued in service

post 2004-2005 until 2010-2013. The petitioner was said to

be serving on CHB. It is a specific case of the respondent

No.4 that due to 5th Pay Commission recommendations, the

workload of the post of Lecturer in the subject of Public

Administration was reduced to 28 hours. As per the said

workload, there was one permanent post and the other was

on CHB. It is reiterated that since the petitioner has not

produced on record any material indicating her to have been

in service with the respondent No.4 post 2004 as a Full Time

Lecturer in the subject of Public Administration, the Tribunal

has rightly negatived her claim and dismissed the appeal.

10. I do not find any reason to interfere with the

impugned judgment and order. The Writ Petition, therefore,

fails and is thus dismissed.

( R. G. AVACHAT ) JUDGE

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