1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2677 OF 1995 1. Mrs. Neeta Saneev Dighe, ) H4/014, Asarwari, Lokpuram, ) Smt. Gladys Alwaris Road, ) Opp. Pokharan Road No.2, Thane (W) ) 2. College and University Teachers Welfare ) Society, a registered Society, having its ) Office at Mansula, Ground floor, General ) Ram Gadkari Road, Naupada, ) Thane – 400 602. ) ....Petitioners V/s. 1. Padamshri Annasaheb Jadhav Bharatiya ) Samaj Unnati Mandal, Bhiwandi, ) Dist. Thane. ) 2. Principal, B.N.N. College of Arts, ) Science & Commerce, Bhiwandi. ) 3. University of Bombay, Bombay. ) 4. G.M. Deshpande, c/o. B.N.N. College ) of Arts, Science & Commerce,Bhiwandi ) 5. State of Maharashtra, ) Department of Higher & Technical ) Education, Mantralaya, Bombay. ) ....Respondents Mr. Mihir Desai for the Petitioner. Mr. Sachin C. Raje h/f S.S. Pakale for the Respondent No. 2. 2 CORAM : S.J. VAZIFDAR, J. DATED : 11TH JANUARY, 2010. ORAL JUDGMENT. :- 1. The Petitioner has challenged an order of the College Tribunal for Bombay and S.N.D.T. Womens’ University dated 30th March, 1995, dismissing her appeal under section 58 of the Maharashtra Universities Act, 1994. 2. Respondent No.2 is the Principal of B.N.N. College of Arts, Science and Commerce. Respondent No.3 is the University of Bombay. Respondent No.4 has been appointed in the year 1992-1993 as a lecturer in botany. Considering the nature of the order I intend passing, respondent No.4 would not been affected, at least at this stage. 3. The Petitioner has acquired the B.Sc. and M.Sc. degree in botany. She served as a lecturer in botany in said the college, which is affiliated to Respondent No.3/University of Bombay. On 29th November, 1990, the Petitioner was appointed as a lecturer in botany on a temporary basis upto 20th April, 1991. Two posts of lecturer were shown as reserved posts. The first post was advertised for the first time. 3 The advertisement for the second post stated that it was to be de- reserved. The Petitioner is a candidate from the open category. She applied for the post and was interviewed by the selection committee. The Petitioner was appointed to the reserved post by a letter dated 25th August, 1991, effective from 19th August, 1991. The appointment was on a temporary basis upto 20th April, 1992. On 10th August, 1992, the Petitioner was again appointed to the said post for the period 20th June, 1992 to 20th April, 1993. 4. The Petitioner contends that even thereafter during the academic year 1993-1994, she joined duty on 21st June, 1993 and was even issued a time-table. She claims to have, accordingly, held lectures. She has alleged various acts done by her pursuant thereto. It is her grievance that she was, however, not allowed to sign the muster roll and that after she addressed a letter to the Principal, she was not permitted to hold any further lectures. She thus claims that her services were orally terminated on 25th July, 1993. The Petitioner’s appeal, in which the impugned order was passed, was filed on 5th August, 1993. 5. There are four posts of lecturers in botany. Submissions were made before the Tribunal as to which of the posts the Petitioner was appointed to. However, as rightly held by the Presiding Officer of 4 the College Tribunal, it is immaterial to which post she was appointed. As on date, the question of available backlog also does not survive. The Tribunal, by an interim order, protected the Petitioner’s services. The same was continued by this court pending hearing of this petition. 6. There is no dispute that the Petitioner was appointed to a reserved post. Thus, whether she was appointed to post No.3 or post No.4 makes little difference, at least today. It is also admitted that the Petitioner belongs to the open category. Accordingly, it is common ground that the appointments by the college of the Petitioner were on purely temporary basis to the said reserved post. 7. It was contended on behalf of the Petitioner before the Tribunal that the said post was advertised more than five times, but that no candidate from the reserved category either applied for or was found eligible for being appointed to the said post. It was contended that the post must, therefore, be deemed to have been de-reserved in the year 1989. Consequently, the Petitioner’s appointment must be deemed to be confirmed in the said post. Accordingly, it was submitted that the oral termination of the Petitioner’s services on 26th July, 1993, is illegal. 8. The Tribunal rightly came to the conclusion that in that 5 event, it was for the Petitioner to have taken steps within a reasonable time to obtain a declaration that her appointment after 1989 being purely temporary was illegal. However, even after the advertisements were issued for the said post, specifying the same to be a reserved post, the Petitioner took no such steps. 9. The Tribunal also rightly construed the Government circulars and held that the post could not be deemed to be de-reserved merely because it had not been filled in by a person from the said reserved category. The circulars provided the process by which such posts are to be de-reserved. In paragraph 12 of the impugned order, the Tribunal has set out the entire process. Under the 1987 circular, if in response to the third advertisement in the third year, no application is received for the reserved post from candidates belonging to the reserved categories, the college authorities must start the process of de- reservation of the said post. After the process of de-reservation is completed, the appointment of a candidate from the open category shall be deemed to be on probation with retrospective effect from the date of his initial appointment and that his appointment shall be confirmed from the date of completion of two years of continuous appointment. There is no dispute that this process has not been implemented. In fact, there is nothing on record which suggests that the process has even 6 commenced. 10. The Petitioner, therefore, finds herself in an unfortunate predicament. Though she has been in service throughout by virtue of the interim passed by the Tribunal and by this court, she has not been receiving the benefits due to a regular employee for all these years. Further, since she is left in a state of uncertainty as the process of de- reservation has not even commenced, it is only reasonable that the Petitioner knows as expeditiously as possible, where she stands. The delay has already prejudiced her considerably. 11. The said circular of 1987 read with the circular of 1990 requires the college authorities to commence the process. In the circumstances, while the order of the Tribunal cannot be faulted for declining the application for a declaration that the post stands de- reserved for the reasons aforesaid, it is necessary that the college, the university and the other authorities, complete the process of de- reservation and inform the Petitioner accordingly. If, for instance, it is held that the post is deemed to have been de-reserved as alleged by the Petitioner, it would be open to the Petitioner to contend that her appointment be confirmed in the said post as of 1989-1990 itself. In that event, she may be entitled to all the benefits. 7 12. In the circumstances, the Writ Petition is disposed of by the following order: The Respondents and the other authorities are directed to commence and complete the process for de-reservation of the said post. The authorities shall permit the Petitioner to make her representations to them before taking any final decision on whether or not to de-reserve the said post as well as the consequences of the de-reservation, if any, on the Petitioner’s employment with the said college. The process shall be completed on or before 31st July, 2010. The Respondent and the other authorities shall communicate the decision in writing to the Petitioner. The authorities shall decide the question without being influenced by the impugned order and the observations made therein. Till the decision is taken and for a period of twelve weeks thereafter, the Petitioner’s employment shall not be affected if the decision is adverse to the Petitioner. There shall be no order as to costs.