W.P.No.6240.01 1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6240 OF 2001 Mr.Rohidas Ganpat Godse ... Petitioner v/s The Principal, G.B.Khare College, & ors. ... Respondents Ms Anita Agarwal for the petitioner. Ms Sunanda Kumbhat for Resp. Nos.1 to 3. Mr.R.A.Rodrigue for respondent No.4. CORAM: SMT.NISHITA MHATRE, J. JUDGMENT RESERVED ON 21.01.2011 JUDGMENT PRONOUNCED ON 11.03.2011 ORAL JUDGMENT: 1. The challenge in this petition is to the judgment and order of the Mumbai University and College Tribunal dated 27.3.2001. By the impugned order, the Tribunal has dismissed the appeal preferred by the petitioner under Section 59 of the Maharashtra Universities Act, 1994. W.P.No.6240.01 2 2. On 10.12.1998, respondent Nos.1 and 2 i.e. the management of the college advertised the post of lecturer in Accountancy. The petitioner being qualified with M.Com., M.Phil. and G.D.C. & A. degrees, applied for this post. He was selected by duly constituted Selection Committee and joined service with the management on 6.2.1999. He was informed that the formal appointment order would be issued to him later. The petitioner noticed that the management was indulging in the malpractice of releasing payment of only 50% of the salary payable to the teaching staff although their signatures were obtained on documents indicate that they had received the full salary. On a demand by the management, the petitioner submitted a duplicate pass-book to it. 3. The petitioner was issued an order terminating his services on 1.1.2001. Consequently, he preferred Appeal No. 1 of 2001 before the Mumbai University and College Tribunal (in short, the Tribunal) on 10.1.2001 challenging the order of termination issued to him. That appeal was dismissed on 27.3.2001 by the Tribunal concluding that the management had established that the work and behaviour of the petitioner was not satisfactory. It was held that the petitioner was appointed on a temporary basis and, therefore, could have been terminated from service on appraisal of his work which W.P.No.6240.01 3 was found to be unsatisfactory. 4. Ms Agarwal appearing for the petitioner, submitted that the order of termination issued to the petitioner was illegal and unjustified. She submitted that the order was stigmatic as the management had stated in the order of termination that the petitioner’s work and behaviour had not been found satisfactory. She pointed out that the petitioner had undergone a selection process and was in fact entitled to permanent employment. She submitted that the management had failed to follow the procedure detailed in the Act for assessment of reports or work of the petitioner. According to the learned advocate, the failure on the part of the management to comply with the requirement of maintaining assessment reports in consonance with the provisions of the statute has vitally prejudiced the petitioner. She urged therefore that the services of the petitioner could not have been terminated on the ground that his work was not satisfactory without such assessment reports. Mrs.Agarwal buttress this argument by relying on the judgment in the case of Vanmala S. Aney v/s National Education Society, reported in 1982 Mah.L.J. 403. She further drew my attention to the fact that the assessment of the petitioner’s work was carried out by an outsider i.e. respondent No.3 herein when that was not the procedure W.P.No.6240.01 4 prescribed under law. Apart from this, Mrs.Agarwal submitted that there was no material on record to show that the behaviour of the petitioner had not been satisfactory and, therefore, the management could not have terminated the services of the petitioner in the manner that it had. She further submitted that it was only because the petitioner had complained against the misdeeds of the management in directing the teaching staff to sign on registers/vouchers indicating that they had received full payment of their salary when in fact the management had paid only half the salary. 5. Ms Kumbhat for the management submitted that it had acted by following the due process of law while terminating the services of the petitioner. She submitted that the petitioner was only a temporary employee and, therefore, could have been terminated from service at any point of time. According to her, requisite steps as envisaged under the Act had been taken while terminating the petitioner’s services and, therefore, this Court should not interfere with the order passed by the Tribunal. She further submitted that the petitioner had not completed his NET/SET examination and, therefore, could not have been considered to be either a probationer or a permanent employee. He was appointed only as a temporary employee as under the rules of appointment, a person who was not suitably qualified could W.P.No.6240.01 5 not have been employed. The learned advocate pointed out that the petitioner had been paid one month’s salary in lieu of notice and, therefore, his termination from service was legal. 6. The order of termination which was issued to the petitioner suggests that his appointment from 21.1.1999 was on a purely temporary basis and that he did not possess the NET/SET qualification. It was mentioned that his work and behaviour had not been found to be satisfactory and, therefore, his services were being terminated with immediate effect. One month’s pay in lieu of notice was enclosed with the letter. The petitioner was informed that the decision to terminate the services was taken by the governing council in its meeting held on 26.12.2000. 7. The submission of Ms Agarwal that the petitioner’s services were not temporary in nature but that he in fact had been appointed on probation. The statutes of the Mumbai University prescribed the manner in which selections are to be made for appointment of teachers. The petitioner’s appointment was made after he was selected by a duly constituted Selection Committee comprising the Vice Chancellor, a subject expert nominated by the University, a representative of the B.C. Cell of the University and a representative of the Director of Higher Education. This W.P.No.6240.01 6 selection committee obviously was a selection committee as envisaged under Statute 417 and not a local selection committee for filling any temporary vacancies. A local selection committee for filling any temporary vacancy comprises of (i) the Chairman of the Governing Body or his nominee, (ii) the Principal of the College, and (3) the Head of the Department of the College in the subject concerned or the senior-most teacher in the subject if there is no Head of the Department. Considering the constitution of the Selection Committee which selected the petitioner for appointment, it is evident that the petitioner's selection was not on a temporary vacancy but as a probationer. 8. However it would be necessary to examine the issue in juxtaposition to the requirement of completing the NET/SET examination. Several circulars have been produced before this Court which need to be considered while appreciating the rival contentions. A circular has been issued by the Government of Maharashtra which stipulates that those candidates who had passed the degree examination with 55% marks, had a good academic record and who had passed the M.Phil. examination by 31.12.1993 or who had submitted their thesis for the Ph.D. degree by 31.12.1993 were exempted from appearing for the NET/SET examination. It appears that thereafter in 2002, the Mumbai University i.e. W.P.No.6240.01 7 respondent No.4 herein issued a circular prescribing qualifications for appointment to the post of lecturer. This circular mentions that a decision had been taken on 18.10.2001 by the State Government with respect to the services of those lecturers who had not completed their NET/SET examination. The decision of the University was taken in view of the fact that there were about 2000 lecturers who had been appointed between 19.9.1991 to 11.12.1999 without having completed their NET/SET examination but had worked for 7 to 8 years. The University decided that those lecturers who had been appointed from 19.1.1991 and 11.12.1999 would be continued in service on certain terms: (a) all such lecturers were expected to complete their NET/SET examination by 2003; (b) lecturers who did not complete NET/SET examination as stipulated would be continued in service without any increments and would be entitled to a pay scale of `8000-13500 till they attained the age of superannuation; (c) the seniority of those who completed the NET/SET examination was to be reckoned from the date of completion of the examination and they were to be included in the seniority list accordingly. Besides this, it was stipulated that those who entered service after 11.12.1999 and had not completed the NET/SET examination would not be entitled to the aforesaid concession and their services were directed to be terminated. It was also W.P.No.6240.01 8 stipulated that in no case should persons who had not completed the NET/SET examination be appointed as lecturers after 4.4.2000. It was further directed that those persons who had been appointed after 4.4.2000 without having the requisite qualification should be terminated from service. This circular was issued on 27.2.2002. 9. The government resolution dated 18.10.2001 was challenged before the Aurangabad Bench of this Court in several writ petitions. While upholding the resolution, the Aurangabad Bench set aside clause 2(b) of the resolution as unsustainable. A similar batch of petitions were filed in this Court and a Division Bench of this Court (to which I was a party) directed that those persons whose services had been terminated in view of clause 2(b) of the resolution dated 18.10.2001 were entitled to reinstatement subject to the consideration of their papers by the University Grants Commission in view of Clause 2(b) having been struck down. It appears that the University Grants Commission has prescribed the minimum qualifications for professors, readers and lecturers in various subjects in University or colleges for appointment of persons through open advertisement. These regulations are in supersession of the U.G.C. Regulations dated 19.9.1991 and 24.12.1998. For the post of lecturers, the requirements are as follows:- W.P.No.6240.01 9 “1.3.3. Lecturer: Good academic record at least 55% of the marks or, an equivalent grade of B in the 7 point scale with latter grades Q, A, B, C, D, E & F at the master’s degree level, in the relevant subject from an Indian University, or, an equivalent degree from a foreign University. Besides fulfilling the above qualifications, candidates should have cleared the eligibility test (NET) for lecturers conducted by the UGC, CSIR or similar test accredited by the UGC. NOTE: NET shall remain the compulsory requirement for appointment as Lecturer even for candidates having Ph.D. Degree. However, the candidate who have completed M.Phil. Degree or have submitted Ph.D. thesis in the concerned subject up to 31st December, 1993, are exempted from appearing in the NET examination.” 10. In the present case, admittedly, the petitioner had completed his M.Phil. degree only in 1997 although he was registered for the degree in 1994. However, in view of the decision of the University dated 27.2.2002, the petitioner’s services would be protected as the University had, in consonance with the circular of the State Government issued W.P.No.6240.01 10 on 20.2.1996, directed that those lecturers who had not completed their NET/SET examination should be continued in service if they had been appointed between 19.1.1991 and 11.10.1999. However, he would be entitled to increments only within the pay scale of Rs.8000-13500 and not any other benefits like promotion, selection grade, etc. Therefore, in my view, the submission of Ms Kumbhat that the petitioner’s services had to be terminated because he had not cleared the NET/SET examination cannot be accepted. 11. Ms Kumbhat attempted to submit that the circular issued by the University on 27.2.2002 was not applicable to the petitioner. She submitted that the petitioner’s services were terminated on 1.1.2001 and therefore he could not take advantage of this circular. This submission is untenable. The circular is very clearly applicable to those who were appointed in the period from 19.1.1991 to 11.10.1999. Obviously therefore it has a retrospective effect. The petitioner having been appointed on 6.2.1999 was clearly entitled to the protection of his services. Unfortunately, the management has chosen to rely only on the recitals of the circular and not the contents in their entirety. 12. In my view, therefore, there would be no impediment to grant the relief of reinstatement if the order of termination is W.P.No.6240.01 11 found invalid on other counts as well. The termination order mentions that the work and behaviour of the petitioner was not found satisfactory. In its written statement filed before the Tribunal, respondent Nos.1 and 2 have mentioned a couple of instances which according to them amount to unsatisfactory behaviour on the part of the petitioner. These are of writing letters to the management and various authorities and of speaking in a loud voice on one particular occasion. As regards unsatisfactory work, respondent Nos.1 and 2 in their written statement have stated that the petitioner’s English was poor. He was nervous while teaching and did not have a mastery over the subject he was teaching. 13. As mentioned earlier, Statute 417 prescribes the method of appointment of a teacher. The selection must be made in accordance with Statute 417 and in the first instance the appointment on selection must be on probation for a period not exceeding 24 months from the date on which he joins duty. The teacher shall be confirmed after the expiry of this period of his service or he may be terminated from service provided at least one month’s notice is served on him or salary in lieu thereof is paid to him. The management is not expected to assign any reason for terminating the services of a teacher on probation if it is found that he has W.P.No.6240.01 12 not completed his probation period satisfactorily. Clause (2) of Statute 418 stipulates thus - “(2) The Principal of the College shall maintain assessment report of a teacher on probation in the form prescribed for the purpose by the University, as shown in Appendix “D-1” for even six months and complete it at the end of each term of the academic year. The Principal shall send to the Chairman of the Governing Body, at least two months before the date of expiry of the period of probation, his assessment report with a definite recommendation. If a teacher is not to be confirmed at the end of the probationary period a confidential report justifying the recommendation should be attached and such cases be referred to the Chairman of the Governing Body for further action. The Governing Body shall be the deciding authority in such cases.” 14. From the order impugned in the petition it does not appear that the college management had produced the assessment report of the petitioner while he was on probation. The pleadings in the written statement do not disclose that such an assessment report was maintained by the Principal of the College. 15. In the case of Vinayak Vidhyadayini Trust & anr. v/s Smt. Aruna T. Prabhu & ors., reported in 2010(5) ALL MR 200, the Division Bench of this Court, while considering similar provisions in the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, has held W.P.No.6240.01 13 thus :- “13. It is true that as a general principle in service jurisprudence an employee is appointed on probation to test his/her performance and suitability for the post appointed and if during this period of probation, the performance is found to be unsatisfactory, the employer has the right to discontinue the employee on completion of the probationary period and without assigning any reasons. It is also equally well settled that such an order of termination is not a stigmatic order and as per the contract of service or the terms of appointment, the employer has such a right so that the exercise of such right would not amount to an illegal action on the part of the employer. Such an order will not by itself be a penal order and the period of probation furnishes a valuable opportunity to the master to closely observe the work of the probationer. However, the MEPS Act is a special piece of legislation and Section 5(2) of the said Act states that every person appointed to fill a permanent vacancy shall be on probation for a period of two years and subject to the provisions of Sub-sections 3 and 4, he shall, on completion of his probation period of two years, be deemed to have been confirmed. As per sub-section 3 of Section 5 of the MEPS Act, if in the opinion of the management, the work or behaviour of any probationer during the period of his probation is not satisfactory, the management may terminate his services at any time during the said period after giving him one month’s notice or salary of one month in lieu of notice. Thus, the appointment on probation and the termination of the service of the probationer are governed by the provisions of sub- sections (2) and (3) of Section 5 of the MEPS Act. In addition, Rules 14 and 15 of the MEPS Rules, 1981, have elaborately set out the procedure for the assessment of the probationer’s performance and writing of his confidential reports. When a special statute like the MEPS Act has provided for a specific procedure to be followed while terminating the employment of a probationer on the ground of unsatisfactory performance, the said procedure is mandatory and non-compliance thereof would vitiate the order of termination and the School W.P.No.6240.01 14 Tribunal will be fully justified to interfere with the same and set it aside by directing reinstatement of the appointee/appellant. (Emphasis added). In the present case, there is no indication that the assessment reports of the petitioner were maintained by the Principal of the College nor is there any material placed on record to show that the Principal had sent to the Chairman of the Governing Body his assessment report with a definite recommendation, two months prior to the date of expiry of the period of probation. 16. Thus, in my opinion, the termination of the services of the petitioner was unjustified as it was not executed in accordance with the rules applicable. The learned advocate for the respondent has relied on the judgements of the Supreme Court in the case of Radhey Shyam Gupta v/s U.P.State Agro Industries Corporation Ltd. & anr., reported in (1999) 2 SCC 21 and in the case of Chandra Prakash Shahi v/s State of U.P. & ors., reported in (2000) 5 SCC 152, in support of her contention that since the petitioner was a temporary employee there was no need to hold an enquiry even though the reasons for terminating his services were unsatisfactory work and behaviour. These judgements, in my opinion, would be relevant only if the respondent management had terminated the services of the W.P.No.6240.01 15 petitioner validly. As I have already held that these rules have not been observed, in my opinion, the decision of the management to terminate the services of the petitioner was illegal. 17. In the case of V.P.Ahuja v/s State of Punjab & ors., reported in (2000) 3 SCC 239, the Apex Court has held that even a person who is appointed as a temporary employee, is entitled to certain protection. His services cannot be terminated arbitrarily or punitively without complying with the principles of natural justice. The reason for terminating the services of the employee in the case before the Apex Court was that, he “failed in the performance of his duties administratively and technically”. The Court observed after considering the judgement in the case of Dipti Prakash Banerjee v/s Satyendra Nath Bose National Centre for Basic Sciences, reported in (1999) 3 SCC 60, that the order impugned was stigmatic on the face of it. The order impugned in the present case has been passed because the petitioner had not completed the NET/SET examination and had failed to achieve satisfactory standards of work. The termination of service of the petitioner is illegal as the Respondent Nos.1 and 2 were unable to establish that the petitioner's behaviour and work were not up to the mark. W.P.No.6240.01 16 18. The petitioner is entitled to be reinstated with continuity of service in terms of the circular of the University dated 27.2.2002. He is also entitled to the back wages, less the amount earned by him while working in D.G.T. Arts & Commerce College, Raigad, where he has worked from 8.7.2003. 19. The writ petition is allowed. 20. Rule made absolute. No order as to costs. ......