1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2219 OF 1994 Ms. Pushpalata Dattatraya Divate, ) residing at C/o. Divate D. A, At & Post Bhedgi, ) Tal. Sawantwadi, Dist. Sindhudurg. ) ... Petitioner Versus 1. The Principal, ) Barrister Khardekar College of Arts, Science ) & Commerce, Vengurla 416 516. ) 2.. Shikshan Prasarak Mandal, Kolhapur, ) C/o. Barrister Khardekar College, ) Vengurla 416 516. ) 3. Ramakant M. Sawant, ) C/o. Barrister Khardekar College of Arts, ) Science & Commerce, Vengurla 416 516. ) 4. The Presiding Officer, ) College Tribunal for Bombay and S.N.D.T. ) Universities of Bombay. ) 5. State of Maharashtra, ) through the Department of Education & ) Employment, Mantralaya, Bombay 400032. ) ... Respondents Mr. Mihir Desai for the Petitioner. Mr. P.W. Chawan for the Respondents No.1 and 2. Mr. N.K. Desai for the Respondent No.3. 2 CORAM: S.J. VAZIFDAR, J . DATED : 3RD FEBRUARY, 2010. ORAL JUDGMENT. : 1. The Petitioner has sought a writ of certiorari to quash and set aside the order and judgment of the College Tribunal dated 14th December, 1993 to the extent that it did not set aside the order terminating the Petitioner’s services and refused to grant back wages and continuity of service. 2. Respondent No.1 is an aided and recognised degree college affiliated to the University of Bombay. Respondent No.2 - Shikshan Prasarak Mandal is a registered society and a Trust, which manages the first Respondent college. Respondent No.3 Ramakant M. Sawant was appointed as a Librarian in the first Respondent college in place of the Petitioner in 1994. 3. By a letter dated 30th November, 1987, the college informed the Petitioner that she had been appointed to the post of Librarian in the time scale of Rs.425-15-500-EB(Efficiency Bar)-15-560-20-700 with 3 effect from 2nd December, 1987. Clause 2 of the letter stated that the Petitioner’s appointment was purely on a temporary basis for the academic year 1987-1988 i.e. till 19th June, 1988. The Petitioner accepted the appointment. 4. In the year 1986, an administrator was appointed in respect of the college for reasons that are not material for the purpose of this judgment. 5. Though as per the letter dated 30th November 1987, the Petitioner’s appointment came to an end on 19th June, 1988, she was asked to continue to perform her duties till 7th July, 1988. From 8th July, 1988 to 30th August, 1988, the Petitioner was on maternity leave. 6. On 8th August, 1988, advertisements were published by the college inviting applications for the post of Librarians. The Petitioner submitted an application for the said post. A selection committee was constituted by the Administrator to interview the applicants. The Petitioner was interviewed for the said post on 31st August, 1988 by the said selection committee. Pursuant thereto, she was orally asked 4 to join duties on 2nd September, 1988, allegedly on the assurance that the appointment letter would be issued in due course of time. The Petitioner, accordingly, started working in the said post from 2nd September, 1988. She signed the muster roll from 2nd September, 1988 to 8th December, 1988. 7. The Petitioner has alleged that on 9th December, 1988, she found a remark in the muster roll that she should not sign the same till further orders. The Petitioner has further alleged that she was informed by the Principal that despite the same, she should continue to perform her duties as a Librarian and that the signing of the muster was stopped in view of certain difficulties faced by the college on account of a doubt about the appointment of employees due to the zero-based budget approach of the State Government. The Petitioner, accordingly, worked without signing the muster roll from 9th December, 1988 till 28th December, 1988. 8. From 29th December, 1988, the Petitioner was asked to perform other duties. From 27th January, 1989, the Petitioner once again worked in the Library. From 3rd March, 1989, the Petitioner worked in 5 the Examination Department in addition to the work in the Library. 9. By a letter dated 21st July, 1989, the Administrator informed the Principal that the services of the Petitioner were necessary and that her appointment was approved with retrospective effect from 7th December, 1988. This, it was agreed, was the correct translation of the letter which is in Marathi. 10. Subsequently, appointment letters dated 20th August, 1990, 20th August, 1990, 31st March, 1991, 19th July, 1991 and 4th November, 1991, were issued to the Petitioner appointing her for the periods 1st September, 1989 to 28th February, 1990, 2nd March, 1990 to 31st August, 1990, 12th March, 1991 to 19th June, 1991, 21st June, 1991 to 19th October, 1991 and 22nd October, 1991 to 29th April, 1991, respectively. The letters stated that she was appointed to the post of Librarian in the pay scale mentioned therein or till the date the regular appointment on the post was made. 11. By a letter dated 18th April, 1991, the college called upon the Petitioner to hand over charge of the post of Librarian of the college to 6 the Principal on 20th August, 1992, after college hours. The letter stated that the order was in response to a message/order received from the secretary of the second Respondent. 12. The Petitioner filed an appeal before the College Tribunal against the said order dated 18th April, 1992. The present writ petition is filed against the order of the College Tribunal in the said appeal. 13. The first question that arises for consideration is whether the Maharashtra a Non-agricultural Universities And Affiliated Colleges Standard Code (Terms and Conditions of Service of Non-teaching Employees) Rules, 1984 (hereinafter referred to as “the Code”), are applicable to the Petitioner. The Petitioner’s case rests solely on the applicability of the Code to her. 14A. Section 77A of the Bombay University Act, 1974 (hereinafter referred to as “the BU Act”) reads as under :- “77A. Power to prescribe Standard Code for employees of University and affiliated Colleges and Recognised institutions - Notwithstanding anything contained in this Act, the State Government may, for the 7 purpose of securing and maintaining uniform standards, by notification in the Official Gazette, prescribed a Standard Code [providing for the classification, manner and mode of selection and appointment, reservation of posts in favour of members of the Scheduled Castes and Scheduled Tribes] duties, workload, pay, allowances, post-retirement benefits, other benefits, conduct and disciplinary matters and other conditions of service of the Officers, Teachers and other employees of the University and the Teachers and other employees in the affiliated Colleges and Recognised Institutions (other than those managed and maintained by the State Government). When such Code is prescribed, the provisions made in the Code shall prevail, and the provisions made in the Statutes, Ordinances, Regulations and Rules for matters included in the Code shall, to the extent to which they are repugnant to the provisions of the Code, be void.” Section 77A confers power on the State Government to prescribe a Standard Code for the purposes mentioned therein. It provides that in case of repugnancy, the provisions of the Code will prevail over those of the Statutes, Ordinances, Regulations and Rules. (B). In exercise of the powers under Section 77A, the State Government prescribed the said Code. Rule 1(2) of the Code reads as under :- “Rule 1(2) These rules shall apply to all full-time non-teaching employees of the non-agricultural Universities, and the affiliated colleges, other than those 8 managed and maintained by the State Government and Local authorities on time-scale of pay.” 15. The college managed by Respondent Nos.2 and 3 in which the Petitioner is employed, is a non-agricultural university. The question that arises is whether a Librarian is a non-teaching employee of the college within the meaning of the expression in the Code. Section 2(30) of the Bombay University Act reads thus :- “Section 2 (30) “Teacher” means a full time Professor, Associate Professor, Reader, Lecturer, Demonstrator, Tutor, Master of Method or Director of Physical Education, if any, in any conducted, constituent or affiliated College or recognized Institution in the University, and includes any other persons imparting instruction or guiding research, whether serving full time or part time or in an honorary capacity, who are designated to be Teachers by the Statutes made on the recommendation of the Academic Council. Provided that, any such Statutes may also declare that any class of persons, whether serving full time or part time or in an honorary capacity, shall not be Teachers for the purposes of this Act;” 16. The expression embodying the residual category viz. “includes any other persons imparting instruction or guiding research” indicates that it must be read ejusdem generis. The specified categories preceding the expression are posts which require the incumbents to 9 impart instruction or guide research. A distinction must be drawn between a Librarian and a teacher who imparts instructions or guides research to students studying Library Science. Whereas the latter would fall within the ambit of Section 2(30), the former would not. 17. The Maharashtra Universities Act, 1994, in contrast, defines “teacher” to include a Librarian. Section 2(34) of the Maharashtra Universities Act, 1994, reads as under :- “2(34) “teacher” means full-time approved professor, associate professor, assistant professor, reader, lecturer, librarian, [principal, deputy or assistant librarian and documentation officer in the university and college librarian] Director or instructor of physical education in any university department, conducted, affiliated or autonomous college, autonomous institution or department or recognised institution in the university;” [emphasis supplied] We are not concerned in this case with the provisions of the Maharashtra Universities Act. The difference, however, between the provisions of Section 2(30) of the BU Act and Section 2(34) of the Maharashtra Universities Act indicates that the Legislature, while enacting the BU Act, did not include within the ambit of the definition of teacher under Section 2(30), Librarians. 10 18. Mr. Chawan, the learned counsel appearing on behalf of the Management relied upon Rule 2(27) of the Code in support of his contention that a Librarian does not fall within the ambit of the expression “non-teaching staff”. Rule 2(27) reads as under :- “2(27) “Non-teaching employee” means the person in employment of the University or the affiliated colleges as the case may be, and appointed on a time-scale of pay other than “the teachers” or the “teachers of the University”.” 19. According to him, sub-rule (27) indicates that a non-teaching employee is one who is appointed on a time-scale of pay other than time-scale of pay of “the teachers”. Thus, according to him, if the time-scale of pay of a Librarian is the same as the time-scale of pay prescribed for any teachers, the Librarian cannot be considered to be a non-teaching employee. In other words, according to him, it would only be Librarians whose time-scale of pay is different from the time- scale of pay of teachers who could be considered to be non-teaching employees. 20. Mr. Chawan’s construction rewrites sub-rule (27). Rule 2(44) 11 of the Code defines time-scale of pay as under :- “2(44) “Time-scale of Pay” means pay which subject to any conditions prescribed in these rules rises by periodical increments from a minimum to a maximum.” Rule 2(27) applies to a person including a Librarian who is employed in a time-scale of pay. In other words, if any person, including a Librarian, is not appointed on a time-scale of pay, he would not fall within the ambit of the expression “non-teaching employee”. Further, Rule 2(27) excludes “the teachers” and “teachers of the University” altogether to wit it excludes even those teachers who are appointed on a time-scale of pay. It was necessary to provide : “other than the teachers or the teachers of the University” to make it clear that non-teaching employees, even though appointed on a time- scale of pay would not include teachers. There can be an appointment on a fixed salary for a fixed period of any person including Librarians, Professors, Teachers etc. Thus a non-teaching employee would mean any person employed, inter alia, in affiliated colleges if appointed on a time-scale of pay, but would not include teachers including those appointed on a time-scale of pay. 12 21. Mr. Chawan relied upon a Government Resolution dated 3rd April, 1991. He translated the same to state that Librarians are in the non-teaching category, but had not yet been included in the Standard Code. Even assuming this translation to be correct, it cannot bind a court interpreting statutory provisions embodied in the said Acts and the Code. 22. In this connection, it is interesting to note that by a communication dated 21st August, 1991, the Registrar of the University of Bombay informed a Principal of another college that a Librarian is not considered as an employee of the teaching staff and, therefore, the rules of selection/promotion applicable to teachers are not applicable in the case of Librarians. The letter further stated that as a Librarian of a college is considered non-teaching staff, the appointment of a Librarian is to be made as per the procedure laid down in the Standard Code for non-teaching employees in the colleges/Universities in the State of Maharashtra. 23. Mr. Chawan then submitted that even assuming that Librarians 13 were, at one time, considered to be non-teaching employees they were taken out of the purview of the Standard Code in the year 1987. He relied, in this connection, upon a circular dated 17th January, 1987, issued by the Vice Chancellor of the University of Bombay in exercise of powers under Section 11(6)(b) of the BU Act. Section 11(6)(b) reads as under :- “Section 11(6) (a) ........ (b) Where any matter is required to be regulated by the Statutes, Ordinances or Regulations, but no Statutes, Ordinances, or Regulations are made in that behalf, the Vice-Chancellor may, for the time being, regulate the matter by issuing such directions as he thinks necessary, and shall, at the earliest opportunity thereafter, place them before the Executive Council or other Authority or body concerned for approval. He may, at the same time, place before such authority or body for consideration the draft of the Statutes, Ordinances or Regulations, as the case may be, required to be made in that behalf.” 24. The circular, however, does not support Mr. Chawan’s contention. I will presume that the circular is duly issued under Section 11(6)(b). It directs that the academic status be accorded to college Librarians as follows : 14 “(i) To consider them non-vocational academic staff, (ii) To consider them eligible for all the benefits and privileges of other academic staff of the College with regard to, among others, study leave, participation in Conferences and Seminars and study leave for improving their qualifications, both academic and professional.” The circular does not take Librarians out of the purview of the Standard Code. It merely confers upon the Librarians, certain benefits which were applicable to other academic staff. 25. It is indeed doubtful whether Section 11(6)(b) confers powers to amend the provisions of the Standard Code. However, considering the construction I have placed on the circular, it is not necessary for me to decide this question. 26. In the circumstances, it must be held that Librarians are non teaching employees of the colleges. The provisions of the Standard Code, therefore, apply in the Petitioner’s case. 27. Mr. Desai, the learned counsel appearing on behalf of the Petitioner submitted that under the Code, a substantive vacancy in a 15 permanent post must be filled by an eligible candidate only on probation by a Selection Committee. In other words, according to him, an eligible candidate cannot be appointed on a temporary basis in respect of a substantive vacancy in a permanent post. Consequently, he submitted that if in such a case an eligible candidate is wrongly appointed on a temporary basis, he must be deemed/considered to have been appointed on probation for the college cannot take advantage of its own wrong. The submission was based on Rules 2(39), (42), 7 and 8 of the Code which read as under :- “Rule 2(39) “Substantive appointment” means an appointment made in a substantive or permanent capacity in a permanent post which is clearly vacant or on which another persons holds a suspended lien. Rule 2(42) “Temporary appointment” means an appointment of a non-teaching employee on a purely temporary basis or for a stipulated period against a permanent post or a tenure post or a temporary post. Rule 7 - Probation (1) The employee appointed to a permanent post by selection shall be on probation for a period of two years. The Competent Authority may, in exceptional 16 circumstances, reduce the period of probation upto one year, after reviewing his confidential reports; Provided that the employee appointed to officiate in higher post for a temporary period shall not be considered to be on probation. Rule 8 - Substantive Appointment (1) A person shall be appointed on probation only against a substantive vacancy and on completing his probation period satisfactorily, he shall be confirmed in the service of the University or the College by an Order of the Competent Authority.” 28. Mr. Chawan invited me to proceed on the basis that the post of a Librarian to which the Petitioner was appointed was a permanent post and that the vacancy was a substantive one. The questions that then remain for consideration are :- (1)Whether the Petitioner was appointed by a duly constituted Selection Committee? (2) Whether the Petitioner was eligible to be appointed to the post of a Librarian?; and (3)Whether the Petitioner’s appointment, though on a temporary basis, must be deemed to be on probation? 17 29. Although I have answered the second question in the Petitioner’s favour, I have answered the third question in the negative inter alia on the basis of a judgment of a Division Bench of this court. It is not necessary, therefore, to answer the first question. 30. As stated above, the Petitioner was appointed pursuant to the advertisement dated 3rd August, 1988, by the Selection Committee which, I will presume, was duly constituted. The question, however, at this stage is whether she was eligible to be appointed. This question must be answered with reference to the Government Resolution dated 18th April, 1984, which was in operation when the Petitioner was appointed as a Librarian. As per the eligibility criteria stipulated in this Government Resolution, the Petitioner was not qualified. 31. At the time of her selection, the Petitioner had obtained the B.A., M.A. & B.Lib. degrees in the second class. Clause C of the circular dated 18th April, 1984, pertains to College Librarians and reads as under : C) College Librarians 18 6) Librarian Rs. Rs. (a) 700-1300 (a) 700-40-1100 1st or 2nd Class B.A./ (b) 700-1100 -50-1600 B.Sc./B.Com.degree (c) 550-900 plus 1st or 2nd Class (d) 425-700 M.Lib.Sc.Degeee or 1st or 2nd Class M.A./ M.Sc./M.Com.degree and 1st or 2nd Class B.Lib. Science or a Diploma in Lib.Science. For those incumbents who do not fulfil the condition of above qualifications the existing four scales of pay viz.Rs.700-1300, 700-1100 -550-900 and 425-700 as laid down the G.R. dated 18th September, 1980 men- -tioned at (ii) in the preamble will continue to be operative as per the qualifications prescribed for the respective scales.” This, however, pertains only to those persons who were already in service and not to new recruits. This is clear from Clause 2 of the circular. (The numbering of the Clauses in the circular does not appear to be accurate/does not follow a definite pattern.). Clause 2 of the said circular reads as under :- 19 “Clause 2. Minimum qualifications for future recruitment to the posts of Assistant Librarian College Librarian and Lecturer of Physics Education/Instructors of Physical Education shall be as shown in the Annexure-I to the Government Resolution.” [emphasis supplied) It is, therefore, clear that for future recruitment, the candidates were required to hold the qualification mentioned in Annexure-I. Annexure-I, in turn, required the candidate to have, inter alia, a Master’s degree in Library Science which the Petitioner admittedly did not have. In the circumstances, the Petitioner did not, in the year 1988, have the qualification as stipulated in the circular dated 18th April, 1984, to be appointed as a Librarian. 32. Mr. Desai, however, also relied upon a Government Resolution dated 14th August, 1986, clause 2 whereof reads as under : “It has been brought to the notice of Government that this Government Resolution and particularly the provisions made in Annexure I has been interpreted that future recruitment should be made only from amongst the candidates who satisfy the minimum qualifications laid down therein. It was pointed out that the managements of affiliated colleges are finding it difficult to recruit persons satisfying these qualifications for the post of college Librarians and a point was raised whether they 20 will be allowed to appoint College Librarian in the lower pay scales either Rs.700-1300 or Rs.700-1100 or Rs. 550-900 according to the qualifications laid down under Government Resolution dated 18th Sept. 1980. Government is now pleased to clarify that whenever the persons satisfying the qualifications mentioned in Annexure I accompanying Government Resolution dated 18th April, 1984 are not available the affiliated colleges are authorised to appoint persons in the pay scale of Rs. 700-1300 or Rs.700-1100 or Rs.550-900 according to the qualifications mentioned in the Government Resolution dated 18th Sept. 1980.” He submitted, therefore, that in any event the Petitioner was eligible to be appointed. 33. The submission is well founded. Even if the Petitioner was not eligible to be appointed under the Government Resolution dated 18th April, 1984, she was eligible to be appointed in view of the Government Resolution dated 14th August, 1986. 34. This leaves for consideration the last aspect of the matter viz. whether the Petitioner, having been eligible to be appointed to the post of a Librarian, must be deemed to have been appointed on probation despite the fact that her appointment letter expressly stated that she was appointed only on a temporary basis. 21 35. The Petitioner bases her claim to be eligible to the post only in view of the Government Resolution dated 14th August, 1986, Mr. Desai’s submission cannot be upheld. In support of his submission Mr. Desai relied upon a judgment of a learned Single Judge of this court in the case of Bilquis Wahab Quraishi & ors. vs. Chikitsa Samuha S.S. & L.S. Patkar College & ors. reported in 1995 (1) Bom.CR 34. However, Mr. Desai himself fairly invited my attention to the judgment of the Division Bench over-ruling the said judgment. The judgment of the Division Bench is reported in 1994 II CLR 209. In that case also, the Resolution provided that the college “may recruit a person with lower qualifications” if a person of the prescribed qualifications was not available or not considered suitable. In that case also, the employee did not have the requisite qualification, but was appointed in view of the Resolution which provided that the college may recruit a person with lower qualifications in the contingencies mentioned therein. The Division Bench held as under: “8. The principal question which falls for determination is not whether the respondent No.1 can acquire the requisite qualifications within five years or eight years but whether the respondent No.1 had 22 acquired the status of a permanent teacher. It is not in dispute that at no stage, the respondent No.1 had acquired requisite qualifications. The respondent No.1 was initially appointed as mentioned herein above on June 20, 1981. Even on that date, the respondent No.1 had not secured the requisite qualification. The minimum qualification required on that day was first class or second class (B+) Master’s degree and an M. Phil degree. The respondent No.1 had secured second class in B.Com. and also in M.Com., but did not secure the requisite marks to claim B+. It was not possible for respondent No.1 to acquire a fresh Master’s degree and consequently even if