W.P. No.1767 OF 2001 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1767 OF 2001 Smt.Jyotika Prakash Chitale ... Petitioner V/s. Maharashtra Cosmopolitan Education Society & Ors. ... Respondents Mr.A.A. Garge for Petitioner Mr.C.K. Thomas for Resp. Nos.1 and 2 Mr.A.P. Vanarse, AGP, for Respondent No.4 CORAM: SMT.NISHITA MHATRE, J. JUDGEMENT RESERVED ON: JULY 16, 2010 JUDGEMENT PRONOUNCED ON: AUGUST 18, 2010 JUDGEMENT: 1. The petition challenges the judgment and order of the University and College Tribunal dated 10.3.2000. The appeal filed by the petitioner has been dismissed. 2. The facts giving rise to the present petition are as follows: The petitioner was appointed as a Librarian in Respondent No.1 college on 17.7.1990. She was selected after the due procedure was followed. The petitioner contends that she requested Respondent Nos.1 and 2 to permit her to obtain the requisite qualifications of Masters in Library Science between 1990 and 1996. According to her, respondent Nos.1 and 2 did not give any response to her request. The payscale of the petitioner was reduced and, therefore, she raised a grievance W.P. No.1767 OF 2001 : 2 : before the Registrar of the University of Mumbai i.e. Respondent No.3 on 25.11.1996. The petitioners’ services were terminated on 3.7.1997. She preferred an appeal before the College Tribunal in respect of her illegal termination from service. She also filed Writ Petition No.5350 of 1997 in respect of the reduction of her payscale. On 21.10.1997, Respondent Nos.1 and 2 submitted before the Tribunal that they had not terminated the services of the petitioner and hence, the aforesaid appeal No.35 of 1997 was disposed of. 3. According to the petitioner, she made attempts to obtain her Masters in Library Science even thereafter between 1997 and 1998. By a letter dated 8.1.1999, she requested Respondent No.2 to grant her the employer’s certificate in order to avail of an opportunity to appear for the M.Lib. Science examination. That certificate was issued on 16.1.1999. According to the petitioner, she informed the respondent Nos.1 and 2 by her letter dated 28.1.1999 that the certificate issued could be used by her only for the next academic year. Advertisements were issued in various newspapers by Respondent No.2 for the appointment of a full time Librarian in Respondent No.1 college on 26.7.1999. The services of the petitioner were then terminated on 16.8.1999 and Respondent No.5 was appointed temporarily in her place. An appeal was preferred by the petitioner before the College Tribunal being Appeal No.40 of 1999. This appeal has been dismissed on 10.3.2000 and hence, the present petition. 4. The main contention raised by the learned advocate for the petitioner is that although the petitioner desired to acquire the qualifications required for being posted as a Librarian, Respondent Nos.1 and 2 had not issued an employer’s certificate till W.P. No.1767 OF 2001 : 3 : 16.1.1999. It is submitted that Respondent Nos.1 and 2 were well aware that that certificate could not have been used for the current academic year but for the next year. It is submitted that even after issuing the certificate, respondent Nos.1 and 2 did not give the petitioner an opportunity to use the certificate and acquire the requisite qualifications. According to the learned advocate, the action of Respondent Nos.1 and 2 in terminating the services of the petitioner in August 1999 was malafide. It is further submitted that although the petitioner’s services were temporary in nature as she had not acquired the requisite qualifications, she could not have been replaced but an adhoc employee. The learned advocate points out that the academic year for the degree of Master of Library and Information Science from Indira Gandhi National Open University was January to December each year. The admissions commenced in October of every year and therefore the certificate received by the petitioner on 16.1.1999 could have been utilised only for the academic year January 2000 to December 2000 by obtaining admission in October 1999. 5. On the other hand, the learned advocate for the respondent points out that the petitioner had been afforded every opportunity to acquire the qualifications of M.Lib. in order to continue as a Librarian with the college. An affidavit has been filed in reply to the petition in which letters written to the petitioner requiring her to obtain the qualifications have been annexed. The learned advocate points out that the affiliation of the respondent college to the University of Mumbai was dependant on certain university norms and standards being complied by the college. He points out that the college has informed the petitioner by its letter dated 14.10.1995 of the circular issued by the Government regarding the affiliation of colleges and the assurance given by the college to employ qualified teaching and non-teaching staff. On W.P. No.1767 OF 2001 : 4 : 22.10.1996, respondent Nos.1 and 2 called upon the petitioner again to improve her qualifications in consonance with the norms set by the University. According to the learned advocate for the respondent Nos.1 and 2, despite repeated requests made by respondent Nos.1 and 2, the petitioner refused to improve her qualifications and acquire the standards set by the university It was in these circumstances that the services of the petitioner were terminated. He submits that the affiliation of the Respondent Nos.1 and 2 to the University of Mumbai was at stake because of the petitioner’s lack of qualifications. He further points out that in any event the petitioner has attained the age of superannuation now and therefore no useful purpose would be served even assuming she succeeds in the present petition. The petitioner has not acquired the requisite qualifications even today and, therefore, she is not entitled to be reinstated in service, according to the learned advocate. 6. The Tribunal in this case has concluded that the petitioner is not entitled to reinstatement. The main reason for denying the petitioner the relief is that she was not suitably qualified. The Tribunal has observed that although the petitioner had a Bacherlors’ Degree in Library Science, she could not have been continued in the post endlessly without the requisite qualifications of a Masters Degree in that subject. The Tribunal has noted that Respondent No.5 herein had a Masters Degree in Library Science and had been selected by following the due process of law. The Tribunal has negatived the contention of the petitioner that she was appointed on probation although her appointment letter of 17.7.1990 stipulated so. The Tribunal has found that since the petitioner did not have the requisite qualifications when she was appointed, she could not have been considered as a probationer but only as a temporary employee. The Tribunal has noted that the long duration of nine years of W.P. No.1767 OF 2001 : 5 : service with the Respondent Nos.1 and 2 would not by itself be sufficient for the petitioner to lay a claim of permanency when she did not possess the requisite qualifications. The Tribunal has noted further that there was no material on record to show that the petitioner had made any attempt to obtain an employer’s certificate from 1996 to 1999 in order to enable her to obtain the Masters degree. On the other hand, respondent Nos.1 and 2 had written her letters bringing to her notice the fact that she was required to complete her Masters degree urgently. In these circumstances, the Tribunal has held that the termination of services of the petitioner was not illegal. 7. The petitioner was appointed, as mentioned earlier in July 1990, without having the qualifications of a Masters degree in Library Science. It appears that the earliest letter written to the petitioner by the respondents directing her to obtain the necessary qualifications is dated 14.10.1995. A letter was written again on 22.10.1996 requiring the petitioner to obtain the qualifications. It appears from the record that she took no steps to obtain the requisite qualifications. The only reason mentioned in the present petition for not obtaining the qualifications was that the employer’s certificate had not been granted to her. If that was the only hurdle in obtaining the requisite qualifications there is nothing on record to indicate that the petitioner had taken any steps to obtain the certificate. Besides sending a letter on 15.10.1996 to Respondent No.2 for a certificate the Petitioner did nothing to follow this up. This letter was followed by a communication from the Respondent No.2 to the petitioner on 22.10.1996 requiring her to obtain the necessary qualifications. No steps appear to have been taken by the petitioner to ensure that such a certificate was issued. There is no material on record to indicate that the letter of 22.10.1996 W.P. No.1767 OF 2001 : 6 : was replied by the petitioner either immediately or at any point of time thereafter. In fact, it was only about 2 ½ years later in January 1999 that the petitioner awoke from her slumber and requested the respondents to issue the employer’s certificate. She had enclosed an application form of the Indira Gandhi National Open University for the programme of M.Lib. Science. This application was dated 16.1.1999. The certificate appears to have been granted by Respondent Nos.1 and 2 immediately. However, there is no material on record to indicate that the Petitioner had made persistent efforts to obtain the certificate prior to 1999 and that it had been refused by respondent Nos.1 and 2. There is no material on record to indicate that a form, similar to the one which was submitted on 16.1.1999 had been submitted by the petitioner earlier and that the respondents had refused to entertain the request of the petitioner. 8. In my opinion, therefore, the Tribunal has committed no error in dismissing the appeal. The petitioner was not entitled to continue as a Librarian without the requisite qualifications. The attitude of the petitioner was apparent reclacitrant. 9. The submission of the learned advocate for the petitioner is that the employer’s certificate had been granted in January 1999 and, therefore, the respondents ought to have waited till the petitioner could utilise that certificate, knowing full well that the academic year for the Masters Degree was i.e. from January 2000 to December 2000. This submission of the learned advocate also cannot be accepted since the petitioner had been afforded every opportunity from 1990 when she was appointed to ensure that she was adequately qualified to hold the post of a Librarian. The petitioner was warned in 1995 itself by Respondent Nos. W.P. No.1767 OF 2001 : 7 : 1 and 2 that she was required to take the necessary steps to improve her qualifications. However, she chose to remain silent in the matter till 1999. In the case of Shesh Mani Shukla vs. District Inspector of Schools, Deoria and Others, (2009) 15 SCC 436, the Supreme Court has observed that although an employee works for a long time if his employment is in contravention of the statutory provisions and thus, was void ab initio no exception can be made only because he had worked for a long period of time. The mere fact that an employee works without the requisite qualifications for a long period would not entitle him to permanency as it is necessary for the employee to establish a legal right in himself and corresponding legal duty on the employer. These observations of the Supreme Court apply to the facts in the present case. 10. Besides, the Petitioner has already attained the age of superannuation without obtaining the M.Lib. Science Degree although the employer's certificate was issued in 1999. In such circumstances, in my view, there is no need to grant any relief to the Petitioner under Article 227 of the Constitution of India. The Writ Petition is therefore dismissed. Rule discharged. No costs.