IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE WRIT PETITION NO. 4459 OF 1994 WRIT PETITION NO. 4459 OF 1994 WRIT PETITION NO. 4459 OF 1994 NASHIK DISTRICT MARATHA VIDYA NASHIK DISTRICT MARATHA VIDYA NASHIK DISTRICT MARATHA VIDYA PRASAERAK SAMAJ ... PETITIONER. PRASAERAK SAMAJ ... PETITIONER. PRASAERAK SAMAJ ... PETITIONER. VS. VS. VS. SHRI BHASKAR DAULAT BHAMARE ... RESPONDENT. SHRI BHASKAR DAULAT BHAMARE ... RESPONDENT. SHRI BHASKAR DAULAT BHAMARE ... RESPONDENT. MR. K.Y.MAHADIK FOR THE PETITIONER. MR. K.Y.MAHADIK FOR THE PETITIONER. MR. K.Y.MAHADIK FOR THE PETITIONER. MR. MIHIR DESAI FOR THE RESPONDENT. MR. MIHIR DESAI FOR THE RESPONDENT. MR. MIHIR DESAI FOR THE RESPONDENT. ..... CORAM : A.P. DESHPANDE, J. CORAM : A.P. DESHPANDE, J. CORAM : A.P. DESHPANDE, J. DATE : January 10, 2007. DATE : January 10, 2007. DATE : January 10, 2007. ..... : O R A L J U D G M E N T : : O R A L J U D G M E N T : : O R A L J U D G M E N T : 1. Heard. 1. Heard. 1. Heard. 2. This petition is filed by the Petitioner- 2. This petition is filed by the Petitioner- 2. This petition is filed by the Petitioner- Institution questioning the legality and validity of Institution questioning the legality and validity of Institution questioning the legality and validity of the judgment and Order passed by the Presiding Officer the judgment and Order passed by the Presiding Officer the judgment and Order passed by the Presiding Officer of University and College Tribunal, allowing the appeal of University and College Tribunal, allowing the appeal of University and College Tribunal, allowing the appeal filed by the respondent. filed by the respondent. filed by the respondent. 3. Few facts which are material for deciding the . Few facts which are material for deciding the . Few facts which are material for deciding the question in issue are narrated herein below :- question in issue are narrated herein below :- question in issue are narrated herein below :- (a) The Respondent was initially appointed as (a) The Respondent was initially appointed as (a) The Respondent was initially appointed as Assistant Teacher in September, 1979 in a Assistant Teacher in September, 1979 in a Assistant Teacher in September, 1979 in a junior college, administered and managed by the junior college, administered and managed by the junior college, administered and managed by the Petitioner. It will not be out of place to Petitioner. It will not be out of place to Petitioner. It will not be out of place to state that the service conditions of the state that the service conditions of the state that the service conditions of the employees working in junior college are employees working in junior college are employees working in junior college are governed by the Maharashtra Employees of governed by the Maharashtra Employees of governed by the Maharashtra Employees of Private School ( Condition of Service) Private School ( Condition of Service) Private School ( Condition of Service) Regulation Act,1977 Act and Rules made Regulation Act,1977 Act and Rules made Regulation Act,1977 Act and Rules made thereunder ; thereunder ; thereunder ; (b) In the year 1987, a vacancy arose in the (b) In the year 1987, a vacancy arose in the (b) In the year 1987, a vacancy arose in the Senior College of the Petitioner for the Senior College of the Petitioner for the Senior College of the Petitioner for the subject, which the petitioner was teaching subject, which the petitioner was teaching subject, which the petitioner was teaching and and and the petitioner being desirous of seeking the petitioner being desirous of seeking the petitioner being desirous of seeking appointment in the senior college, applied for appointment in the senior college, applied for appointment in the senior college, applied for the post of lecturer in senior college. It is the post of lecturer in senior college. It is the post of lecturer in senior college. It is the case of the petitioner that the local the case of the petitioner that the local the case of the petitioner that the local Managing Committee conducted the interviews and Managing Committee conducted the interviews and Managing Committee conducted the interviews and the petitioner came to be temporarily appointed the petitioner came to be temporarily appointed the petitioner came to be temporarily appointed for a period of one year. for a period of one year. for a period of one year. 4. Perusal of the appointment order clearly . Perusal of the appointment order clearly . Perusal of the appointment order clearly reveals that the respondent was appointed under an reveals that the respondent was appointed under an reveals that the respondent was appointed under an order, dated 20th September,1987, till the last working order, dated 20th September,1987, till the last working order, dated 20th September,1987, till the last working day of the faculty academic session 1987-88, which day of the faculty academic session 1987-88, which day of the faculty academic session 1987-88, which admittedly expired in April,1988. The appointment admittedly expired in April,1988. The appointment admittedly expired in April,1988. The appointment order terms the appointment as purely temporary. order terms the appointment as purely temporary. order terms the appointment as purely temporary. Pursuant to the Order of appointment, the respondent Pursuant to the Order of appointment, the respondent Pursuant to the Order of appointment, the respondent ceased to continue in service as a lecturer in senior ceased to continue in service as a lecturer in senior ceased to continue in service as a lecturer in senior college in April, 1988. Thereafter the petitioner college in April, 1988. Thereafter the petitioner college in April, 1988. Thereafter the petitioner again re-advertised the same post and statutorily again re-advertised the same post and statutorily again re-advertised the same post and statutorily constituted selection committee, held interviews, in constituted selection committee, held interviews, in constituted selection committee, held interviews, in which process the respondent came to be rejected, which process the respondent came to be rejected, which process the respondent came to be rejected, whereas one M.T. Hyalij was selected and consequently whereas one M.T. Hyalij was selected and consequently whereas one M.T. Hyalij was selected and consequently appointed. It is the case of the petitioner- appointed. It is the case of the petitioner- appointed. It is the case of the petitioner- Management that as the respondent had served with the Management that as the respondent had served with the Management that as the respondent had served with the petitioner for about 10 years with a view to see that petitioner for about 10 years with a view to see that petitioner for about 10 years with a view to see that no prejudice is caused to the respondent, the no prejudice is caused to the respondent, the no prejudice is caused to the respondent, the petitioner appointed the respondent in junior college petitioner appointed the respondent in junior college petitioner appointed the respondent in junior college as before, from 29.7.1988 and since then till date, the as before, from 29.7.1988 and since then till date, the as before, from 29.7.1988 and since then till date, the respondent continues to serve in the junior college. respondent continues to serve in the junior college. respondent continues to serve in the junior college. 5. The Respondent filed an appeal before the . The Respondent filed an appeal before the . The Respondent filed an appeal before the University and College Tribunal as late as in May, 1992 University and College Tribunal as late as in May, 1992 University and College Tribunal as late as in May, 1992 i.e. after a period of more than four years and i.e. after a period of more than four years and i.e. after a period of more than four years and contended that the respondent’s appointment in college contended that the respondent’s appointment in college contended that the respondent’s appointment in college was on probation and the termination from the end of was on probation and the termination from the end of was on probation and the termination from the end of Academic year 1987-88 was illegal. The Petitioner had Academic year 1987-88 was illegal. The Petitioner had Academic year 1987-88 was illegal. The Petitioner had put forth three fold submissions before the tribunal, put forth three fold submissions before the tribunal, put forth three fold submissions before the tribunal, as follows :- as follows :- as follows :- (i) that the respondent was appointed (i) that the respondent was appointed (i) that the respondent was appointed temporarily as lecturer in senior college, vide temporarily as lecturer in senior college, vide temporarily as lecturer in senior college, vide Order dated 20th Sept., 1987 only up to the end Order dated 20th Sept., 1987 only up to the end Order dated 20th Sept., 1987 only up to the end of academic session which expired in April, of academic session which expired in April, of academic session which expired in April, 1988; 1988; 1988; (ii) that the respondent had acquiesced (ii) that the respondent had acquiesced (ii) that the respondent had acquiesced in the the the termination of his service as lecturer in termination of his service as lecturer in termination of his service as lecturer in senior college inasmuch as the respondent had senior college inasmuch as the respondent had senior college inasmuch as the respondent had accepted the appointment in Junior College from accepted the appointment in Junior College from accepted the appointment in Junior College from July, 1988 without any demur and hence the July, 1988 without any demur and hence the July, 1988 without any demur and hence the respondent could not have questioned the respondent could not have questioned the respondent could not have questioned the legality of the termination belatedly, after a legality of the termination belatedly, after a legality of the termination belatedly, after a period of more than four years; period of more than four years; period of more than four years; (iii) Lastly, it is contended that the (iii) Lastly, it is contended that the (iii) Lastly, it is contended that the respondent had taken a calculated chance and respondent had taken a calculated chance and respondent had taken a calculated chance and had participated in the process of selection in had participated in the process of selection in had participated in the process of selection in July,1988 when the post in the Sr.College was July,1988 when the post in the Sr.College was July,1988 when the post in the Sr.College was re-advertised and after his rejection in the re-advertised and after his rejection in the re-advertised and after his rejection in the selection process appeal has been filed, selection process appeal has been filed, selection process appeal has been filed, challenging the termination; challenging the termination; challenging the termination; 6. Rejecting the above contentions, the Tribunal . Rejecting the above contentions, the Tribunal . Rejecting the above contentions, the Tribunal proceeded to hold that the appointment of the proceeded to hold that the appointment of the proceeded to hold that the appointment of the respondent was on probation and that the termination is respondent was on probation and that the termination is respondent was on probation and that the termination is illegal. illegal. illegal. 7. The appointment order clearly indicate that the . The appointment order clearly indicate that the . The appointment order clearly indicate that the nature of the appointment was purely temporary and it nature of the appointment was purely temporary and it nature of the appointment was purely temporary and it is only till the end of academic session, The is only till the end of academic session, The is only till the end of academic session, The appointment Order is dated 28th September, 19987 and appointment Order is dated 28th September, 19987 and appointment Order is dated 28th September, 19987 and the relevant part of the Order reads thus :- the relevant part of the Order reads thus :- the relevant part of the Order reads thus :- "Your appointment is purely temporary "Your appointment is purely temporary "Your appointment is purely temporary for the period of one year up to the for the period of one year up to the for the period of one year up to the last working day of academic year last working day of academic year last working day of academic year 1987-88" 1987-88" 1987-88" The discontinuance of the The discontinuance of the The discontinuance of the respondent is from the end of respondent is from the end of respondent is from the end of Academic Session 1987-88, Academic Session 1987-88, Academic Session 1987-88, in terms of the Order. The in terms of the Order. The in terms of the Order. The nature of the appointment nature of the appointment nature of the appointment has to be determined having has to be determined having has to be determined having regard to the terms of the Order of the appointment. I regard to the terms of the Order of the appointment. I regard to the terms of the Order of the appointment. I have no doubt in my mind that the have no doubt in my mind that the have no doubt in my mind that the appointment of the appointment of the appointment of the respondent was of temporary nature respondent was of temporary nature respondent was of temporary nature and the respondent and the respondent and the respondent has accepted the same. The Respondent has also has accepted the same. The Respondent has also has accepted the same. The Respondent has also acquiesced in acquiesced in acquiesced in termination of his service from Sr.College termination of his service from Sr.College termination of his service from Sr.College by joining as lecturer in junior college in July, 1988. by joining as lecturer in junior college in July, 1988. by joining as lecturer in junior college in July, 1988. It is difficult to understand as to what It is difficult to understand as to what It is difficult to understand as to what promoted the promoted the promoted the respondent, after a period of more than respondent, after a period of more than respondent, after a period of more than four years to four years to four years to file an appeal and question the file an appeal and question the file an appeal and question the correctness of the correctness of the correctness of the discontinuance of the respondent discontinuance of the respondent discontinuance of the respondent from service. Be that from service. Be that from service. Be that as it may, the appeal so filed as it may, the appeal so filed as it may, the appeal so filed belatedly by the belatedly by the belatedly by the respondent, came to be allowed. respondent, came to be allowed. respondent, came to be allowed. by erroneously holding by erroneously holding by erroneously holding that the Respondent’s appointment was on probation. that the Respondent’s appointment was on probation. that the Respondent’s appointment was on probation. During the pendency of this writ petition, the impugned During the pendency of this writ petition, the impugned During the pendency of this writ petition, the impugned order passed by the Tribunal was stayed and the order passed by the Tribunal was stayed and the order passed by the Tribunal was stayed and the respondent continue to serve in junior college . The respondent continue to serve in junior college . The respondent continue to serve in junior college . The person who has been appointed pursuant to the person who has been appointed pursuant to the person who has been appointed pursuant to the selection process conducted in July,1988, has now put selection process conducted in July,1988, has now put selection process conducted in July,1988, has now put in about 12 years of service. I do not find any in about 12 years of service. I do not find any in about 12 years of service. I do not find any illegality in discontinuance of the respondent on illegality in discontinuance of the respondent on illegality in discontinuance of the respondent on expiry of the term of the temporary appointment. I am expiry of the term of the temporary appointment. I am expiry of the term of the temporary appointment. I am also of the clear view that the respondent having also of the clear view that the respondent having also of the clear view that the respondent having acquiesced in his discontinuance from the service as acquiesced in his discontinuance from the service as acquiesced in his discontinuance from the service as aforesaid is estopped from challenging the aforesaid is estopped from challenging the aforesaid is estopped from challenging the discontinuance by terming it as an illegal termination discontinuance by terming it as an illegal termination discontinuance by terming it as an illegal termination by preferring an appeal before the University Tribunal. by preferring an appeal before the University Tribunal. by preferring an appeal before the University Tribunal. 8. At this stage, the learned Counsel for the . At this stage, the learned Counsel for the . At this stage, the learned Counsel for the respondent submits that the respondent had worked for respondent submits that the respondent had worked for respondent submits that the respondent had worked for about one year in senior college and the same could be about one year in senior college and the same could be about one year in senior college and the same could be construed as a break in service in Jr. College and if construed as a break in service in Jr. College and if construed as a break in service in Jr. College and if continuance in service is not granted expressly, then continuance in service is not granted expressly, then continuance in service is not granted expressly, then the respondent is likely to suffer . The learned the respondent is likely to suffer . The learned the respondent is likely to suffer . The learned Counsel for the Petitioner - Management submits that Counsel for the Petitioner - Management submits that Counsel for the Petitioner - Management submits that with a view to protect the service of the respondent, with a view to protect the service of the respondent, with a view to protect the service of the respondent, he was immediately appointed in junior college on his he was immediately appointed in junior college on his he was immediately appointed in junior college on his dis-continuance from senior college and in no way the dis-continuance from senior college and in no way the dis-continuance from senior college and in no way the respondent is subjected to prejudice or loss. respondent is subjected to prejudice or loss. respondent is subjected to prejudice or loss. 9. As the respondent is in continuous service in . As the respondent is in continuous service in . As the respondent is in continuous service in junior college since 1979 till date and had worked in junior college since 1979 till date and had worked in junior college since 1979 till date and had worked in senior college only for one academic session, it would senior college only for one academic session, it would senior college only for one academic session, it would be in the interest of justice that the technical break, be in the interest of justice that the technical break, be in the interest of justice that the technical break, if any, should be condoned. The period of service if any, should be condoned. The period of service if any, should be condoned. The period of service rendered by the Respondent shall not be treated as rendered by the Respondent shall not be treated as rendered by the Respondent shall not be treated as break in service and the Respondent needs to be treated break in service and the Respondent needs to be treated break in service and the Respondent needs to be treated as in continuous service since his initial appointment as in continuous service since his initial appointment as in continuous service since his initial appointment in Jr. College till date. The said break, if any, in Jr. College till date. The said break, if any, in Jr. College till date. The said break, if any, shall be condoned by the authorities concerned. shall be condoned by the authorities concerned. shall be condoned by the authorities concerned. In the result, writ petition is allowed. The In the result, writ petition is allowed. The In the result, writ petition is allowed. The impugned Order passed by the Presiding Officer, impugned Order passed by the Presiding Officer, impugned Order passed by the Presiding Officer, College Tribunal, dated 19.1.1992, is hereby College Tribunal, dated 19.1.1992, is hereby College Tribunal, dated 19.1.1992, is hereby quashed and set aside. quashed and set aside. quashed and set aside. Rule made absolute in above terms. Rule made absolute in above terms. Rule made absolute in above terms. .... [A.P.DESHPANDE, J.] [A.P.DESHPANDE, J.] [A.P.DESHPANDE, J.] IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE WRIT PETITION NO.4459 OF 1994 WRIT PETITION NO.4459 OF 1994 WRIT PETITION NO.4459 OF 1994 DATE OF DECISION : 10.1.2007 DATE OF DECISION : 10.1.2007 DATE OF DECISION : 10.1.2007 For approval and signature : For approval and signature : For approval and signature : The Hon’ble Mr. Justice A.P.Deshpande : The Hon’ble Mr. Justice A.P.Deshpande : The Hon’ble Mr. Justice A.P.Deshpande : 1. Whether Reporters of Local 1. Whether Reporters of Local 1. Whether Reporters of Local Papers may be allowed to see the Papers may be allowed to see the Papers may be allowed to see the judgment? judgment? judgment? 2. To be referred to the 2. To be referred to the 2. To be referred to the Reporter or not ? Reporter or not ? Reporter or not ? 3. Whether Their Lordships wish 3. Whether Their Lordships wish 3. Whether Their Lordships wish to see the fair copy of the to see the fair copy of the to see the fair copy of the judgment? judgment? judgment? 4. Whether this case involves a 4. Whether this case involves a 4. Whether this case involves a substantial question of law as substantial question of law as substantial question of law as to the interpretation of the to the interpretation of the to the interpretation of the Constitution of India, 1950, or Constitution of India, 1950, or Constitution of India, 1950, or any Order made thereunder? any Order made thereunder? any Order made thereunder? 5. Whether it is to be 5. Whether it is to be 5. Whether it is to be circulated to the Civil Judges? circulated to the Civil Judges? circulated to the Civil Judges? 6. Whether the case involves an 6. Whether the case involves an 6. Whether the case involves an important question of law and important question of law and important question of law and whether a copy of the judgment whether a copy of the judgment whether a copy of the judgment should be sent to Nagpur Office? should be sent to Nagpur Office? should be sent to Nagpur Office? ***** ***** *****