1 W.P.No.3821-7764 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3821 OF 1996 The Joint Director of Higher Education, Pune & anr. ... Petitioners v/s Dr.(Mrs.) A.A.Rekhi & ors. ... Respondents ALONG WITH WRIT PETITION NO. 7764 OF 2010 Hind Seva Mandal, Ahmednagar through its Secretary, & anr. ... Petitioners v/s Dr.(Mrs.) Amarja Ajit Rekhi & ors. ... Respondents Mr.S.N.Bhosale, A.G.P. for the petitioners in W.P.No. 3821/1996. Mr.R.M.Haridas h/for Mr.P.N.Joshi for respondent No.1. Mr.S.G.Deshmukh i/by Mr.G.T.Kanchanpurkar for respondent Nos.2 and 3. Ms Minakshi Kulkarni along with Ms Swati Deshmukh i/by Mr.M.G.Kulkarni for Resp. No.4. CORAM: SMT.NISHITA MHATRE, J. DATED: 28TH JANUARY, 2011 2 W.P.No.3821-7764 ORAL JUDGMENT: 1. These petitions challenge the order passed by the University and College Tribunal, Shivaji University, Pune, in Appeal No.7 of 1996 (P). The College Tribunal has allowed the appeal filed by the lecturer and quashed the order of termination of service passed by the college on 31.3.1995. The lecturer has been reinstated with continuity of service and full back wages. 2. Writ Petition No.7764 of 1996 which was initially filed before the Aurangabad Bench of this Court, has been filed by the management of the college. Respondent No.1 in this petition is the lecturer whose services had been terminated. Respondent No.2 is the Joint Director of Higher Education Grants, who has filed Writ Petition No.3821 of 1996 against the same order of the College Tribunal. Respondent No.1 in that petition is the lecturer and respondent Nos.2 and 3 are the management and the college, respectively. For the purposes of convenience, respondent No.1 will be referred to as the lecturer). The petitioners in Writ Petition No.7764 of 1996 will be referred to as the management and the petitioners in Writ Petition No.3821 of 1996 will be referred to as the Director. The University of Pune and the State of Maharashtra are the other party respondents in both the petitions. 3 W.P.No.3821-7764 3. The facts giving rise to the present petitions are as follows:- An advertisement was issued by the management on 7.7.1990 for the post of Part-Time Lecturer. Respondent No. 1 was selected by the Selection Committee of the University of Pune as a Part-Time Lecturer for Hindi with effect from 22.7.1990. She was appointed against a post which, according to the Director, was reserved for Scheduled Caste candidates. The appointment was made for one academic year only. The post was advertised again for the year 1991-92 and respondent No.1 was selected and appointed again for that post. As the earlier lecturer for Hindi employed by the College retired, a full time post of lecturer became available. Accordingly, an advertisement was issued by the management for filling in the post of lecturer in Hindi for the academic year 1992-93. It was reserved for candidates belonging to the backward classes. Although six candidates from the reserved category applied for the post, the selection committee did not find a single candidate to be suitable for the post and, therefore, it submitted a report that respondent No.1 be continued for the next academic year. The management did not accept the recommendation of the selection committee and did not appoint anybody to the post, including respondent No.1. The University, Pune, directed 4 W.P.No.3821-7764 the management to employ respondent No.1 on a temporary basis and threatened to take action against the college and the management if its directions were not obeyed. 4. Accordingly, respondent No.1 was appointed as directed by the University on 14.6.1994 against a post which the management and the Director contend was reserved for candidates from the Nomadic Tribes (in short, N.T.). Ad-hoc appointment orders were issued in favour of respondent No.1 from time to time. For the year 1995-96 the college submitted an advertisement for approval to the University. Thereafter an advertisement was issued and 23 candidates from the N.T. category appeared before the selection committee. Three candidates were selected and appointment orders were issued to the candidates on 27.7.1995. 5. Aggrieved by the appointments of these candidates, respondent No.1 filed Appeal No.7 of 1996 before the Tribunal. She contended that she was appointed as a full time lecturer on a temporary basis. She pointed out further that pursuant to the University's approval, the post had been converted to the open category and, therefore, the order terminating her services on 31.3.1995 was illegal. After pleadings were completed, the College Tribunal allowed the appeal preferred by respondent No.1. It has held that the 5 W.P.No.3821-7764 order of termination of service dated 31.3.1995 was illegal because the post was de-reserved and converted into a vacant post on 25.7.1995, immediately after the services of respondent No.1 were terminated. It has been held that respondent No.1 was appointed after being selected by the Selection Committee constituted by the University. The Tribunal, therefore, concluded that the impediment of employing respondent No.1 on a permanent basis was removed, once the post was de-reserved in July, 1995. The Tribunal further held that in fact respondent No.1 had continued to deliver lectures in Hindi even after June, 1995. It has drawn this conclusion on the basis of the affidavits filed by nine students. The averments in these affidavits were not controverted by either the management or the Director. Accordingly, respondent No.1 was directed to be reinstated in service with continuity and full back wages. 6. Although both the petitions were admitted, interim relief was refused. Thus the order of the Tribunal has been implemented. 7. While deciding these petitions, it must be borne in mind that, admittedly there was only one post of full time Hindi lecturer with the College. There is no material on record to indicate otherwise. The question therefore is whether there can be any reservation in respect of the lecturer's post for a 6 W.P.No.3821-7764 particular subject. This issue, in my opinion, has now been answered by the Supreme Court in the case of State of Karnataka & ors. v/s K. Govindappa & anr., reported in (2009) 1 S.C.C. 1. The facts involved in the case before the Supreme Court were that the respondent in that case was a lecturer in History in an aided private college. The approval for his appointment was refused by the Government of Karnataka on the ground that his appointment had been made in violation of the roster policy. There was only one single post of lecturer in History in the college and, therefore, it was the contention of the lecturer that the reservation policy would not apply to such a post. Contesting the claim of the lecturer, it was submitted that the roster was maintained for making appointments to the cadre of lecturers, irrespective of the subjects which they taught. The argument advanced was that since there were six posts of lecturers, the post of lecturer in History could not be considered as a single post. The Supreme Court has considered its earlier judgments including the case of Chakradhar Paswan (Dr.) v/s State of Bihar, reported in 1998 2 S.C.C. 214, Arati Ray Choudhari v/s Union of India, reported in (1974) 1 SCC 87, Post Graduate Institute of Medical Education & Research v/s Faci;tu Assn., reported in (1997) 6 SCC 283, and has observed 7 W.P.No.3821-7764 thus in paragraphs 22 to 24 :- “22. While there can be no difference of opinion that the expressions “cadre”, “post” and “service” cannot be equated with each, at the same time, the submission that single and isolated posts in respect of different disciplines cannot exist as a separate cadre cannot be accepted. In order to apply the rule of reservation within a cadre, there has to be plurality of posts. Since there is no scope of interchangeability of posts in the different disciplines, each single post in a particular discipline has to be treated as a single post for the purpose of reservation within the meaning of Article 16(4) of the Constitution. In the absence of duality of posts, if the rule of reservation is to be applied, it will offend the constitutional bar against 100% reservation as envisaged in Article 16(1) of the Constitution. 23. The decision in Chakradhar Paswan (Dr.) case, which has been subsequently approved by the Constitution Bench in Post Graduate Institute of Medical Education & Research case makes it clear that isolated and separate posts can exist within a cadre and in case of such posts, if there was only one post, the same could not be set apart for a reserved candidate. 24. In our view, the present case falls within the category of single isolated posts within a cadre in respect whereof the rule of reservation is inapplicable and the said principle has been correctly applied by the High court in the facts of this case. As indicated by the High Court, each discipline which consisted of a single post will have to be dealt with as a separate cadre for the said discipline and in view of the settled law that there can be no reservation in respect of a single post, the appointment of respondent 1 cannot be faulted. This is particularly so having regard to the fact that the several disciplines are confined to one college alone. That is what distinguishes the facts of this case from those of Arati Ray Choudhary case in which the rule of rotation could be applied on account of the fact that two posts of headmistress were available in two colleges run by the same management. Moreover, in Chakradhar Paswan (Dr.) case on which reliance was placed by the High Court it was noticed that while upholding the rule of rotation the Constitution Bench in 8 W.P.No.3821-7764 Arati Ray Choudhary case did not support reservation in a single cadre post.” It was thus held that when there is a single post of a lecturer in a particular discipline, the post cannot be reserved. 8. The learned A.G.P. appearing for the Joint Director has submitted that the judgment of the Supreme court in the case of State of Karnataka & ors. v/s K. Govindappa & anr. (supra), case would be applicable prospectively . He submits that when respondent No.1 was appointed, the post was a reserved post and admittedly, respondent No.1 does not belong to the reserved category. He therefore submits that the government is not liable to pay any amount to her. 9. This submission of the learned A.G.P. has been stated only to be rejected. The decision of the Supreme Court enunciating a principle of law is applicable to all cases as what the Supreme Court does is to declare the law as it is from its inception. A judgment of the Supreme Court in a particular case cannot be said to be prospective in its application by invoking doctrine of prospective over ruling unless the Supreme Court itself indicates so in a particular decision. The judgment of the Supreme Court in the case of State of Karnataka & ors. v/s K. Govindappa & anr. (supra), does not in any manner indicate that the ruling is 9 W.P.No.3821-7764 prospective in its application. Therefore, the submission of the learned A.G.P. cannot be accepted. 10. Accordingly, both the writ petitions are dismissed. 11. The order of the College Tribunal is upheld. 12. Respondent No.1 shall be reinstated in service as a permanent Hindi Lecturer with continuity of service and full back wages. 13. All consequential benefits to which respondent No.1 is entitled pursuant to this order shall be paid to her within twelve weeks from today. The College being an aided one, the State Government will have to reimburse all such payments made to respondent No.1. 14. Rule discharged in both petitions. No order as to costs. ….. 10 W.P.No.3821-7764