1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3267 OF 1993 Mrs.C. Kitty Nanaya ....Petitioner V/s. Vice Chancellor, Smt.Nathibai D. Thackarsey Women’s University & Ors. ....Respondents Mr.S.S. Patwardan for the Petitioner. None for the Respondents. CORAM : S.J. VAZIFDAR, J. DATE : 8TH JANUARY, 2010. P.C. :- 1. The arguments in the matter commenced yesterday. The Respondents and their advocates were absent. The Writ Petition was therefore adjourned to today. The Respondents and their advocates are absent even today. I therefore, proceeded with matter in their absence. 2. The Petitioner has challenged the order passed by the learned Presiding Officer, Bombay and S.N.D.T. University College, Mumbai dated 2.7.1993 in Appeal No.12 of 1991 as well as the order of Respondent No.2 dated 29.1.1991 terminating her services. 3. The Petitioner was working as a lecturer in the post of Graduate Department (Science and Mathematics) with Respondent No.3, S.N.D.T. College of Education. Respondent No.2 is the Registrar of S.N.D.T. Women’s University. The Petitioner had been working with 2 Respondent No.3 since July, 1987. Her services were terminated on 4.9.1991. There is no dispute about the Petitioner’s qualification. Nor is there any dispute regarding the fact that the Petitioner has an unblemished teaching record. There were no complaints by any teachers whatsoever as against the Petitioner. The Petitioner had a first class career. The Petitioner had teaching experience in science and mathematics of about thirty years at the secondary, higher secondary and college levels, as also of the faculty of specialized subject in her subjects. Prior to 1986, she also taught the said subject abroad for about fifteen years. On her return to India, she completed her B.Ed., M.Ed. and M.Sc. courses from Pune university and obtained a first class at the post graduate level. 4(A). After completing her M.Ed, the Petitioner applied for the post of lecturer in science and mathematics in the post graduate department of Respondent No.1 – University. She appeared for the interview. By a letter dated 27.7.1987 addressed by Respondent No.1, the Petitioner was informed that she had been appointed as a lecturer in science and mathematics in the third Respondent college for a period of two months from 16.7.1987. (B). By a letter dated 23.9.1987, Respondent No.3 informed the Petitioner that she was appointed as lecturer in science and mathematics in the third Respondent on a temporary basis w.e.f. 21.9.1987 for three months. 5. Ultimately by a letter dated 22.2.1988, addressed by Respondent No.3, the Petitioner was informed that pursuant to the interview held on 19.1.1988, she was appointed to the post of lecturer in 3 Education (Science and Mathematics) at the “P.G. (Post Graduate) Department of Education” on probation for two years from 1.3.1988 subject to the conditions mentioned therein. The only condition regarding which there is a dispute between the parties, is condition No.3, which reads thus :- (3). As required by the college, you will have to gain proficiency in Marathi, during your probationary period.” The letter stated that the Petitioner’s confirmation would be considered as per the rules after she meets the conditions mentioned therein. According to the Respondents, the Petitioner has not complied with the above condition No.3. 6(A). By a letter dated 30.4.1990, the Petitioner was informed by Respondent No.3 that her request for confirmation to the post was not considered since she had not fulfilled the condition of “gaining enough proficiency in Marathi to teach the subject to your B.Ed. students in Marathi”. Respondent No.3 extended the probation period by six months to enable the Petitioner to fulfill the said condition. (B). Respondent No.2 by a letter dated 29th/30th May, 1990, addressed to the Principal of Respondent No.3, stated that the Petitioner’s case for confirmation would be finalized after a committee assessed her language competence in terms of the needs of the college. It was however stated that the Petitioner should select any topic of B.Ed. syllabus and deliver the lecture in college for about ten minutes in Marathi before the committee. (C). Respondent No.3 accordingly constituted a committed for the 4 above purpose. (D). The Registrar, by a letter dated 6.12.1990 informed the Principal of Respondent No.3 that the committee would visit the college on 12.12.1990 and would like to attend the full lecture for 40 minutes and not ten minutes as informed earlier. (E). The committee accordingly attended the lecturer held by the Petitioner. (F). By a letter dated 28th/29th January, 1991, the Registrar informed the Petitioner that the Executive Council, in the meeting held on 24.1.1990, noted that the Petitioner had not fulfilled the required condition by gaining proficiency in Marathi as per the condition stipulated in her said letter of appointment dated 22.2.1988. It is stated in the letter that the Petitioner was not fully conversant to teach in Marathi medium. The opinion was based on the observations of the committee. The Petitioner was informed that her services would be discontinued with effect from 28.2.1991. 7. In the circumstances, the Petitioner filed Appeal No.12 of 1991 before the College Tribunal for Bombay and S.N.D.T. Women’s University, challenging the termination. The Tribunal by the impugned order dismissed the appeal. 8. Mr.Patwardhan, the learned counsel appearing on behalf of the Petitioner submitted that the Petitioner had earlier pointed out to the authorities that the appointment letter did not state that she was required to reach the level of proficiency in Marathi so as to teach the said subject in Marathi medium. It is important to note that her appointment was to the 5 post of lecturer in Education at the P.G. i.e. post graduate level and not at the graduate level and that the medium of instructions in the P.G. level is English and not Marathi. 9. The question that falls for consideration is the level of proficiency in Marathi required by the Petitioner. Proficiency is a relative term. Further what was required to be considered is whether the level of proficiency in Marathi was for the purpose of teaching or for administration work or for the purpose of being able to communicate even otherwise with the staff and students. 10. It is of vital importance to note that the adverse remarks of the committee regarding the Petitioner’s lack of proficiency in Marathi pertain firstly to teaching the said subjects and secondly to teaching the said subjects to the students of B.Ed. and not at the post graduate level. At the cost of repetition, her appointment as a lecturer was for the post graduate level. 11. It is true, as noted in the impugned order, that the Petitioner did take classes for B.Ed. students. Admittedly, however that was because the lecturers of the college for B.Ed. were on strike in 1987-1989. The Petitioner was therefore, requested to take classes in place of the lecturers who were on strike. 12. The impugned order holds that proficiency in Marathi had a great significance because admittedly for graduation the medium of instructions in the university is Marathi. It is not disputed by Mr.Patwardhan that the medium of instructions for the graduate level was Marathi. What is important however is to note that the medium of instructions for the post of 6 graduation level was English and not Marathi. 13. The reference throughout the impugned order and in the communication addressed on behalf of the Respondents is to the Petitioner’s lack of proficiency in Marathi while teaching the subjects to the students of B.Ed. level i.e. graduate level. 14. There is no discussion whatsoever in the impugned order regarding lack of proficiency of the Petitioner in Marathi while discharging her duties as a lecturer at the post of graduate level. This is a matter of crucial importance which remained to be considered in the impugned order. As rightly pointed out by Mr.Patwardhan, there is not a whisper in the appointment letter that the Petitioner would also have to teach the students at the graduate level. The impugned order however proceeds on an erroneous basis that there is no rule or any such direction which prevented the college authorities from asking the Petitioner to hold classes for the graduate course. This would be unfair to the Petitioner. Even assuming that she could be asked to hold a few classes during a contingency such as the said strike by the graduate teachers, that would not entitle the authorities to dismiss the Petitioner for lack of proficiency in Marathi to the extent of being able to hold the regular classes of B.Ed. She was never informed about the same in the appointment letters. 15. It is also a relevant question as to the level of proficiency required even for teaching at the B.Ed. level as a stop gap arrangement. It is only logical that the level of proficiency in Marathi for a course where the medium of instruction is Marathi would not be the same as the level of proficiency required for a course where in the medium of instruction is not 7 Marathi. This aspect is also not considered in the impugned order. 16. The Division Bench of this Court by an order dated 22.9.1993 while issuing rule, granted interim reliefs to the effect that in the event of the post being vacant, there would be an interim order in terms of prayer (C). By virtue of the said interim reliefs, the execution, implementation and operation of the impugned acts and the impugned order was stayed and the Respondents were directed to reinstate the Petitioner to her post. That order was not challenged. The Petitioner therefore continued on her post. She retired in the year 2006. She has received her salary. The only aspect that now remains as far as the Petitioner’s emoluments are concerned, is her retiral benefits. 17. In the circumstances, the impugned order is set-aside. The termination of the Petitioner’s services are set-aside. Rule is made absolute in terms of prayer (B). There shall be no order as to costs.