Chitra Ananat Salunke vs The State Of Maharashtra And 6 ...
2021 Latest Caselaw 15194 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             ORDINARY ORIGINAL CIVIL JURISDICTION

                    WRIT PETITION NO. 1202 OF 2017

Chitra Anant Salunke                                           ... Petitioner
       Versus
The State of Maharashtra and Ors.                              ... Respondents

                                   ******
Mr. Atul G. Damle, Senior Advocate a/w Mr. Sahil Mahajan for the Petitioner.
Mr. Kedar Dighe, Asst. Government Pleader for the State-Respondent Nos. 1, 2, 6
and 7.
Mr. Rui A. Rodrigues for the Respondent No.5.
                                   ******
                              CORAM: R. D. DHANUKA AND
                                     ABHAY AHUJA, JJ.

RESERVED ON : 1st OCTOBER, 2021 PRONOUNCED ON : 22nd OCTOBER, 2021

JUDGEMENT (Per R.D. Dhanuka, J.) :-

. By this petition filed under Article 226 of the Constitution of India,

the petitioner seeks a writ of certiorari for passing and setting aside the

impugned order dated 25th November, 2016 and seeks order and directions

against the respondents to pay an amount of Rs.27,46,079/- as arrears of

salary and back wages with interest.

2. Some of the relevant facts for the purpose of deciding this petition are

as follows :-

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3. The petitioner is a practicing Lawyer and was erstwhile Vice-

Principal of the Siddharth College of Law. The petitioner passed LLM from

the Mumbai University in the year 2002 with 57% marks and was appointed

as Full Time Lecturer in the subject of Law w.e.f. 14 th January, 2003 during

the period between 13th January, 2003 and 21st March, 2003. In the year

2003, the petitioner appeared for NET/SET examination and cleared the

said examination.

4. It is the case of the petitioner that on 5 th March, 2004, the respondent

no.5-University issued a circular that the candidate from reserved category

without NET/SET may also apply for the post of lecturer and if they are

selected they will be appointed on consolidated salary of Rs.8,000/- on

contractual basis. They have to complete NET/SET within two years,

failing which their services would be terminated and if they complete NET/

SET within two years, their appointment will be regularized on regular

basis.

5. It is the case of the petitioner that on 15th April, 2004, the respondent

no.4 informed the Vice Chancellor of University of Mumbai that the

appointment of the petitioner was confirmed as per the Government bdp

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Circulars and no further procedure was required for regularization of her

services.

6. On 25th April, 2006, the petitioner informed the Vice Chancellor of

the University of Mumbai that she had received a interview call from the

Principal of Siddharth College of Law on 25th April, 2006 for the post of full

time lecturer in the said college. It is the case of the petitioner that the

University of Mumbai informed the Principal of Siddharth College of Law

that it would not be proper to call the petitioner for interview for the post of

lecturer. The petitioner made a complaint to the respondent no.6 on 25th

April, 2006 that though the petitioner had cleared NET Examination in 2003

was not getting the salary as per UGC Scale. The respondent no.6 informed

the respondent no.3 to pay the salary to the petitioner as per UGC Scale.

7. The Registrar of Mumbai University addressed a letter to the Member

Secretary and Chairman of People's Education Society to conduct an

inquiry under the Statute 439B(1) against the petitioner and appointed a

retired City Civil Court Judge as Inquiry Officer. The said Siddharth

College of Law terminated the services of the petitioner. The petitioner

filed an Appeal bearing Appeal No. 11 of 2009 before the University and bdp

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College Tribunal. The said appeal came to be dismissed by the said

Tribunal on 20th January, 2010. A learned Single Judge of this Court

dismissed the Writ Petition bearing No. 2060 of 2010 filed by the petitioner

impugning the said order passed by the University and College Tribunal. A

Division Bench of this Court by order dated 18 th December, 2012 in Appeal

(lodging) No. 91 of 2011 was pleased to quash and set aside the order

passed by the leaned Single Judge and the University and College Tribunal

and directed the Management to reinstate the petitioner with full back

wages.

8. The said Siddharth College of Law filed Special Leave Petition

before the Hon'ble Supreme Court. By an order dated 26 th March, 2014, the

Hon'ble Supreme Court disposed of the Special Leave Petition (Civil) No.

1480 of 2013 in terms of consent terms filed by the petitioner and the said

Siddharth College of Law. In accordance with the said consent terms, the

said Siddharth College of Law reinstated the services of the petitioner as

full time teacher (Vice-Principal) of the said college on 28th March, 2014.

The petitioner resumed on duty in the said college. On 6 th May, 2014 the

petitioner tendered her resignation letter dated 31st March, 2014 to the

respondent no.4 in accordance with the said consent terms. The said bdp

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resignation was accepted by the respondent no.4. By its letter the

respondent no.4 put up the claim of the petitioner before the respondent

no.6. The respondent no.4 submitted all the documents on 16th July, 2014 as

required by the respondent no6. The petitioner by her letter dated 18 th

August, 2014 called upon the respondent no.6 to pay the arrears of the

salary and back wages of the petitioner at the earliest. The petitioner

requested the respondent no.6 to pay an amount of Rs.27,36,462/- by letter

dated 11th September, 2014.

9. It is the case of the petitioner that instead of paying the said amount,

the respondent no.6 once again called for the documents from the

respondent no.4 vide letter dated 22nd September, 2014. The respondent

no.4 submitted all the documents on 18 th October, 2014. The respondent

no.7 informed the State Government on 31st December, 2014 and asked for

approval to pay an amount of Rs.27,46,079/- to the petitioner as per Grant.

The petitioner filed the Writ Petition bearing No. 1419 of 2015 in this Court

for various reliefs. On 27th September, 2016, this Court disposed of the said

writ petition and directed the respondent no.2 to consider and take

appropriate decision on the pending proposal in regard to the claim made by

the petitioner without being influenced by the stand taken in the reply in the bdp

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said writ petition. By an order dated 25 th November, 2016, the respondent

no.2 rejected the claim of the petitioner on various grounds and held that the

State Government was not liable to pay any salary and other allowances to

the petitioner. Being aggrieved by the said decision, petitioner filed this

writ petition.

10. Mr. Damle, learned senior counsel for the petitioner invited our

attention to the letter of appointment dated 14th January, 2013 from the

respondent nos. 3 and 4 appointing the petitioner as a full time lecturer in

the subject of law in Siddharth College of Law for a period of two years. He

submits that the said appointment was a regular appointment on the

permanent post. He invited our attention to the circular issued on 30 th April,

2003 by the University of Mumbai that if the teacher is working on full time

basis i.e. more than 12 periods, he/she had to be given salary as full time

lecturer instead of clock hour basis. He submits that the petitioner had

completed NET/SET examination in the year 2003. He invited our attention

to various orders referred in earlier paragraphs of this judgment.

11. Learned senior counsel submits that under the said consent terms, the

respondent nos.3 and 4 agreed to submit bills for arrears of salaries and bdp

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other legitimate dues inclusive of salaries payable to the petitioner, to the

Joint Director, Higher and Technical Education, Mumbai Division,

Government of Maharashtra. The petitioner agreed to tender her resignation

within a period of two days from the date of the order passed by the Hon'ble

Supreme Court by taking consent terms on record. The petitioner rendered

an undertaking to the Hon'ble Supreme Court that she will not claim any

further right to continue in service in Siddharth College of Law, Mumbai.

Both the parties agreed to withdraw all civil and criminal proceedings filed

against each other within one week from the date of the said order.

12. It is submitted by the learned senior counsel that since the petitioner

was reinstated in service pursuant to the said order passed by the Hon'ble

Supreme Court, the State Government could not have refused to pay the

dues of the petitioner. He invited our attention to the impugned order dated

25th November, 2016 passed by the State Government and would submit

that the said order is totally erroneous. He submitted that each and every

reason recorded by the State Government in the said impugned order is

based on the wrong factual premise. He submits that the State Government

had never raised the issue of appointment of the petitioner before this Court.

The petitioner is thus entitled to recover the amount of Rs.27,46,079/- with bdp

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interest.

13. Mr. Dighe, learned A.G.P. for the State Government invited our

attention to the averments made by the respondent no.6 in the affidavit in

reply filed before this Court affirmed on 27 th July, 2018 and would submit

that admittedly the State Government was not a party to the consent terms

filed before the Hon'ble Supreme Court. He submits that the said consent

terms were filed between the petitioner and the respondent nos. 3 and 4 and

thus the said consent terms are not binding. He submits that the petitioner

was appointed by the management without obtaining requisite approval and

thus the State Government is not liable to pay any dues allegedly payable to

the petitioner.

14. It is submitted that the University also in its letter had clearly stated

that mandatory procedure was not followed when the petitioner was

appointed to the said post of lecturer. The appointment of the petitioner was

made on year to year basis. There was no approval from Mumbai

University to her appointment since the academic year 2006. He invited our

attention to the letter dated 29th September, 2015 from the University of

Mumbai to the Deputy Secretary, Government of Maharashtra, Higher and bdp

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Technical Education Department and would submit that by the said letter

the University of Mumbai had clearly informed the State of Maharashtra

that the University had approved the appointment of the petitioner made by

the College as a lecturer (law) on Clock Hour Basis for the academic year

2003-2004 and on temporary on year to year basis for the academic year

2004-2005 and 2005-2006. The said post was not filled as per prescribed

rules. The University has not given any kind of approval as a lecturer (law)

after 2005-2006.

15. Mr. Rodrigues, learned counsel for the University invited our

attention to the averments made by the University in its affidavit in reply

dated 3rd August, 2018. It is submitted that the respondent no.3 had

forwarded a Local Selection Committee Report vide letters dated 5 th July,

2004, 28th February, 2006 and 5th April, 2006 for the academic years 2004-

2005, 2005-2006 and 2003-2004 respectively, for approval of the

appointment of the petitioner on Clock Hour Basis on the basis of

temporary appointment. He submits that the appointment of the petitioner

was accordingly approved for the post of lecturer in law on Clock Hour

Basis and full time on temporary basis for the academic years 2004-2005,

2005-2006 and 2003-2004 and communicated to the respondent no.3 vide bdp

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letters dated 3rd February, 2006, 23rd June, 2006 and 23rd June, 2006

respectively.

16. It is submitted by the learned counsel that the respondent nos. 3 and 4

had not followed the regular selection procedure to fill up the post of

lecturer in law in the college by publishing the University approved

advertisement so as to inter alia meet the Government NOC requirements.

He strongly placed reliance on the Statute 417 prescribing the manner and

mode of selection of appointment of teacher in college and would submit

that the said mandatory procedure was not at all followed by the respondent

nos. 3 and 4 while appointing the petitioner on the said post in the said law

college.

17. Mr. Damle, learned senior counsel for the petitioner in his rejoinder

argument submits that the respondent nos.3 and 4 vide their letter dated 15 th

April, 2006 to the University of Mumbai had recommended that the

appointment of the petitioner on probation be approved. There was no reply

sent by the Mumbai University to the said letter dated 15 th April, 2006. The

appointment of the petitioner was thus deemed to have been approved.

18. Learned senior counsel also invited our attention to the letter dated bdp

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24th April, 2006 from the Deputy Secretary, Government of Maharashtra to

the respondent no.3 in response to the representation made by the petitioner

stating that the probation period granted to the petitioner as a lecturer was

over and thus it was necessary to appoint her on permanent basis after

completion of the probationary period. He submits that there was no

response to the said letter addressed by the Deputy Secretary, Government

of Maharashtra to the respondent nos. 3 and 4. Learned senior counsel

invited our attention to the letter dated 18th December, 2003 from the

Deputy Director, Education, Mumbai to fill up the backlog of the backward

class by direct recruitment as per the direction of the State Government.

The candidates were called for 'walk in interview'.

REASONS AND CONCLUSIONS

19. Admittedly the services of the petitioner were terminated by the

respondent nos. 3 and 4. The proceedings between the petitioner and the

respondent nos.3 and 4 reached the Hon'ble Supreme Court by Special

Leave Petition filed by the respondent nos.3 and 4 against the judgment

delivered by the Division Bench of this Court allowing appeal filed by the

petitioner against the order of the learned Single Judge. The petitioner and bdp

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the respondent nos.3 and 4 filed consent terms before the Hon'ble Supreme

Court. Under the said consent terms, the petitioner was reinstated by the

respondent nos. 3 and 4 in Siddharth College of Law within one week from

the date of the said consent terms. The petitioner had agreed to tender her

resignation within two days from the date of the order passed by the

Hon'ble Supreme Court. The petitioner also undertook not to claim any

dues of her arrears of the salaries from the respondent nos. 3 and 4.

20. In clause (2) of the said consent terms, the petitioner and the

respondent nos. 3 and 4 agreed that the dues or arrears of salaries were

payable by the learned Joint Director, Higher and Technical Education,

Mumbai Division, Government of Maharashtra as per the prevailing rules

applicable in the case of the petitioner. Admittedly, the Joint Director,

Higher and Technical Education or the State of Maharashtra were not the

parties to the said consent terms arrived at before the Hon'ble Supreme

Court. Merely because the petitioner undertook before the Hon'ble

Supreme Court not to claim any dues or her arrears of salaries from the

respondent nos.3 and 4 herein on the ground that the same were payable by

the Joint Director, Higher and Technical Education, the liability cannot be

foisted upon the State Government by entering into such consent terms. bdp

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21. The State Government has passed a reasoned order rejecting the bills

submitted by the respondent nos. 3 and 4 for releasing the payment in

favour of the petitioner. The order passed by the Hon'ble Supreme Court

was based on the consent terms and not by adjudication on merits. There

was no finding in favour of the petitioner that the appointment of the

petitioner was made as per procedure prescribed under Statute 417 framed

by the University of Mumbai applicable to the appointment of the teachers.

22. A perusal of the said Statute 417 clearly indicates that there shall be a

selection committee for making recommendation to the Government body

for the appointment of the teachers in the college comprising of various

members. Statute 417(II) provides for the procedure for making such

appointment of the teachers in a college. Statute 418 provides for the

procedure for appointment of probation and confirmation. Learned senior

counsel for the petitioner could not demonstrate whether any such

mandatory procedure under Statutes 417 and 418 was followed while

appointing the petitioner on probation on the post of a lecturer in Siddharth

Law College, Mumbai. On the contrary, the record produced by the

University of Mumbai including the letter dated 29th September, 2015 bdp

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addressed by the University of Mumbai to the Deputy Secretary,

Government of Maharashtra would clearly indicate that the appointment of

the petitioner as a lecturer was approved on Clock Hour Basis for the

academic year 2003-2004 and on temporary year to year basis for the

academic year 2004-2005 and 2005-2006. The said post was not filled as

per the prescribed rules.

23. The University had not given any kind of approval to the petitioner as

a lecturer after 2005-2006. The petitioner did not challenge the approval

granted by the University to the petitioner as a lecturer on Clock Hour Basis

on the academic year 2003-2004 and on temporary year to year basis for the

academic year 2004-2005 and 2005-2006 contending that the appointment

of the petitioner was on probation on the permanent post after following the

mandatory procedure under Statute 417.

24. It is clear that after approval of such Clock Hour Basis or on

temporary appointment of year to year basis for three years, the respondent

nos. 3 and 4 once again applied for approval to the University of Mumabi

vide letter dated 15th April, 2006 for the academic years 2003-2004, 2004-

2005 and 2005-2006 without challenging the earlier approval granted by the bdp

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University of Mumbai on Clock Hour Basis on temporary appointment on

year to year basis. There is no substance in the submission made by the

learned senior counsel that since there was no response to the said letter

dated 15th April, 2006 from the respondent nos. 3 and 4 to the University of

Mumbai seeking approval for the academic years 2003-2004, 2004-2005

and 2005-2006, there was deemed approval from the University of Mumbai.

25. In our view, the impugned order passed by the respondent no.2

rejecting the bill submitted by the respondent nos. 3 and 4 is well reasoned

order. The appointment of the petitioner was not made on the said post of

lecturer after following the requisite procedure under Statute 417 framed by

the University of Mumbai. We do not find any infirmity in the said

reasoned order passed by the respondent no.2.

26. Writ petition is devoid of merit and is accordingly dismissed. There

shall be no order as to costs.

      [ABHAY AHUJA, J.]                           [R. D. DHANUKA, J.]

           Digitally signed
           by BIPIN
BIPIN      DHARMENDER
DHARMENDER PRITHIANI
PRITHIANI  Date:
           2021.10.22
           11:37:47 +0530