IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 4378 OF 1995 Ajit Anant Kinhikar, ... Petitioner Behind Maruti Temple, Near Dr. Dhore Hospital, Main Road, Wada, Thane - 421 303. V/s. 1. The University of Bombay University Buildings, Bombay. 2. Shikshak Sanchalit Shikshan Sanstha’s College of Arts & Commerce, Wada, Dist. Thane - 421 303. 3. The Principal, Arts & Commerce College, Wada, Dist. Thane. 4. The Secretary, Shikshak Sanchalit Shikshan Sanstha, Wada, Dist. Thane. 5. Shri Khandekar, Lecturer in English C/o. Arts & Commerce College, Wada, Dist. Thane. 6. State of Maharashtra ... Respondents Mr. N.M. Ganguly for the petitioner. Mr. S.G. Deshmukh for respondent No. 3 & 4. Mr. Rajesh Datar for respondent No. 5. Mr. C.R. Sonawane, AGP for respondent No. 6. CORAM CORAM CORAM : R.M. LODHA & : R.M. LODHA & : R.M. LODHA & A.S. A.S. A.S. BAGGA, JJ. BAGGA, JJ. BAGGA, JJ. DATE OF RESERVING : 20th June, 2006 THE JUDGMENT DATE OF PRONOUNCEMENT : 23rd June, 2006 OF THE JUDGMENT 2 ORAL ORAL ORAL JUDGMENT (PER : A.S. BAGGA, J) JUDGMENT (PER : A.S. BAGGA, J) JUDGMENT (PER : A.S. BAGGA, J) : By filing this Writ Petition, the petitioner has challenged termination of his services and appointment of respondent No. 5 in his place. 2. The petitioner was initially appointed on adhoc basis on a post fallen vacant consequent upon the resignation of one Prof. Wakchaure in the respondent college in 1987. He was appointed to the post after local interview on adhoc basis till 20th April, 1987. The appointment letter was issued by respondent No. 4, the Secretary, Shikshak Sanchalit Shikshan Sanstha, Wada, Dist. Thane. The post was re-advertised on 14th May 1987 for the academic year 1987-88. The petitioner applied for the post and he was called for interview on 7th July, 1987 before the duly constituted Selection Committee and he was selected and appointed as per order No. 1005/1987-88 and was shown to be appointed as temporary in reserved post meant for Scheduled Caste candidate. The post was again advertised on 23.04.1988 for one reserved post. The petitioner once again was interviewed and since no reserved category candidate was available, petitioner was appointed against on the post in 3 continuation of his previous order No. 266/88-89 dated 01.07.1988. Since no candidate from the reserved category was available for the appointment in the post, the petitioner was continued on temporary basis till reserved category candidate became available. 3. It is case of the petitioner that on account of mis-management of the respondent college and Administrator appointed in October, 1989, no steps were taken for de-reservation of the post which was held by the petitioner and the services of the petitioner came to be terminated by the Administrator with effect from 16.03.1993. The petitioner challenged his termination by filing appeal being Appeal No. 10 of 1993 before the College Tribunal, Bombay. The College Tribunal by judgment and order dated 15.02.1994 set aside termination of the petitioner and directed the respondent college to advertise the post for reserved category candidate. The Management issued advertisement on 19th May, 1995 for appointment of reserved category candidate for the post which was held by the petitioner on temporary basis. After holding interviews, the respondent No. 5, a candidate belonging to Hindu-Dhangar caste which is recognised as Nomadic Tribe came to be appointed by 4 letter dated 26th July, 1995. After the appointment of respondent No. 5, belonging to reserved category, the petitioner came to be relieved of the post held by him temporarily. 4. The petitioner, aggrieved by termination of his services and the appointment of respondent No. 5, a candidate not belonging to Scheduled Caste, but belonging to Hindu-Dhangar, has filed this petition. It is contended by the petitioner that the respondent Management was under obligation to get the post held by the petitioner de-reserved after the expiry of three years. After the expiry of three years, the Management ought to have got the post de-reserved. As per the Government Resolution dated 25.01.1990 the period was extended up to five years. Since nobody from reserved category was appointed, the petitioner ought to have been appointed on regular basis atleast after expiry of five years. It has been further contended that the college also failed to comply with the directions of College Tribunal to get Scheduled Caste candidate appointed on the post. Thus, termination of the services of the petitioner was bad in law. 5. In reply affidavit respondent No. 4 Shikshan 5 Sanstha has raised preliminary objection that since the petitioner had challenged the order of termination dated 26th July, 1995, the petitioner should have filed the appeal before University Tribunal under Section 59 (1) of The Maharashtra Universities Act, 1994. With regard to the petition, it has been stated by the respondent No. 4 that the petitioner was appointed on temporary basis from 20th June, 1993 to 20th April, 1994 and the period between 20th June, 1994 to 20th April, 1995. It was clearly stated that the petitioner was appointed on temporary basis in a vacancy for a candidate belonging to reserved category. Reference was made by the respondent No. 4 to the judgment of the Presiding Officer of the College Tribunal dated 10.02.1994 in the appeal filed by the present petitioner being Appeal No. 10 of 1993, wherein the tribunal directed the respondents to re-advertise the post for two consecutive academic years inviting applications from candidates of reserved category only. It was further directed by the tribunal that if a candidate from reserved category was not available, the appellant was entitled to continue in the post held by him. The Management in pursuance of this order of the Tribunal advertised the post and candidate belonging to backward class was found and respondent No. 5 came to be duly appointed. 6 6. Thus, at the outset, it would be seen that the petitioner admittedly was appointed on temporary basis against the post for reserved category candidate and his services were liable to be terminated on finding a suitable candidate. Admittedly, no steps were taken for getting the post de-reserved. 7. It would be noticed that the petitioner’s services were terminated earlier on 16.03.1993 and he has filed appeal before the College Tribunal being appeal No. 10 of 1993 against said termination. He challenged the termination order contending that he had served continuously for more than five years and he should be held to be a confirmed teacher and the post should be deemed to have been de-reserved. The contentions of the petitioner were rejected. The University Tribunal, however, allowed the appeal of the petitioner and observed that he was entitled to continue in the services till a suitable candidate from reserved category was available. The respondents were directed to re-advertise for two consecutive academic years, therein inviting applications from candidates of reserved category only. If a candidate from reserved category was not available or was not found suitable, pursuant to these advertisements, the 7 appellant-petitioner was entitled to be continued in the post held by him. 8. It is pertinent to note that it was in pursuance of the directives, that advertisement was issued by the respondents calling for applications and in pursuance of that advertisement, respondent No. 5 belonging to reserved category came to be appointed with effect from 1st August, 1995 and from 26th July, 1995 the services of the petitioner came to be terminated. 9. It would be significant to note that even services of respondent No. 5 who was appointed in the place of petitioner were terminated and he had challenged his termination before the University Tribunal. A copy of that judgment has been placed on record by respondent No.5. In the judgment, the University Tribunal in Appeal No. 19 of 1997 filed by respondent No. 5, his termination was held to be bad. It was held by the University Tribunal that his appointment on the reserved category post was in accordance with the advertisement. The respondent No. 5 was appointed on probation. Though, respondent No. 5 was from Hindu-Dhangar, the post reserved for SC/ST was interchangeable between SC/ST/DT/NT category. The 8 services of defendant No. 5 were terminated for the reasons that he had not passed NET/SET examination. The respondent No. 5’s appeal was allowed and order of termination of the respondent No. 5 was set aside by the Presiding Officer of the University Tribunal. 10. Thus, it is seen that the petitioner was appointed on temporary basis on a post for reserved category, he was entitled to continue in the said post until such suitable reserved category candidate was found and appointed. Normally such exercise for appointment of reserved candidate was required to be completed within three years and by later direction from the Government within five years. After expiry of three years or five years the reserved category post would not get de-reserved automatically. Admittedly, no steps were taken by the parties and the post was not de-reserved. The petitioner himself has challenged earlier termination by filing appeal before the University Tribunal. It was in pursuance of the direction of the Presiding Officer of the College Tribunal, that post was advertised and the respondent No. 5 a candidate from Hindu-Dhangar was appointed. It has been clearly observed by the Tribunal that the reserved categories were interchangeable. Apart from the observations from the University Tribunal in its 9 judgment dated 17/06/1997 in Appeal No. 19 of 1997 by respondent No. 5, we ourselves have perused the Government Resolution dated 5th December, 1994 and 19th January, 1995 placed on record under which such interchange within SC/ST/DT/NT category is permissible. 11. Thus, after having perused the record we are satisfied that the petitioner’s appointment was temporary and was against the post for reserved category. We have further noted that the post which was held by the petitioner was never got de-reserved. The post was advertised for appointment of reserved category candidate in pursuance of the order passed by the University Tribunal in the appeal filed by the petitioner. In response to that advertisement, respondent No. 5 applied and was duly selected and appointed. As a consequence of appointment of respondent No. 5, a candidate from Hindu-Dhangar community, the services of petitioner were rightly terminated. The appointment of respondent No. 5 who is from Hindu-Dhangar community has been held to be in accordance with the advertisement and the rules which permitted interchange of SC/ST category with DT/NT category. The Government Resolution in this regard also permitted this interchange. 10 12. In result, we do not find any merit in this Writ Petition. It must fail. Writ Petition is dismissed. No order as to costs. [R.M. [R.M. [R.M. LODHA, J] LODHA, J] LODHA, J] [A.S. [A.S. [A.S. BAGGA, J.] BAGGA, J.] BAGGA, J.]