(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 1459 OF 2001 Prafull s/o. Dhondopant Kulkarni, Age : 31 years, Occupation : Service as Lecturer in English in Sharadchandra Arts and Commerce College, Naigaon Bazar, Taluka : Naigaon, District : Nanded. .. Petitioner. versus 1. The Registrar, Swami Ramanand Teerth Marathwada University, Nanded, Dist. Nanded. 2. Educational Society, Naigaon, through its Chairman at Po. Naigaon Bazar, Taluka : Naigaon (the then Taluka Biloli), District : Nanded. 3. The Principal, Sharadchandra Arts and Commerce College, Naigaon Bazar, Taluka : Naigaon, District : Nanded. 4. The State of Maharashtra. .. Respondents. ....................... (2) Mr. S.K. Kulkarni, Advocate, holding for Mr. C.R. Deshpande and Mr. A.D. Moharir, Advocates, for the petitioner. Mr. R.V. Ghuge, Advocate, for respondent no.1. Mr. C.V. Thombre, Advocate, for respondent nos.2 and 3. Mr. S.K. Kadam, Assistant Government Pleader, for respondent no.4. ........................ CORAM : A.P. DESHPANDE & N.D. DESHPANDE, JJ. DATE : 11TH JANUARY 2010 ORAL JUDGMENT (Per A.P. Deshpande, J.) : 1. The respondent no.2 is an Educational Society, which is also a Public Trust registered under and governed by the provisions of the Bombay Public Trusts Act, 1950. The 2nd respondent administers a college, by name, Sharadchandra Arts and Commerce College, Naigaon Bazar (District : Nanded). The respondent no.3, Principal of the College, issued advertisement in local daily, inviting applications for appointment to the post of Lecturers in the said college. Perusal of the advertisement would reveal that two vacancies were to be filled in by appointing candidates from open category, in the (3) post of Lecturer, for teaching English subject. The said two posts were in the grantable part of the college. It is also undisputed that the said advertisement was issued in the daily newspaper on 12th June 1996, after obtaining prior approval to the advertisement from the University. A communication from the University, approving the advertisement, is dated 11th June 1996 and copy thereof is placed on record. 2. The University constituted a Selection Committee as mandated the by the statutes and the statutorily constituted Selection Committee, which included nominee of the Vice Chancellor, so also, subject experts selected the present petitioner and one Shri K.V.B. Reddy for filling in the vacancies in the subject of English. Consequent upon selection of the present petitioner to the post of Lecturer, the petitioner was issued an appointment order dated 18th September 1996 appointing the petitioner temporarily without mentioning the period. It will not be out of place to mention that the petitioner did not then satisfy the necessary eligibility criteria for being appointed to the post of Lecturer, as the petitioner was not possessing qualification of Ph.D. or NET/SET. The University granted approval to the appointment of the petitioner for the academic session 1996-97 vide order dated 28th October 1996. The college management continued the petitioner in service in subsequent academic years without any objection from the (4) University or any one else for that matter. 3. The petitioner completed 2 years of service on 18th September 1998 and, as such, the college management confirmed the petitioner in service vide order dated 20th September 1998. The Principal of the college, vide communication dated 17th September 2000, submitted a proposal to the University bringing it to the notice of the concerned authorities, that the petitioner and one Shri K.V.B. Reddy have completed 4 years of service and it was also pointed out that the probation period was satisfactorily completed. Having regard to the satisfactory continuous service of the petitioner for a period of 4 years, it was recommended that the petitioner's appointment be approved subject to passing of NET/SET examination. Strangely enough, the University informed the Principal of the college, by the impugned communication dated 13th February 2001, that the petitioner and the other employee, Shri K.V.B. Reddy were continued from the year 1997 up to the year 2001 against the vacancies earmarked for O.B.C. category. It is then stated in the said communication, that the approval granted by the University dated 28th October 1996, approving the appointment of the petitioner as against a vacancy from open category, be treated as cancelled. The Principal was further directed to advertise the said posts in the next academic year with a view to substantively (5) fill in the same. 4. It is this communication from the University dated 13th February 2001, which goes to hold that the continuance of the petitioner was against a post reserved for O.B.C. category, is factually wrong and the University proceeding on that wrong premise is also not justified in revoking the approval granted vide order dated 28th October 1996 against open category. 5. An intervening event also need to be stated, and the same is that during the pendency of the present petition, the petitioner has acquired Ph.D. qualification and hence is eligible to hold the post of Lecturer. During the pendency of this petition, this court granted interim relief in terms of prayer clause "E" where under, the petitioner was continued in service and he continues to work in the college as a Lecturer till date. It is also not in dispute that on account of interim order passed by this court, the petitioner is being paid salary regularly admissible to the post of Lecturer in the prescribed scale of pay. 6. As pointed out herein above, it is clearly borne out from the record, that before advertising the post, the respondent nos.2 and 3 have got the advertisement approved from the University. The approved advertisement itself provided for two posts of Lecturer, in the subject of English, from open category (6) in the aided part of the college. The selection of the petitioner was at the hands of statutorily constituted Selection Committee which clearly envisages making selection for regular appointment. Looking from that angle, appointment of the petitioner, in that sense, was not ad hoc in nature. From the year 1996 onwards, the petitioner was continued as Lecturer for a period of 4 years and thereafter the college sent a proposal for approval. The proposal for approval came to be rejected on a non-existent ground i.e. appointment of the petitioner being against a vacancy earmarked for O.B.C. category. 7. It is also the grievance of the petitioner, that the impugned order which adversely affect civil rights of the petitioner, has been passed in breach of principles of natural justice without affording reasonable opportunity of hearing to the petitioner. The University has filed affidavit in reply. However, it is not the case of the University that the petitioner was afforded an opportunity of hearing. As we are convinced that the factual premise on which the impugned order has been passed, refusing approval to the appointment of the petitioner, is incorrect, the impugned order deserves to be quashed and set aside. We are also of the view that as the impugned order goes to revoke the approval granted vide order dated 28th October 1996, approving appointment of the petitioner against a vacancy from open category, the same could not have been revoked (7) without affording opportunity of hearing to the petitioner. We cannot also be unmindful of the fact that the petitioner is in continuous service since the year 1996 till date and has now acquired the requisite eligibility criteria by acquiring qualification of Ph.D. For all these reasons, we deem it fit and appropriate to quash and set aside the order dated 13th February 2001. 8. In the result, the petition is allowed. (i) The impugned communication dated 13th February 2001 (Exhibit "G"), from the University to the respondent no.3, to the extent it relates to the petitioner, is quashed and set aside. (ii) We direct the respondent nos.2 and 3 to forward a proposal in regard to the appointment and continuance of the petitioner, in the post of Lecturer since the year 1996, till date, to the University for its consideration and approval. The respondent nos.2 and 3 shall forward the proposal within a period of eight weeks from today and the University shall take appropriate decision in accordance with law, on the said proposal, as expeditiously as possible and preferably within a period of eight weeks from the date of receipt of the proposal, in the light of the observations made in this judgment. (8) (iii) The interim order operating in this petition shall continue to operate till the University passes an order on the proposal to be submitted by the respondent nos.2 and 3, seeking approval to the petitioner's appointment. 9. Rule made absolute in the above terms. There shall be no order as to costs. ( N.D. DESHPANDE ) ( A.P. DESHPANDE ) JUDGE JUDGE ......................... bgp/wp1459