Iswar Ratan Chaudhari vs The President Social And Cultural ...
2025 Latest Caselaw 3640 Bom

Bombay High Court

Iswar Ratan Chaudhari vs The President Social And Cultural ... on 19 August, 2025

2025:BHC-AUG:22589
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                                                                   1941.2023WP+.odt

                          `IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     BENCH AT AURANGABAD

                                 WRIT PETITION NO. 1941 OF 2023

                     Vedchandra S/o Digambar Gawale
                     Age : 43 years, Occ : Nil,
                     R/o Neharu Nagar,
                     Uttarmukhi Maruti Mandir,
                     Deopur, Dhule, Tq. & Dist. Dhule.
                                                                 ..PETITIONER
                                 VERSUS

                     1.    Kaviyatri Bahinabai Chaudhari
                           North Maharashtra University,
                           Tq. & Dist. Jalgaon
                           Through its Registrar

                     2.    Joint Director of Higher Education,
                           Jalgaon Division, Jalgaon,
                           Tq. & Dist. Jalgaon.

                     3.    Social and Cultural Association,
                           Kusumbe, Tq. & Dist. Dhule
                           Dhule - 424 302
                           Through its Secretary

                     4.    Social and Cultural Association
                           Kusumbe, Tq. & Dist. Dhule
                           Shri Anil Mahadu Chaudhari
                           Through its President

                     5.    Social and Cultural Association
                           Kusumbe, Tq. & Dist. Dhule
                           Shri Suresh Mahadu Chaudhari
                           Through its President

                     6.    Smt. Narmadabai Nago Chaudhari Arts,
                           Commerce and Science College,
                           Kusumbe, Tq. & Dist. Dhule
                           Through its Principal.
                                                            ..RESPONDENTS
                                 2
                                                1941.2023WP+.odt

                          WITH
             WRIT PETITION NO. 12431 OF 2022

Ishwar S/o Ratan Chaudhari
Age : 52 years, Occ : Nil,
Kusumba, Tq. & Dist. Dhule.
                                              ..PETITIONER
             VERSUS

1.    The President,
      Social and Cultural Association,
      Kusumba, Tq. & Dist. Dhule.

2.    The Principal,
      Narmadabai Nago Chaudhari Arts,
      Commerce and Science College,
      Kusumbe, Tq. & Dist. Dhule

3.    The Registrar,
      North Maharashtra University,
      Jalgaon.

4.    Joint Director of Higher Education,
      Jalgaon Region, Jalgaon.
                                              ..RESPONDENTS
                               ...
Mr.R.I. Wakade, Advocate for the petitioner no. WP No. 1941/2023
Mr. S.N. Suryawanshi, Advocate for petitioner in WP
No.12431/2022
Mr. V.D. Hon, Senior Advocate i/b Mr. A.D. Khot, Advocate for
respondent no.1 in WP No.12431/2022.
Mr. P.N. Kutti, Advocate for Respondent No.3 in WP No.12431/2022
and Advocate for respondent no.1 in WP No.1941/2023.
Mr. V.D. Hon i/b Mr. A.V. Hon, Advocate for respondent no.3 in WP
No.1941/2023.
Mr. V.D. Hon i/b Mr. A.D. Khot, Advocate for respondent no.4 in WP
No.1941/2023.
Mr. V.J. Dhage & Mr. D.A. Karnik, Advocate for respondent nos.3
and 5 in WP No.1941/2023
Dr. Mrs. Kalpalata Patil Bharaswadkar, AGP for respondent/State.
                               ...
             CORAM             :       ROHIT W. JOSHI, J.
             RESERVED ON        :      4th AUGUST, 2025
             PRONOUNCED ON:            19th AUGUST, 2025
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                                             1941.2023WP+.odt


JUDGMENT :

The petitioner in Writ Petition No.1941/2023 was

appointed as Laboratory Attendant with respondent no.6 -

college run by respondent no.3 - trust. The services of the

petitioner came to be terminated vide order dated 09.02.2021

on the ground that his appointment was an illegal

appointment. The petitioner preferred Appeal challenging the

said termination order before the learned University and

College Tribunal, Aurangabad, being Appeal No.KBCNMU-

13/2021.

2. The petitioner in Writ Petition No.12431/2022

was also working on the post of Laboratory Attendant in

respondent no.6 - college. His services have also been

terminated vide order dated 09.02.2021 (date is wrongly

mentioned as 09.03.2021). The petitioner preferred Appeal

challenging the order of termination by filing Appeal

No.KBCNMU-2/2021.

3. At this stage, it will be pertinent to mention here

that there are two factions in the Management of respondent

1941.2023WP+.odt

no.3 - trust. Respondent Nos.4 and 5 in Writ Petition

No.1941/2023 claim to be President of respondent no.3 -

trust. Respective Change Reports filed by respondent nos.4

and 5 are pending adjudication before the authorities under

the Maharashtra Public Trust Act, 1950. Faction of respondent

no.4 has issued the impugned orders of termination. The

faction of respondent no.5 claims that the petitioners are

legally appointed employees of the college and that their

services have not been terminated.

4. Both these Appeals came to be dismissed by the

learned Presiding Officer, University and College Tribunal,

Aurangabad (hereinafter referred to as "the Tribunal", vide

common judgment and order dated 20.09.2022. The present

petitions are filed challenging the said judgment and order.

5. The petitioner in Writ Petition No.1941/2023 and

Writ Petition No.12431/2022 claim that they were appointed

on the post of Laboratory Attendant in respondent no.6 -

college on 17.09.2001 and 01.12.2001 respectively. It is the

their case that their services were confirmed with effect from

1941.2023WP+.odt

their date of initial appointment pursuant to the resolution

dated 28.07.2008 passed by the Management. The petitioners

thus claim that they were working as Laboratory Attendants as

regular and permanent employees.

6. One Chetan Ashok Chaudhari, who claims to be a

social worker, made a complaint dated 03.08.2020 to the Joint

Director of Higher Education stating that the appointment of

the petitioners on the post of Laboratory Attendants was made

illegally by ignoring the backlog of vacancies of candidates

belonging to scheduled caste and scheduled tribe category.

7. It is the case of respondent no.4 that pursuant to

the said complaint made by said Chetan Choudhari,

respondent no.3 had received letters from various authorities

including the Assistant Commissioner, Backward Cell, Joint

Registrar of Higher Education and the University. It is stated

that in view of the above, action was required to be taken and

on finding that the appointments of the petitioners were not

legal, the services were required to be terminated.

1941.2023WP+.odt

8. As stated above, both the petitioners have

preferred separate Appeals before the learned Tribunal. The

learned Tribunal has held that appointment of both the

petitioners made in the year 2001 was illegal, and therefore,

termination orders did not require any interference and the

petitioners were not entitled for reinstatement in service. The

learned Tribunal has held that proper advertisement in two

dailies, as required under the Standard Code was not issued,

the vacancies were not notified to the Employment Exchange

and District Social Welfare Officer and that the petitioners had

failed to produce record of the Institution to show that the

selection was made by a duly constituted Selection

Committee, as provided under Rule 4(ii)(c) of the Standard

Code. The learned Tribunal also observed that the

Management had issued orders dated 04.08.2008 in favour of

the petitioners with retrospective effect from the year 2001,

which is not permissible. It is also held that the posts of

Laboratory Attendant were sanctioned only on 17.10.2007. In

view of the above, the learned Tribunal has held that the

appointments of the petitioners were not legal and

accordingly, the appeals came to be dismissed.

1941.2023WP+.odt

9. Heard Mr. Ramesh Wakade, learned Advocate for

the petitioner in Writ Petition No.1941/2023 and Mr. S.N.

Suryawanshi, learned Advocate for the petitioner in Writ

Petition No.12431/2022. The learned Advocates contend that

the petitioners were appointed in service in the year 2001.

They have been confirmed in service as per resolution dated

28.07.2008 passed by respondent no.3. The learned Advocates

point out that at the relevant time, there was no dispute in the

society and respondent no.4 was Secretary of the Trust at the

relevant time when the resolution was passed. They further

submit that one Sharad Ramchandra Choudhari, who was

claiming to be appointed as Laboratory Attendant had filed

Appeal challenging the termination of his services, vide

termination order dated 01.10.2008 and in the said Appeal

the Management and College had filed reply stating that no

post of Laboratory Attendant was vacant in the college since

all the four posts were filled up. They point out from the reply

that their names were also mentioned as two of the four

Laboratory Attendants, who were working in the college. It is

contended that after a period of around 20 years from the

date of initial appointment, their services could not have been

terminated stating that the appointments were not legal. The

1941.2023WP+.odt

learned Advocates contend that they have been victimized in

view of the dispute between two factions in the Management.

They allege that the faction of respondent no.4 obtained a

communication from one Chetan Choudhari, who is rank

stranger and who has no concern whatsoever either with the

trust or college. They urge that the termination of services is

absolutely malafide and illegal. The learned Advocates place

reliance on the judgment of this Court in the matter of

Trimurti Balak Mandir Shikshan Sanstha, Aurangabad and

another Vs. Vithabai Bhikan Desale and others,

2017(1)Mh.L.J. 90, wherein this Court in paragraph 27 has

held as under :-

"27. In the judgment of the learned Full Bench in the case of Ramkrishna Chauhan (supra), it has been concluded that if the parties accept the terms and conditions stipulated in the appointment order, it would not be open for the employee to challenge the appointment order as being contrary to the rules or on the ground that the terms and conditions stipulated therein were not legally valid. This conclusion of the learned Full Bench cannot, in isolation, be made applicable to the employee alone. The law would have to be made applicable in given circumstances to both the litigating sides on the principle of equality. If the employee cannot question the terms and conditions of

1941.2023WP+.odt

appointment order once it has been accepted, the employer also needs to be precluded from questioning its own appointment order issued to the employee on the basis of which the employee, as in this given case, has worked for five and half years."

10. The learned Advocate for the petitioner also

placed reliance on the judgment in the matter of Hindi Vidya

Bhavan, Mumbai and others Vs. Presiding Officer, School

Tribunal, Mumbai and others, wherein this Court in paragraph

30 has held as under :-

"30. ..... As noticed earlier that the recruitment and conditions of the service of the employees in private schools are governed by the Act and the Rules and they must be adhere to while appointing members of the staff. The management cannot take advantage of its own wrong to contend that no procedure was followed or an appointment letter was issued and on that ground terminate a member of the staff, who was appointed on permanent post and was holding the required qualification."

11. The learned Advocates for the petitioners also

place reliance on the judgment in the matter of Balasaheb

Ramchandra Burke and others Vs. President, Bahujan Samaj

1941.2023WP+.odt

Prabodhan Shikshan Sanstha and others, 2016(3) Bom.C.R.

197.

12. Relying upon the aforesaid judgments, the

learned Advocate for the petitioner contends that it is not

open for the Management to contend that the appointment

order issued by it is illegal and terminate the services of the

employees on that ground.

13. As regards the findings recorded by the learned

Tribunal, the learned Advocates criticize the same stating that

the aforesaid legal principle that the Management cannot take

benefit of its own wrong and terminate services of the

employees on the ground that appointment order issued by

the Management itself is illegal, is not permissible. They

further state that when a person has worked for around 20

years in an Institution, it must be assumed that the

appointment is an legal and valid appointment made after

following due process. They further contend that respondent

no.6 - college is admitted to grant-in-aid and since then their

salaries were paid by the Government, which also gives rise to

1941.2023WP+.odt

assumption that the appointments were legal. As regards the

observations by the learned Tribunal that post of Laboratory

Attendant was sanctioned in the year 2007, and therefore,

appointments could not have been made in the year 2001, it is

contended that the college was admittedly functioning prior to

the year 2007. It is submitted that the college was admitted to

grant-in-aid somewhere around the year 2007 when the

staffing pattern was approved by the concerned authorities. It

is their contention that since the college was functioning prior

to the year 2007, it is obvious that the posts of Laboratory

Attendants were available and the same also required to be

filled up for smooth working of Laboratories.

14. Per contra, Mr. Hon, learned Senior Advocate for

respondent no.4 contends that the learned Tribunal has rightly

held that the burden of proving that the appointment was

legal and valid is on the employee and both the employees

had failed to discharge the said burden. Mr. Hon draws

attention to the findings recorded by the learned Tribunal that

during the selection process allegedly undertaken while

granting appointments to the petitioners, advertisement was

issued in innocuous news paper named, "Murder". He further

1941.2023WP+.odt

contends that the notice period was also not in accordance

with the provisions of Standard Code, and therefore, the

learned Tribunal has rightly held that the appointment of the

petitioners is not legal and valid and that the petitioners have

secured employment through backdoor entry.

15. As against this, the learned Advocate for

respondent nos.3 and 5 contends that the appointments were

legal, and therefore, continued for a period of around 20

years. He states that the faction of the Management, which is

at the helm of the affairs, had never terminated services of the

petitioners. He states that the petitioners are victimized only

because of dispute between two factions in the Management.

To support his contention that the faction of respondent no.4

is not in charge of the affairs of the trust and the college, the

learned Advocate draws attention to order dated 01.09.2012

passed by the learned Civil Court on an application at

Exhibit-5 in Regular Civil Suit No.541/2012, whereby the

learned Trial Court had granted stay to the resolution dated

16.07.2012 passed by the faction of respondent no.4 by which

respondent no.5 and members in his faction were sought to be

expelled from the trust.

1941.2023WP+.odt

16. Having heard the rival submissions as aforesaid, it

is clear that there is no dispute with respect to the fact that

the petitioners are working with respondent no.6 - college

since the year 2001. Respondent No.3 - Trust has also passed

resolution regarding confirmation of services of the

petitioners. It is also not in dispute that in litigation pertaining

to termination of service of one of the Laboratory Attendant,

respondent no.3 had taken a specific stand that all the posts of

Laboratory Attendants were filled up and there existed no

vacancy. In this regard, in the reply filed before the learned

Tribunal in the said appeal, it was stated that that both the

petitioners were working on the post of Laboratory Attendant.

It is also not in dispute that respondent no.6 - college is

admitted to grant-in-aid and salaries of the petitioners were

also being paid by the Government.

17. The learned Tribunal has held that appointments

of the petitioners are not legal, and therefore, they are not

entitled to reinstatement in service. The judgment by the

learned Tribunal cannot be sustained in view of law laid down

by this Court in the aforesaid three judgments in the matters

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of Trimurti Balak Mandir Shikshan Sanstha, Hindi Vidya

Bhavan, and Balasaheb Ramchandra Burke (supra). In the

matter of Trimurti Balak Mandir (supra), this Court has held

that just as the terms of appointment orders are binding on

the employees, the same will also be binding on the

Management. It is held that the Management needs to be

precluded from questioning legality of the appointment order

issued by it to the employee. It is held that if such a latitude is

given to the Management, it would amount to giving free

hand to the Management to perpetuate illegality and commit

fraud. Similarly, in the matter of Balasaheb Burke (supra), it

is held that once the Management has appointed employees

and the said employees have rendered service for years

together, they cannot be driven out by merely stating that the

appointments were not legal. It is held that the Management

will be estopped from taking such stand. It is also held that

the case of employees in the said petition was covered by

paragraph 44 of the judgment of the Hon'ble Supreme Court

in the matter of Secretary, State of Karnataka and others Vs.

Umadevi and others, AIR 2006 SC 1806. The said observations

are made in the light of the fact that the employees in the said

case have to be in more than 10 years of non-litigious service.

1941.2023WP+.odt

In the matter of Hindi Vidya Bhavan (supra) also similar view

is taken that the Management cannot take advantage of its

own wrong to contend that the procedure prescribed for

regular appointment was not followed while issuing

appointment order in favour of its employee and terminate

services of a permanent employee on that ground. In view of

the aforesaid three judgments, the judgment of the learned

Tribunal cannot be sustained. The learned Tribunal has failed

to appreciate that the petitioners were appointed in service in

the year 2001 and were working on the post of Laboratory

Attendants, which is class-IV post for a period of around 20

years when abruptly their services came to be terminated.

Mode and manner in which the termination is effected is also

very high handed.

18. The learned Tribunal should have appreciated the

fact that the petitioners were continued in employment for a

period of around 20 years by itself will give rise to

presumption that the appointments were validly made. The

fact that the appointments were approved and salaries were

paid through government grants further strengthen this

presumption. Assuming that the appointments were not legal,

1941.2023WP+.odt

yet benefit of more than 10 years of non-litigious employment

ought to have been granted by the learned Tribunal as is held

by the Constitution Bench judgment of the Hon'ble Supreme

Court in the matter of Umadevi (supra).

19. In view of the above, in the considered opinion of

this Court the judgment passed by the learned Tribunal cannot

withstand the scrutiny of law and is liable to be quashed.

20. The petitioner in Writ Petition No.1941/2023 has

consistently stated that he was not gainfully employed

elsewhere since the date of termination of his services. It is

held in the case of Deepali Gundu Surwase Vs. Kranti Junior

Adhyapak Mahavidyalaya (D. Ed.) and others , (2013) 10 SCC

324 that whenever the services of an employee are

terminated and the same is set aside on a judicial

determination, the employee will be entitled to back wages as

a matter of course. It is held that the burden of proving that

employee was gainfully employed elsewhere will be on the

employer. However, the judgment holds that the employee will

have to discharge initial burden, which can be discharged by

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making a statement that the employee was not even fully

employed elsewhere since the date of termination. In the

present matters, the petitioner in Writ Petition No.1941/2023

has made such statement and has thus discharged the initial

burden as laid down in the matter of Deepali Gundu Surwase

(supra). The Respondent - Management has not brought any

material to the contrary. The petitioner in Writ Petition

No.1941/2023 will, therefore, be entitled for full back wages.

However, the petitioner in Writ Petition No.12431/2022 has

not made such statement and has thus failed to discharge

initial burden of not being gainfully employed elsewhere. He

is therefore not entitled to relief of back wages.

21. In view of the above, the following order is

passed :-

ORDER

(i) Writ Petitions are allowed.

(ii) The judgment and order dated 20.09.2022 passed

by the learned University and College Tribunal, Aurangabad in

Appeal No.KBCNMU-13/2021 and Appeal No.KBCNMU-

2/2021 are quashed and set aside.