1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO.3540 OF 2005 Sanjay Raghunath Gadakh ] Residing at 14, Ashirwad Park, ] Mate Nursery Road, ] Savarkar Nagar, Gangapur Road, ] Nashik – 422 013. ] ...Petitioner Versus 1.N.D.M.V.P.Samaj ] through its Secrtary, ] Office at: Central Office, ] Gangapur Road, Shivajinagar, ] Nashik-422 002. ] ] 2.K.T.H.M. College ] through its Principal, ] Nashik-422 002. ] ] 3.University of Pune ] through its Registrar, ] Ganeshkhind, Pune-411 007 ] ] 4.Joint Director of Higher Education] Pune Region, Camp:Pune ] ] 5.State of Maharashtra ] through its Department of Higher ] & Technical Education, ] 2 Mantralaya Annexe, ] Mumbai-400 032 ] ...Respondents WITH CIVIL WRIT PETITION NO.3515 OF 2005 Sudam K.Marathe ] Age: 38 years ] Residing at 7, Amod Housing Society] Near Rathi Amrai, Shrirangnagar, ] Gangapur Road, Nashik-422 013 ] ...Petitioner Versus 1.N.D.M.V.P.Samaj ] through its Secrtary, ] Office at: Central Office, ] Gangapur Road, Shivajinagar, ] Nashik-422 002. ] ] 2.K.K. Wagh College ] through its Principal, Pimpalgaon(B), ] Tal: Niphad, Nashik ] ] 3.University of Pune ] through its Registrar, ] Ganeshkhind, Pune-411 007 ] ] 4.Joint Director of Higher Education] Pune Region, Camp:Pune ] ] 5.State of Maharashtra ] through its Department of Higher ] 3 & Technical Education, ] Mantralaya Annexe, ] Mumbai-400 032 ] ...Respondents WITH CIVIL WRIT PETITION NO. 3541 OF 2005 Sampat Shankar Demse ] Residing at 6, ] Jai Yogeshwar Housing ] Society, Kamatwada Shivar ] Near Godawari Urban Bank ] Pawan Nagar, CIDCO ] Nashik 422 008 ] ...Petitioner Versus 1.N.D.M.V.P.Samaj ] through its Secrtary, ] Office at: Central Office, ] Gangapur Road, Shivajinagar, ] Nashik-422 002. ] ] 2.K.R.T Arts, BH Commers & ] AM Science College ] through its Principal, ] Nashik-422 002. ] ] 3.University of Pune ] through its Registrar, ] Ganeshkhind, Pune-411 007 ] ] 4.Joint Director of Higher Education] Pune Region, Camp:Pune ] 4 ] 5.State of Maharashtra ] through its Department of Higher ] & Technical Education, ] Mantralaya Annexe, ] Mumbai-400 032 ] ...Respondents CIVIL WRIT PETITION NO. 5899 OF 2006 WITH Smt.Sangita Karbhari Jadhav ] Residing at C/o.Prof.N.M.Kadam, ] 7,Vaishnavi Apartments, ] Near Ram Mandir, Pumping Station ] Gangapur Road, Nashik-422 013. ] ...Petitioner Versus 1.N.D.M.V.P.Samaj ] through its Secrtary, ] Office at: Central Office, ] Gangapur Road, Shivajinagar, ] Nashik-422 002. ] ] 2.K.T.H.M. College ] through its Principal, ] Nashik-422 002. ] ] 3.University of Pune ] through its Registrar, ] Ganeshkhind, Pune-411 007 ] ] 4.Joint Director of Higher Education] Pune Region, Camp:Pune ] 5 ] 5.State of Maharashtra ] through its Department of Higher ] & Technical Education, ] Mantralaya Annexe, ] Mumbai-400 032 ] ...Respondents WITH CIVIL WRIT PETITION NO. 5919 OF 2006 Sirsath Samanath Raghunath ] Age: 38 years, ] Residing at Veer Savarkar Nagar ] Near Bus Stand, 'Kundan Vihar' ] Satana, Tal: Satana, Dist:Nashik ] ...Petitioner Versus 1.N.D.M.V.P.Samaj ] through its Secrtary, ] Office at: Central Office, ] Gangapur Road, Shivajinagar, ] Nashik-422 002. ] ] 2.K.A.A.N.M.Sonawane Arts, ] Science & Commerce College ] through its Principal, Satana ] Nashik-422 002. ] ] 3.University of Pune ] through its Registrar, ] Ganeshkhind, Pune-411 007 ] ] 4.Joint Director of Higher Education] 6 Mumbai Region ] Elphinstone Technical School ] Mahapalika Marg, Mumbai-1 ] 5.State of Maharashtra ] through its Department of Higher ] & Technical Education, ] Mantralaya Annexe, ] Mumbai-400 032 ] ...Respondents Mr.Mihir Desai for Petitioners Mr. K.Y.Mandlik for Respondent 1 Mr.Girish Kulkarni with Ms.Swati Deshmukh i/b.Mrs.M.G. Kulkarni for Respondent 3 Mr.V.S.Gokhale for Respondents 4 & 5 CORAM: SMT.RANJANA DESAI & SMT.ROSHAN DALVI, JJ. DATED: 27TH FEBRUARY, 2008 ORAL JUDGMENT (Per Smt. Ranjana Desai, J.) 1. Learned Counsel for the parties are agreed that this group of petitions involve similar facts. Except the date of appointment of each petitioner all facts are almost similar. Learned Counsel are also agreed that our judgment in one petition will cover the other petitions. Hence, we propose to dispose of these petitions by a common order. We shall treat Writ Petition No.3540 of 2005 as the lead petition. 7 2. The petitioner is employed with the 2nd respondent college as a Lecturer. The 1st respondent trust is running the 2nd respondent college. Respondents 3 and 4 are the authorities who are concerned with de-reservation of posts. Respondent 5 is the State of Maharashtra. 3. Admittedly the petitioner is M.Sc.(Physics) B+, Ph.D, ADCSSA and is qualified for the post of lecturer in Physics/Electronics. He is from open category. He was appointed by the 1st respondent on 17th September 1990 pursuant to an advertisement and selection by a duly constituted selection committee, to a reserved post on temporary basis since there were no candidates from reserved category available. His services were terminated at the end of the academic session 1990-91. In 1991 he was once again appointed to the same reserved post, as even on publishing an advertisement for the second time no candidates from Backward Category were available. His services were terminated on the expiry of academic year 1991-92. He was once again appointed against a reserved post for the academic year 1992-93 for the same reason that no candidate from Backward Category was available. His appointment was once again terminated by the end of the academic year. From 1993 to 2002 he was again appointed 8 to the same reserved post as a temporary appointee on account of non-availability of Backward Category candidate. 4. According to the petitioner, the appointment letter which was issued by the 1st respondent in 2003 stated that his period of appointment for the academic session of 2003-04 is from 23rd June 2003 to 20th October 2003 and that a proposal to convert his appointment into open category has been sent to 3rd and 5th respondents i.e. Pune University & State of Maharashtra respectively. 5. It is the case of the petitioner that the Registrar of Pune University approved his appointment for the academic years 1990-91,1991-92,1993-94 and 1994-95. 6. According to the petitioner, he holds the post of lecturer in Physics/Electronics, which has been reserved for Backward Category since 1990. In 1990 the 1st respondent had advertised the posts of lecturer in Physics, inviting candidates to form a waiting list. In 1991 another advertisement was issued for posts of lecturer in Physics/Electronics reserved for SC, ST, DT/NT and a few open category posts for the academic year 1991-1992. The said advertisement provided that if no candidate from above- 9 mentioned Backward Class is available then such posts will be made available to open category candidates. 7. In 1992 the 1st respondent published 3rd advertisement inviting applications from SC, ST and DT/NT category for the post of lecturer in Physics/Electronics and in the alternative kept such post open to all other categories. In 1993, 4th advertisement was published for the posts of lecturer in Physics/Electronics reserved for SC and ST and in the alternative for all other candidates on temporary basis. In 1994 5th advertisement was published for the post reserved for SC and ST. In 1995 similar advertisement was published for the posts of lecturer in Physics/Electronics. In 1995, 6th advertisement was published. Copies of all the advertisements are annexed to the petition. We have gone through the same. 8. At this stage it is necessary to refer to G.R dated 25th January 1990. By this G.R Government of Maharashtra declared that instead of reservations for three years, the reserved posts may be reserved for five academic years and in the following sixth year the post may be kept open and the suitable candidate may be confirmed in that post. 10 9. According to the petitioner since by 1995 six advertisements were published, as per GR dated 25th January 1990 proposal for de-reservation of such reserved post should have been forwarded to the 3rd respondent in 1994 itself. The 1st respondent applied for de-reservation only on 13th December 2000. It also addressed a letter to the State Government on 30th December 2000 on the issue of de- reservation of the reserved post in issue. Again in the year 1996 and 1997 advertisements were published though no offer to post of lecturer in Physics/Electronics was received. On 22nd May 2003 the 1st respondent advertised two reserved posts of lecturer of Physics/Electronics, viz. 1 ST and 1DTA in DT/NT category. A proposal for de-reservation was sent in 2000 but nothing was done by the respondents. Again in 2003 another advertisement was issued. 10. In the circumstances as the post was not being dereserved the petitioner filed Writ Petition No.8705 of 2003 in this Court. The said writ petition was disposed of by the Division Bench of this Court on 5th August 2004 and 29th September 2009. This Court inter alia observed that though the recommendations have been made by the University, the matter is pending adjudication by the Government of Maharashtra. This Court directed the State Government to 11 consider each case and decide the recommendation made by the University and the colleges concerned regarding the requisition of the employment of the petitioner within a period of two months from the date of receipt of the order from this Court. This Court observed that in case recommendation is not forwarded by the University, it may be done within a period of two months from the date of the order. 11. Admittedly the State Government has not taken any action as directed by this Court. Affidavit in reply is filed by Bhimsingh Kanhiram Usare, Deputy Secretary to Government in Higher and Technical Education Department, Mantralaya, Mumbai. In this affidavit it is stated that after the above order was passed by this Court the 3rd respondent sent a proposal to the State Government by letter dated 22nd November 2004. After scrutiny of the proposal, the Government of Maharashtra made a query and requested the 3rd respondent i.e., the University to comply with those queries, vide Government letter dated 29th November 2004 and requested the University to send a self-contained proposal of all the petitioners. It is stated in the affidavit that the University did not reply to the said letter well in time. It is further stated that by letters dated 31st December 12 2004 and 30th September 2005 the University has informed about issues regarding de-reservation of some other posts. However, the University has not clarified the query made by the 5th respondent and therefore, the State is unable to take proper decision. It is further stated that as per the policy laid down by the Government in G.R dated 5th December 1994, the concerned institution has not advertised the post showing interchangeability. It is further stated that unless a self-contained proposal is received by the 5th respondent, it is not in a position to take appropriate decision on the proposal. It is further stated that the 3rd respondent has not sent a self-contained proposal specifying the category-wise reservation and subject-wise position to the 5th respondent and it has not even processed the interchangeability and therefore the 5th respondent is unable to take a proper decision in the matter. 12. Mr. Desai learned Counsel for the petitioner contended that this is a fit case where this Court should order dereservation. Mr. Gokhale, learned Counsel for the State has reiterated the points raised in the affidavit of Mr. Usare. Mr. Kulkarni, learned Counsel appearing for the University, has on the other hand contended that the University has complied with the letter issued by the State Government 13 making certain queries. He pointed out that vide letter dated 28th January 2005 the University has informed the State Government that the 1st Respondent vide its letter dated 31st December 2004 has given necessary clarification/ explanation regarding the alleged shortcomings. A copy of letter dated 31st December 2004 was forwarded to the State Government. 13. It is necessary to note what queries the State Government had raised in the letter dated 29th November 2004. We may quote the same as under: (1)“No objections certificates from 7 employment exchange offices have not been obtained stating that qualified backward class candidates are not available and the same are not enclosed with the proposals. (2) As provided in Government Resolution dated 5th December 2004, the procedure of filling up the Reserved Posts by exchange does not seem to have been adopted.” 14. The 1st respondent vide letter dated 31st December 2004 has answered these queries. We have perused the copy of the said letter which is annexed to the petition. It is stated in this letter that the 1st respondent had every year 14 demanded for the list of backward class candidates by registered letters addressed to various offices. Some of the offices to whom the Society had requested for giving the list of backward class candidates, have addressed letters to the offices coming under their jurisdiction directing them to provide such lists to the 1st respondent. However these offices have not provided to the 1st respondent their No Objection in clear terms. In this letter the 1st respondent has further stated that the petitioner's appointment is made prior to 1994 and for such appointment the provision of G.R dated 25th January 1990 are applicable. The letter further recites that the 1st respondent has submitted the proposal to convert the said post into Open Category post in accordance with G.R dated 25th January 1990. In our opinion this letter indicates that the 1st respondent has made efforts to ascertain from various societies as to whether any backward class candidates were available or not and since there was no positive response it submitted proposal to convert the said post into open category post. 15. Mr. Mandlik, learned Counsel appearing for the 1st respondent confirms that no list of backward class candidates was received by the 1st respondent though efforts were made by the 1st respondent. In our opinion there is 15 sufficient compliance of the requirements by the 1st respondent. 16. So far as the aspect of inter-changeability is concerned in the said letter dated 31st December 2004 it is stated that the appointment of the petitioner is of the period prior to the year 1994. G.R introducing the concept of inter- changeability is dated 5th December 1994. By the time this G.R was published the 5th advertisement as required by G.R dated 25th January 1990 had already been published. Therefore, this G.R dated 5th December 1994 is not applicable to the petitioner' s case. 17. On a fair reading of this G.R we are of the opinion that this G.R cannot have retrospective effect at least in the peculiar facts and circumstances of this case where the petitioner is working with the 1st respondent since the year 1990 and by the time this G.R came about 5 advertisements were already issued as per G.R dated 25th January 1990. However no backward class candidate was available. It is important to note that as per the G.R which was applicable during the relevant period the post had to be de-reserved prior to the coming into force of G.R dated 5th December 1994. The State by its inaction has allowed time to pass by. 16 It cannot now take up a stand that in view of G.R dated 5th December 1994 bringing in concept of interchangeability the said post cannot be dereserved. State has to adopt a fair approach while dealing with people. 18. Our attention is drawn by Mr. Desai, learned Counsel for the petitioner to a judgment of this Court in Ashok Chandrashekar Rao Vs. University of Mumbai in Writ Petition No.3101 of 2004, decided on 26th April 2005 by the Division Bench of Mr. Justice F.I. Rebello & Mr. Justice S.P. Kukday. It was argued in that case that there was no specific indication in the advertisement whether the posts were reserved for reserved categories. This Court referred to its earlier judgments and observed that in the event there is sufficient compliance with the procedure and so long as there were no malafides and the attempt was not to protect candidates from the forward categories, ordinarily the Government ought to dereserve the post. In this case we do not find that action of the 1st and 3rd respondents is actuated by malafides or there is any attempt to protect candidates from the forward categories. The petitioner has worked till this date against the post reserved for reserved category without being confirmed. Attempts made to get a reserved category candidate have failed. In our opinion this 17 is a fit case where a direction should be given to the respondents to dereserve the post. 19. Our attention is drawn by Mr. Desai to the circular dated 11th March 1987. It says that if in response to the third advertisement in the 3rd year, no application is received for the reserved post from candidates belonging to SC,ST,DT or NT categories, the college authorities shall start the process of dereservation of the reserved post. It further states that after the process of dereservation of the post is completed, the appointment of non-backward class teacher 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. 20. In this case the petitioner was appointed on 17th September 1990. Two years from his initial appointment got over on 17th September 1992. The petitioner will have to be treated as permanent full time employee from 17th September 1992. 21. In the circumstances we pass the following order: 18 ORDER 1. The respondents are directed to de-reserve the post occupied by the petitioner in accordance with the G.R dated 25th January 1990 and treat the petitioner as a permanent full time employee from 17th September 1990. Needless to say the petitioner will be entitled to all consequential benefits from that date. 2. Writ Petition No.3540 of 2005 is disposed of accordingly. 3. There is no dispute that the facts involved in this petition are similar to Writ Petition No.3515 of 2005, Writ Petition No.3541 of 2005, Writ Petition No.5899 of 2005 and Writ Petition No.5919 of 2005 except the date of appointment of each petitioner. Hence, these petitions will have to be disposed of in terms of Writ Petition No.3540 of 2005. Order accordingly. 4. Needless to say that all civil applications are also disposed of. (SMT. ROSHAN DALVI, J.) (SMT.RANJANA DESAI, J.)