1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD LETTERS PATENT APPEAL NO. 32 OF 1999 IN WRIT PETITION NO. 5039 OF 1997 Vidya D/o Sheshrao Mankhair, Age : 28 Years, Occu. : Service, Lecturer in Botany, Bhusawal Arts, Science and P. O. Nahata Commerce College, Bhusawal, Dist. Jalgaon. .. .. APPELLANT Versus 1. Tapti Education Society, Bhusawal, Dist. Jalgaon, Through its Chairman of the Executive Committee. 2. The Principal, Bhusawal Arts, Science and P. O. Nahata Commerce College, Bhusawal, Dist. Jalgaon. 3. The North Maharashtra University, Jalgaon, through its, Registrar. 4. The Joint Director, Higher Education Grants, Jalgaon Division, Jalgaon. .. .. Respondents 2 Shri S. R. Barlinge, Advocate for the Appellant. Shri S. C. Bora, Advocate for the Respondent No. 1 and 2. Shri A. B. Girase, Advocate for the Respondent No. 3. Shri S. K. Tambe, A.G.P. for the Respondent No. 4. CORAM : B. R. GAVAI & N. D. DESHPANDE, JJ. DATE : 03RD AUGUST, 2009. ORAL JUDGMENT [ Per B. R. Gavai, J.] : 1. By consent the appeal is taken up for hearing. 2. Heard Shri S. R. Barlinge learned counsel for the appellant, Shri S. C. Bora, learned counsel for the respondent No. 1 and 2, Shri A. B. Girase, learned counsel for the respondent No. 3 and Shri S. K. Tambe learned A.G.P. for the respondent No. 4. 3. The facts giving rise to the present appeal are as under : The appellant was appointed by respondent Nos. 1 and 2 as lecturer in Botany vide order dated 17th August, 1993, on probation for a period of two years. It is not in dispute that the appointment of the appellant was in pursuant to the selection procedure adopted by the selection committee duly constituted by the respondent No. 3/University. It is also not in dispute that, the respondent No. 3/University vide communication dated 27th July, 3 1995, had granted approval to the appointment of the appellant on the condition that, the appellant clears NET/SET examination prior to 31st March 1996. However, it appears that, subsequently sufficient work load was not available and as such services of the appellant came to be terminated vide order dated 06th August, 1996. Being aggrieved thereby the appellant went in appeal before University and College Tribunal, Aurangabad bearing Appeal No. NM-15/1997. The learned Tribunal vide order dated 06th November, 1997, dismissed the appeal. Being aggrieved thereby the present appellant filed writ petition bearing Writ Petition No. 5039/1997. The same is dismissed by the learned Single Judge vide order dated 17th February, 1998. Being aggrieved thereby the present Letters Patent Appeal. 4. Since, during pendency of the appeal, matter has been amicably settled between the appellant and the respondent Nos. 1 and 2, it is not necessary to go into the merits of the contentions raised by the appellant and the respondent Nos. 1 and 2. 5. It has been agreed between appellant and respondent Nos. 1 and 2 that since now work load is available, the respondent Nos. 1 and 2 would reinstate the appellant in service and withdraw the termination order dated 06th August, 1997. It has been further agreed that appellant would be granted continuity of service, however she would not be entitled to claim any back wages for the period between the date of termination and her reinstatement. 4 6. The appeal is resisted by the respondent Nos. 3 and 4. 7. The respondent No. 3/University opposes the appeal on two grounds. Firstly, that the appellant has not cleared NET/SET examination and secondly, the post now which is available with the respondent Nos. 1 and 2 in the Botany subject is reserved for Scheduled Caste. Shri Girase learned counsel appearing for respondent No. 3 submits that, since the post is reserved for Scheduled Caste, the appellant cannot be accommodated on the said post. 8. The respondent No. 4 opposes the appeal on the ground that, the appointment of the appellant was on Ad-hoc basis and as such, she cannot claim re-appointment as a matter of right. 9. In so far as, the first contention raised by the University regarding appellant has not cleared NET/SET qualification is concerned, it is not in dispute that in many cases, in so far as appointments prior to 1999 are concerned, this Court has directed the colleges to submit the proposals for relaxation of condition to the University Grants Commission through the concerned Universities. In that view of the matter, we find that the first objection raised by the University is not tenable. 10. Shri Barlinge learned counsel for the appellant submits that, the objection of the University regarding NET/SET clearance would also not be relevant, now in so far as the appellant has 5 passed M. Phil examination. 11. In so far as, the second objection regarding post being reserved for Scheduled Caste is concerned, now since appointment of the appellant would relate back to 1993 and since appellant was undisputedly appointed against open category post in the said year, subsequent, reservation of the post in the present year for Scheduled Caste category, would not come in the way of appellant. In that case, respondent No. 1 and 2 can be directed to submit fresh proposal for new roaster points thereby providing one of the open seats to be reserved for Scheduled Caste and the post on which appellant would be accommodated to be treated as open category seat. 12. In so far as objection raised by the Stage Government regarding appellant being appointed on Ad-hoc basis is concerned, same is dehors the record. It can be seen that appointment of the appellant is on probation, after she was selected by a duly constituted selection committee. We, therefore find no merit in the submissions made by the respondent No. 4/Joint Director in that regard. 13. In that view of the matter, the appeal is disposed of in the following terms. i) The respondent No. 1 and 2 shall reinstate the appellant on the post of lecturer in Botany within a period of two 6 weeks from today. ii) It is made clear that the appellant would be entitled for continuity of service, however, the appellant would not be entitled to any of the back wages for the period during the date of her termination and till her actual reinstatement. The appellant shall not raise any claim in this regard either against respondent Nos. 1 and 2 and against respondent No. 4. iii) Since the appointment of the appellant relates back 1993 i. e. prior of 1999, the respondent Nos. 1 and 2 shall submit a proposal for relaxation from the condition of clearing NET/SET examination to the respondent No. 3/University along with all the necessary information. iv) The respondent No. 3/University would forward the claim of the appellant for relaxation from NET/SET examination as aforesaid to the University Grants Commission within a period of four weeks from the receipt of said proposal from respondent Nos. 1 and 2. [ N. D. DESHPANDE, J.] [ B. R. GAVAI, J.] bsb/August 09