-: 1 :- SPB IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2332 OF 2007 WRIT PETITION NO. 2332 OF 2007 WRIT PETITION NO. 2332 OF 2007 Harshendu Vinayak Madge, age 45 yrs. ¦ R/at Nav Durga Complex, C-101, ¦ Sector XIX A, Nerul (East), ¦ Navi Mumbai 400 076 ¦ .. Petitioner. Vs. 1. Chembur Trombay Education Society, ¦ through its Secretary, office at ¦ N.G.Acharya College, Chembur, ¦ Mumbai 400 071. ¦ ¦ 2. N.G. Acharya & D.K.Mrathe College ¦ of Arts, Science & Commerce, through¦ its Principal. ¦ ¦ 3. The University of Mumbai, through ¦ its Registrar, Fort Mumbai-32. ¦ ¦ 4. State of Maharashtra, through its ¦ Department of Higher & Technical ¦ Education, Mantralaya, Annexe ¦ Mumbai-32. ¦ ¦ 5. Mr. Chandrakant Susane, ¦ R/at Lok Manya Nagar, Pada No.4, ¦ Near Santoshi Mata Temple, Thane-606¦ .. Respondents. --- --- --- Mr. Mihir Desai for the Petitioner. Mr. Abhay L. Patil for the Respondents 1 and 2. Mr.R.A.Rodriques for the Respondent No.3. Mr. S.S. Joshi, AGP for the Respondent No.4-State. Mr. A.Abdi i/by M/s. Abdi & Co. for the Respnodent No.5. -: 2 :- --- CORAM : F.I.REBELLO & R.S. MOHITE, JJ. CORAM : F.I.REBELLO & R.S. MOHITE, JJ. CORAM : F.I.REBELLO & R.S. MOHITE, JJ. DATED : 19th NOVEMBER, 2008. DATED : 19th NOVEMBER, 2008. DATED : 19th NOVEMBER, 2008. JUDGEMENT :- JUDGEMENT :- JUDGEMENT :- 1. Rule. Heard forthwith. 2. The petitioner was employed with respondent no.2 which is an institution run by the respondent no.1, as a Lecturer in Philosophy in Foundation Course. The petitioner on initial selection joined respondent no.2 college on 27.6.1994. Initial appointment of the petitioner was not by a duly constituted selection committee. The petitioner since 1996 on selection continued to serve in the said post. As the post was reserved, the petitioner was selected and appointed every year after due advertisement, continuously, till his termination on 31.07.2003 on account of being rendered surplus. The post was reserved for S.C.candidate. 3. The respondent nos. 1 and 2 to fill in the post which was reserved for SC candidate, advertised the same on 7th of June, 1996, 30th of May, 1997, 02nd September, 1998, 28th May, 1999, 24th March, 2000 as also on 22nd November, 2001. There was no advertisement in the year 2002-2003 as apparently the post was declared surplus and -: 3 :- the services of the petitioner were terminated w.e.f. 1st of May, 2002. The post was again re-advertised on 31.07.2003, wherein it was shown as interchangeable between SC/ST. No SC/ST candidates applied. The post was again advertised as interchangeable on 16.06.2004 for the academic year 2004-2005. Pursuant to that advertisement a candidate belonging to S.C.category applied. The respondent no.5, as a reserved candidate and eligible was selected. 4. The petitioner in the course of his employment, on 19th April, 2002 was issued a letter, terminating his services from 1st of May, 2002. The petitioner, filed a writ petition, being writ petition no. 1935/2002 before this court for various reliefs. The respondent no.1 filed an affidavit, stating that the petitioner could not be continued in the academic year 2002-2003 because the Joint Director of Education had not given a " no objection" for filling up the post. In the same petition, affidavit-in-reply was filed by the University stating that unless papers, concerning de-reservation are submitted to them, they were not in a position to proceed ahead with the dereservation. In the light of the affidavit, the petitioner withdrew the petition to approach the college tribunal against the order of termination. The petitioner accordingly, filed an appeal -: 4 :- being appeal no. 99/2002. The said appeal came to be decided by the judgment dated 13th of February, 2003. The Tribunal ordered that the termination of services of the petitioner be set aside and the petitioner was directed to be taken back. The State Government was directed to pay the wages of the petitioner. The petitioner, accordingly, was taken back in service. 5. A proposal for dereservation dated 20th of March, 2003 was submitted to the university and the petitioner was accordingly informed by letter dated 21st of April, 2003. Subsequent to the proposal forwarded for de-reservation, two further advertisements were issued on 31st of July, 2003 and 13th June, 2004 for appointment to the post, showing the post as interchangeable. 6. According to the petitioner, once the college had submitted the proposal for de-reservation, there was no reason for the college to advertise the said post once again. In terms of the G.R. of 5th December, 1994, once the post is advertised on six occasions and a reserved category candidate was not available, the said post becomes ripe for dereservation. As the petitioner apprehended that his service would be terminated, petitioner filed writ petition no. 2248 of 2005 before this court. An order came to be passed, restraining the -: 5 :- respondents from terminating the services of the petitioner. The said petition was finally disposed of on 15th December, 2006, directing the University to forward the proposal for de-reservation to the State Government. The State Government in turn was to take necessary decision. Petitioner received a communication dated 09th of October, 2007 from the college, informing that the State Government had rejected the proposal of de-reservation in terms of the communication received by them from the university. The university was informed by the State Government of the decision not to deserve the post by communication of 14/24th September, 2007. 7. The petitioner by this petition challenges the said communication whereby his case for dereservation has been rejected with a further prayer that the petitioner’s back wages for the period from June 2002 to February, 2003 be paid, considering the order of the Tribunal in the appeal preferred by the petitioner. 8. Reply has been filed on behalf of the respondent no.4 by Usha Ravindra Parab. The petition, it is averred, ought to be dismissed, as the condition in the circular on the basis of which dereservation of the post was sought had not been complied with. The circular contemplates interchangeability in the reserved post in -: 6 :- the 6th year from amongst other backward classes as per the Government resolution dated 5th of December,1994. There were three sanctioned posts of Lecturers in Philosophy to teach foundation course out of which the post under dispute was reserved. If the post is dereserved then the provisions of 50% reservation for backward class categories laid down by the government G.R. dated 18th October, 1997 cannot be maintained. The regularization, it is averred cannot be a mode of employment for a candidate from the open category in respect of the post reserved for backward class. The respondent no.4 after considering the proposal for de-reservation and other prevailing service circulars, rejected the proposal for dereservation. 9. Reply has also been filed by the Registrar of the University. As per order of this court dated 15th December, 2006, the University sent a letter dated 4th of January 2007, asking proposal to be sent to the State Government for dereservation. The University had forwarded the said proposal by the letter dated 6th of June, 2006. The university received a reply from the State Government vide their letter dated 24th of September, 2007 that the proposal for dereservation had been rejected on the ground that the respondent no.5 had been selected on that post. The college had advertised -: 7 :- the post from 1997 to 2001 for the scheduled caste category. However, no candidate of the said category was available for appointment on the said post. In the year 2002, the post was advertised with interchangeability clause according to the G.R. dated 5thof December, 1994 and the University Circular dated 25th of January, 1995. 10. In the reply filed by the respondent nos. 1 and 2, it is contended that the proposal for de-reservation was submitted by the college in the year 2003. The same was not responded to by the University of Mumbai. The petitioner had, therefore, approached this court by writ petition no. 2248 /2005, seeking directions to the State Government to sanction the proposal for dereservation. Directions were issued by this court to forward the proposal to the State Government and then for the State Government to take action thereon. The College had issued necessary advertisement from year to year for selection of the reserved candidate. In response to the advertisement for the year 2003, reserved category candidate came to be recommended by the duly appointed selection committee. The process of dereservation had already begun. The appointment to the said post of regularly appointed open category candidate should also have to be taken into consideration. -: 8 :- 11. Respondent no. 5 Chandrakant Sasane has filed his reply. According to his affidavit, pursuant to the advertisement he had applied for the said post and was interviewed on September 14, 2004 and was selected. As respondent no.5 was the only reserved category candidate, he ought to have been considered for appointment to the said post. 12. At the outset it may be mentioned that even if the case of the respondent no.5 is considered, no relief can be granted to him as the post has since become surplus and the service of the petitioner terminated on that ground. Apart from that, the petition filed by the respondent before this court that he should be appointed, has been disposed off on the ground, that for similar reason no relief can be granted. 13. The true import of the communication of 4th of October, 2007 may first be considered. The case of the petitioner was rejected on the ground that advertisement was given in 2002 for interchangeability and Shri Chandrakant Sasane, a qualified candidate was available. This is the only reason given for rejecting the proposal for de-reservation of the post. From the facts noted earlier Shri Chandrakant Sasane, Respondent no.5 did not apply pursuant to the advertisement of 2002. Respondent -: 9 :- no.5 applied for the first time pursuant to the advertisement dated 16.06.2004 and was interviewed thereafter. The rejection of the proposal of dereservation of the post held by the petitioner, is based on a non-existing fact. The formation of opinion in arriving at a conclusion that the post cannot be dereserved is consequently vitiated. On this ground alone, the communication of 14th/24th September, 2007 is liable to be set aside. 14. In our opinion, the matter requires further consideration as certain other issues will have to be considered, more so as the petitioner has been moving this court apart from the present petition by earlier petition, the first one being writ petition 1935/2002. The relevant circular of the University and the Government resolution require that if inspite of the 5th advertisement, if no reserved candidate is available, in the 6th year, action shall be taken to fill up the reserved post by advertising interchangeability from amongst the backward class candidates, as per the university circular dated 11th March, 1987 and the subsequent circular dated 17th July, 1995. A combined reading of the two circulars provide that if in the 6th year, a reserved category candidate is not available then action for filling up the said post from open category -: 10 :- shall be taken up with the approval of Higher & Technical and Employment/ General Administration Department after following the procedure for advertisement. Once the post is dereserved in terms of the circular the appointment of non- backward class teacher shall be deemed to be on probation with retrospective effect from the date of initial appointment. If such candidate has held continuous appointment for two years in the college and in the same management then such appointment shall be confirmed from the date of completion of two years of continuous appointment. This circular, therefore, gives a right in the candidate selected in the 6th year after due publication if a reserved category candidate was not available to legitimately expect the management to apply for dereservation of the post and the univeristy and the government to act in terms of their circular and G.R.. 15. The post was continuously advertised from the year 1996-97 to 2000-2001. The post was not advertised in the year 2002 on account of the appeal pending before the University Tribunal but was again advertised in 2003 and then once again in 2004. When the post was advertised in the year 2001, the interchangeability clause was not included. The interchangeability clause was, however, included in the advertisement dated 31st July 2003. The petitioner was selected on both occasions -: 11 :- and no backward class candidate was available. According to the management they sent the proposal for dereservation in the year 2003. 16. Before considering the issue in the context of the legal right of the petitioner we may consider some of the unreported judgments of this court for a proper construction of the government G.R. and university circulars earlier referred to. In writ petition no. 2676 of 2004 in the case of Mrs.Chandana M. Rege vs. Mrs.Chandana M. Rege vs. Mrs.Chandana M. Rege vs. The Principal Ramnarain Ruia College of Arts & Science, The Principal Ramnarain Ruia College of Arts & Science, The Principal Ramnarain Ruia College of Arts & Science, Mumbai, decided on 11th April, 2005, Mumbai, decided on 11th April, 2005, Mumbai, decided on 11th April, 2005, this court had noted that in writ petition no. 2675/2005 in the case of Ms. Aditi Abhyankar, the Government had approved regularisation without advertisement of interchangeability clause. In that context this court held that advertisement is not mandatory and the condition can be relaxed. Reference, therefore, was also made to the judgment in writ petition 3101 of 2004 decided on 26th of April, 2005 in the case of Ashok Ashok Ashok Chandrashekar Rao vs. University of Mumbai & ors., Chandrashekar Rao vs. University of Mumbai & ors., Chandrashekar Rao vs. University of Mumbai & ors., where this court took the view that in the event there has been substantial compliance, ordinarily the government ought to de-reserve the post in terms of the resolution as long as there are no malafides and that the attempt was not to protect the candidates from the open category. -: 12 :- Therefore, the test of substantial compliance has been judicially recognized whilst considering dereservation of a reserved post in terms of government G.R.. This was also reiterated in the case of Supriya Habbu vs. K.V. Supriya Habbu vs. K.V. Supriya Habbu vs. K.V. Pendharkar College of Arts, Science and Commerce Pendharkar College of Arts, Science and Commerce Pendharkar College of Arts, Science and Commerce in writ petition 2141 of 1998 decided on 2nd of May, 2005. It is not necessary to refer to the various other judgments. The test of sufficient compliance by virtue of these judicial orders, will have to be considered while considering the action of the government in rejecting the application for dereservation in the case of the petitioner. 17. As noted in the various judgments, which considered the government G.R. that the object of reservation is affirmative action by the State so as to bring socio-economic equality based on the constitutional mandate enshrined in our Constitution. At the same time, the State Government which has provided for reservation in confirmity with the constitutional mandate also has provided for de-reservation in the event reserved category candidates are not available, thereby also accepting the principle that a teaching post be not left vacant for long time nor an incumbent selected to the post be allowed to languish in the post by not regularising him inspite of long years of service even -: 13 :- though a reserved category candidate is not available even after the post is continuously advertised for six years. 18. On the touch stone of this, let us now consider the facts and issues involved in this case. Admittedly, right from 1996 till 2003 and before that since 1994, the petitioner has been continuously working on the said post. The appointment being against reserved post was year to year after following due procedure including advertisement. In the year 2001 for the academic year 2001-02 it was necessary for the respondent nos. 1 and 2 to have advertised the post by showing the clause of interchangeability. This exercise was not in the hand of the petitioner but required compliance by respondent nos. 1 and 2. The respondent nos. 1 and 2 failed to comply with the said requirement. The petitioner’s services in between came to be terminated w.e.f.1st of May, 2001. The petitioner preferred an appeal before the University and College Tribunal which appeal was allowed on 13.02.2003, setting aside the order dated 19.04.2002 with a direction to reinstate the petitioner in service. The Tribunal noted that though the petitioner does not belong to reserved category, the petitioner is working since 1996 and the respondent college has been unable to get a reserved category candidate and as such, the respondent -: 14 :- management cannot consider the appointment of the petitioner as a new appointment. The Tribunal further held that as such the post could not have been abolished or work load reduced, unless requirement of the statute 439 (C) was fulfilled. The Tribunal noted that it was nobody’s case, that there had been compliance. This order was accepted by all parties to the order including the management, the university and the State Government. 19. Do the circulars of the university and the government resolutions create a right in the petitioner and or does the petitioner have a legitimate expectation that his case for regularisation be considered on his completing six years of continuous service after being selected by a duly constituted selection committee and the post being advertised showing the post as reserved in 2001 and with the interchangeability clause in 2003 in the absence of availibity of a backward class candidate. The circulars and the G.R.’s require that certain procedural formalities had to be undergone by the institution, the management and the university for the government to consider the case for dereservation. The petitioner therefore, would have a legitimate expectation that these authorities would act in the manner provided and that correspondingly the State Government would act fairly in terms of the resolution as interpreted by the -: 15 :- Court. That would require the Government to exercise its discretion to dereserve the post if there had been substantial compliance with its G.R. for dereservation. The doctrine of legitimate expectation is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. The doctrine to be applicable require regularity, predictability and certainty. It has developed in the context of the principles of natural justice and is now considered a part of the principles of natural justice. Southern Petro Chemicals Industries Co. Ltd., vs. Electricity Petro Chemicals Industries Co. Ltd., vs. Electricity Petro Chemicals Industries Co. Ltd., vs. Electricity Impetus & ET 10, (2007) 5 SCC 447. Impetus & ET 10, (2007) 5 SCC 447. Impetus & ET 10, (2007) 5 SCC 447. It has both procedural and substantive aspects. The substantive legitimate expectation, that is, expectation of a favourable decision of one kind or another has now been accepted as a part of law. "This doctrine has developed as a principle of reasonableness,fairness and is used against the Government authorities or other statutory bodies on whose representation or premises, parties or citizens act and some detrimental consequences ensue because of refusal of authorities to fulfil their promises or honour their commitments. In public law, in certain statutes relief to the parties aggrieved by action or promises of public authorities can be granted on the doctrine of legitimate expectation....." See Hira Hira Hira Tikno vs. Union Teritory of Chandigad (2004) 6 SCC 765. Tikno vs. Union Teritory of Chandigad (2004) 6 SCC 765. Tikno vs. Union Teritory of Chandigad (2004) 6 SCC 765. -: 16 :- When a person’s legitimate expectation is not fulfilled by taking a particular decision, then the decision maker should justify the demand of such expectation by showing some overriding public interest. See MRF Ltd. vs. CIT See MRF Ltd. vs. CIT See MRF Ltd. vs. CIT (2006) 8 SCC 702; Bannari Amman Sugar Ltd., vs. CTO (2006) 8 SCC 702; Bannari Amman Sugar Ltd., vs. CTO (2006) 8 SCC 702; Bannari Amman Sugar Ltd., vs. CTO (2005) 1 SCC 625. (2005) 1 SCC 625. (2005) 1 SCC 625. 20. The circulars of the University and the Resolutions of the State Government permit dereservation. The post was available for de-reservation in the year 2001. The respondent nos. 1 and 2 had substantially complied with all the requirement and applied in the year 2003. Once there was substantial compliance merely because interchangeability had not been provided in 2001 would not result in denying to the petitioner right of consideration of his case for being treated as regularly appointed in the year 2001. In the 6th year of advertisement, no reserved category candidate applied even though the post was advertised as reserved for S.C.. The respondent management advertised interchangebility in the year 2003, whereas they ought to have advertised the same in the year 2001 itself. In 2003 also no reserved category candidate applied. Once there was the provision for de-reservation, a candidate duly selected after complying with the procedure had a legitimate expectation that his case would be fairly and reasonably considered -: 17 :- by the university and the government in terms of the circulars and G.R. respectively. Even if we consider that the clause pertaining to interchangeability had not been notified in 2001, the same was notified at least in the year 2003. The petitioner, therefore, had a legitimate expectation based on the government G.R. and the circulars of the University that the post he held would be put up for dereservation and his case would be considered accordingly. This legitimate expectation of the petitioner, cannot be frustrated either by failure of the institution or university to forward the proposal in time to the State or for the State to consider the proposal. In our opinion, once this court had judicially recognised the principle of substantial compliance the case of the petitioner had to be considered as of the year 2001. The respondent no.5 had applied in the year 2004 though the clause of interchangeability had also been advertised in the year 2003. The action of the respondent no.4 in rejecting the case for de-reservation and granting approval to the appointment of the respondent no.5 has to be set aside considering the legitimate expectation of the petitioner. 21. Considering the facts on record, in our opinion, this is not a fit case to refer the matter back to the respondent no.4, considering our earlier findings, as in -: 18 :- the meantime the post has been abolished and the services of the petitioner were terminated. The petitioner however, even considering that his case could be considered in 2001 or even in 2003, would be entitled to a declaration of being a confirmed employee and consequently entitled to be absorbed in any other institution. The petitioner consequenlty would be entitle to be treated as regularly appointed in the year 1996-97 and confirmed in the year 1998-99. It would, therefore, be appropriate that the respondent no.4 is directed to pass an order dereserving the post held by the petitioner as of 2001 and for the respondent no. 3 to grant approval to the appointment of the petitioner accordingly. The respondent no.4 to act within two months of this order. The respondent no.3, thereafter, to grant approval within one month thereafter and communicate the same. 22. Though the petitioner’s service has been terminated on the ground of the post having been abolished, considering that the petitioner is entitled to be considered