- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1504 OF 2002 ... Mr.Rajaram Vithoba Gurav and 6 others. ..Petitioners v/s. Shivaji University & two others ..Respondents ... Mr.S.R.Savagave for the Petitioner No.2. Mr.R.G.Ketkar for Respondents Nos.1 & 2. Ms.S.S.Bhende AGP for State. ... CORAM: D.K.DESHMUKH & V.M.KANADE, JJ. DATED: 30TH JANUARY, 2008 - 2 - P.C.: 1. The learned Counsel appearing for the Petitioner, at the outset, submitted that he is pressing this petition only so far as Petitioner No.2 Dr.(Smt.) Madubala Arun Shah is concerned. According to averments in the petition, the Petitioner No.2 is employed as Lecturer in Mathematics in the Department of Science since July, 1997 on ad-hoc basis to teach post-graduate students under the Respondent No.1/University. The Respondent No.1/University is constituted under the Maharashtra University Act, 1994. 2. The prayer of the Petitioner is that the university should be directed to treat the Petitioner as a confirmed permanent teacher in the post of Lecturer in Mathematics. 3. As per the affidavit filed by the Respondent/University in the Department of Mathematics under the Respondent/university there is one post of Lecturer vacant. But that post is - 3 - earmarked for a candidate belonging to Schedule Caste. The post was advertised and at the interview when no candidate belonging to SC suitable for the appointment as Lecturer was found, the Petitioner, who is a candidate belonging to open category, was appointed on temporary basis till the suitable candidate belonging to SC becomes available. Perusal of the provisions of Maharashtra University Act shows that when there is a permanent vacancy to be filled in, the post is required to be advertised and the selection committee is to be constituted as per the provisions of sub-section 2 of Section 77 and appointment is to be made on the basis of the recommendation made by the selection committee. Perusal of Section 77 of the Act shows that when the vacancy is not a permanent vacancy, but a temporary vacancy, the local selection committee is constituted in accordance with the provisions of Section 77 and the candidate selected is to be appointed for a period not exceeding one year. According to averments in the petition, the Petitioner was selected by local selection committee, obviously constituted under the provisions of Section 77. The Petitioner, therefore, obviously has not been selected by a selection committee constituted under - 4 - Section 77, which is required to be constituted for selecting the candidate for appointment on regular or permanent basis, and therefore, in our opinion, the Petitioner cannot claim that she should be made permanent in the vacant post of Lecturer in Mathematics, because she has not been selected by the Selection committee, which is competent to select the candidate for appointment on permanent basis. The order made by the court for appointment of the Petitioner on permanent basis will violate the mandate of Section 77 of the Maharashtra University Act. There is one more difficulty in the way of the Petitioner getting appointment on permanent basis. As per the averments in the affidavit filed by the University, which are uncontroverted, there is only one vacancy of the Lecturer in Mathematics under the Respondent/University and that vacancy is earmarked for a candidate belonging to Schedule Caste and therefore, the Petitioner who is the candidate belonging to open category cannot be given permanent appointment in that vacancy. It is not even the case of the Petitioner that that post has been dereserved by following any law. Vacant post of Lecturer continues to be reserved for SC, in which the Petitioner is working on temporary basis. - 5 - 4. By an order passed by this court dated 15th April, 2005, so far as the Petitioner No.2 is concerned, the Respondent/University was directed to continue the Petitioner in service on the same terms and conditions till duly selected candidate pursuant to the provisions of Section 77 of the Act becomes available for appointment in the vacant post. That order was challenged by the Petitioner before the Supreme Court and the Supreme Court by order date 21st July, 2006 set aside that order and directed this court to decide the petition again in view of the decision of the Constitution Bench of the Supreme Court in the case of Secretary, State of Karnataka and ors. v/s. Umadevi and ors., (2006) 4 SCC 1, and therefore with the help of the learned Counsel appearing for the Petitioner we have gone through the judgment of the Constitution Bench of the Supreme Court in the case of Umadevi, referred to above. We find that the controversy that is considered by the Supreme Court in its judgment in the case Umadevi is totally different from the controversy which arises in this case. We find that what is said by the judgment of the Supreme Court in the case of Umadevi, instead of helping the case of the Petitioner goes - 6 - against the case of the Petitioner. We are concerned with a case where the Petitioner has not been selected for permanent appointment by a selected committee contemplated by a law and the Petitioner has been appointed in a vacancy which is earmarked for SC candidate. 5. Taking overall view of the matter, therefore, in our opinion the Petitioner is not entitled to the relief that is claimed in the petition namely that the University should be directed to confirm her in the post of Lecturer in Mathematics. However, as the Petitioner has been selected for appointment to the post of Lecturer in Mathematics against the temporary vacancy, in our opinion, till the University advertise the post as required by the provision of section 77 and makes appointment on permanent basis, on the basis of the selection made by the Selection Committee constituted under Section 77, the Petitioner should be continued in the post on the same terms and conditions on which she is holding the post presently. Petition disposed of. (D.K.DESHMUKH, J.) - 7 - (V.M.KANADE, J.)