0212wp4764.06.sxw 1. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. WRIT PETITION NO. 4764 OF 2006 Rameshwar Gulabrao Jadhav Vs. The P. O., University and College Tribunal & others Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : Smt. Vasanti A. Naik, J. DATED : 02nd Dec., 2008. 1. By this writ petition the petitioner has challenged the order dated 30/6/2006 passed by the University and College Tribunal in appeal No. A-6/1999 allowing the appeal filed by respondent No. 2 to this writ petition. 2. Respondent No. 3-society and respondent No. 4-institution issued an advertisement in the daily Lokmat inviting application for two posts of Full Time Lecturers in History on grant basis and one post for the full time Lecturer in History on no grant basis on 23/10/1997. The interviews were held by the duly constituted Committee on 17/01/1998. The respondent - 0212wp4764.06.sxw 2. management appointed respondent No.6 and respondent No. 2 on the post of full time Lecturers in History and the approval was also granted to their appointment. According to the University, the petitioner was second in the order of preference for appointment on the post of Lecturer and therefore, the management ought not have appointed Shri Ghughe -respondent No.2 on the post of Lecturer. Since the management terminated services of respondent No. 2 in view of communication issued by the University, respondent No. 2 filed an appeal against his termination and also sought a declaration that he was selected at Sr. No. 1 by the duly constituted selection committee for appointment on the post of Lecturer in History in open category and therefore was entitled to be appointed and approved on that post. 3. The writ petition was filed by the petitioner against the judgment of the Tribunal passed on 30/6/2006 allowing the appeal filed by the respondent No.2. The 0212wp4764.06.sxw 3. judgment passed by the Tribunal on 20/6/2002 was set aside by this Court and the matter was remanded to the Tribunal and the Tribunal was further requested to consider the question as to who was selected on the second post in the subject of History, after perusing the material on record. In the second round of litigation also the Tribunal by the impugned judgment dated 30/6/2006 allowed the appeal filed by respondent No. 2 and held that the respondent No. 2 was selected on the second post of Lecturer in History in open category and it was necessary for the University and the Joint Director of Higher Education to grant approval to the appointment of respondent No. 2 on that post. The judgment dated 30/6/2006 is impugned in the instant petition. 4. Shri Haq, the learned Counsel for the petitioner challenged the judgment passed by the Tribunal on two grounds. According to the learned Counsel for the petitioner, the Tribunal had no jurisdiction to declare that respondent No. 2 was selected on the second 0212wp4764.06.sxw 4. post of Lecturer in History and since the declaration has been granted in the absence of jurisdiction, judgment dated 30/6/2006 is liable to be set aside. The learned Counsel for the petitioner submitted that the respondent No. 2 could have sought a declaration from the Civil Court and the declaration could not have been sought by filing an appeal under Section 59 of the Maharashtra Universities Act, 1994. The learned Counsel for the petitioner then submitted that the Tribunal was further not justified in holding that the recommendation of the Selection Committee shows that respondent No. 2 had first preference to be appointed on the second post of Lecturer in the subject of History as the printed words on the said document show otherwise. The learned Counsel for the petitioner submitted that respondent No. 6 and the petitioner were first and second in the order of preference to be appointed on two posts and in fact respondent No. 2 and one Shri Murkute were first and second for the second preference. The learned Counsel for the petitioner sought 0212wp4764.06.sxw 5. for the setting aside of the judgment dated 30/6/2006. 5. Mr. F. T. Mirza, the learned Counsel for respondent No. 2 supported the judgment passed by the Tribunal on 30/6/2006 and submitted that the Tribunal has rightly held that the issue of the position of the candidates in the selection list was incidental and the main issue related to the termination of the respondent No.2. The learned Counsel for the respondent No. 2 submitted that while considering the case of termination of respondent No.2 it was necessary for the Tribunal to decide the issue of position of the candidates in the selection list and hence it was also necessary to grant a declaration, as is granted by the Tribunal. It is then submitted on behalf of respondent No. 2 that the Tribunal has rightly interpreted the document i. e. recommendation of the Selection Committee. He sought for the dismissal of the petition. ..6.. 0212wp4764.06.sxw 6. 6. Mrs. Wandile, the learned Assistant Government Pleader appearing on behalf of respondent Nos. 1 and 9 supported the impugned judgment and submitted that the Tribunal had jurisdiction under the provisions of Section 59 of the Act to consider the issue of declaration as also the issue of the position of the candidates in the selection list. The learned A G. P. submitted that the impugned judgment was passed by the Tribunal by following the directions issued by this Court by the judgment dated 02/8/2005 in writ petition No. 3032 of 2000. The learned A. G. P. sought for the dismissal of the writ petition. 7. Mr. Wadodkar, the learned Counsel for respondent No. 6 had nothing much to say in the matter as undoubtedly he was given first preference in the order of selection in the selection list. 8. I have considered the submissions made on behalf of parties and have also perused the judgment dated 30/6/2006. It is 0212wp4764.06.sxw 7. necessary to consider that this Court had by the judgment dated 02/8/2005 in writ petition No. 3032 of 2000 remanded the matter to the Tribunal and further requested the Tribunal to consider the question as to who was selected on the second post in the subject of History, after perusal of the material on record. Respondent No. 2 had not only prayed for a declaration in the appeal but had also sought for quashing and setting aside of the termination of respondent No.2, effected by the management on 30/7/1999. The respondent No. 2 had also sought a direction to the management to reinstate respondent No. 2 in service with full back wages and continuity in service. Though the declaration was sought by prayer clause (1) and setting aside of oral termination was sought by prayer clause (2) in the appeal, it is clear that the respondent No. 2 was aggrieved by the order of termination which was effected in view of the interpretation of the University of the selection list/proposal send by the management to the University for granting 0212wp4764.06.sxw 8. approval to the appointment of respondents No. 2 and 6 on the post of Lecturers in History. The issue of the position of the candidates in the selection list was, therefore considered by the Tribunal while considering the correctness of the order of termination of services of respondent No. 2. 9. For the aforesaid reason it cannot be said that, the Tribunal had no jurisdiction to grant a declaration as sought by respondent No. 2 in the appeal. It also cannot be said that the Tribunal was not justified in holding that the two sets of candidates made by the selection committee indicate that the said sets represent two posts and the figures I and II represents 1st and 2nd preference. The Tribunal was justified in holding that figure I against the name of respondent No.2 indicated that he had first preference to the second post and figure II read against the name of Shri Murkute indicates that he had a second preference to the second post. It cannot be said that the Tribunal was not justified in giving less significance to the 0212wp4764.06.sxw 9. printed words “first preference, second preference and third preference” in the concerned document. Apart from the said document which was interpreted by the Tribunal, the Tribunal also relied on the affidavit of one of the Members of the Selection Committee who was a party to the appeal. 10. There is no error, much less a jurisdictional error in the impugned judgment passed by the College Tribunal on 30/6/2006. The petition is therefore dismissed with no order as to costs. JUDGE wwl