1 wp 4883.02.doc K IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4883 OF 2002 Mr. Acharya Ajay Mukundrao, Adult, Occ: Service, C/o. Rector Bungalow, Ladies Hostel, Rajaram College Campus, Kolhapur 416 004. ..Petitioner. Vs. 1 The Principal, D.D.Shinde Sarkar College, Near Ambabai Temple, Kolhapur. 2 The President, Sarswati Shinde Education Society, 1785, ‘A’ Ward, Sakoli Corner, Kolhapur 416 012. 3 The Director, Board of College & University Development, Shivaji University, Kolhapur. 4 The Joint Director, Kolhapur Region, Kolhapur. 5 The State of Maharashtra. ..Respondents. Mr. S.G.Kudle for petitioner. Mr. Ajit Kenjale for respondent no.1. Mr.Suresh Shah for respondent no.2. Mr. Rajdeep Khadapkar for respondent no.3. Mr.S.G.Bhosale, AGP for State/respondent nos. 4 and 5. 2 wp 4883.02.doc CORAM : K.K.TATED, J. RESERVED ON : 24/03/2011 PRONOUNCED ON: 30/03/2011. ORAL JUDGMENT: 1 Heard the learned counsel for Parties. 2 By this petition under Articles 226 and 227 of the Constitution of India, Petitioner-original Appellant challenges the oral judgment dated 13 August, 2001 passed by learned Presiding Officer, Pune/Shivaji University and College Tribunal, Kolhapur in Appeal No.7 of 2000 (S) dismissing the appeal preferred by the Petitioner to quash and set aside the termination order dated 18th March, 2000. 3 A few facts of the matter are as under: Respondent no.1 is Principal of D.D.Shinde Sarkar College, Kolhapur where as respondent no.2 is the President of Saraswati Shinde Education Society registered under the Bombay Public Trust Act as well as Societies Act. The respondent no.3 is Director of Board of College and University Development and respondent no.4 is Joint Director of the said University for 3 wp 4883.02.doc Kolhapur Region and respondent no.5 is the State of Maharashtra. 4 The respondent no.2 published an advertisement in ‘Daily Sakal’ on 20th May, 1999 inviting applications from eligible candidates for the post of Lecturer in English, Economics, Political Science and Sociology. It was stated in the said advertisement that those posts were advertised under the special recruitment drive for filling back log. The condition no.3 of the said advertisement reads as under: “3. Reserved post advertised for VI th times, will be filled in by transfering categories internally as per provisions in G.R.No.BCC-1054/96-16 b of 5th Dec.1994 viz. SC to ST & vice versa.” 5 Pursuant to the said advertisement, Petitioner applied for the post of Lecturer in English. After following due process of law, respondent no.2 called the Petitioner for interview and was interviewed by the duly constituted selection committee of Shivaji University. The performance of the petitioner before the selection committee was quite satisfactory, as a result of which the Petitioner was appointed by respondent no.2 as a lecturer in 4 wp 4883.02.doc English vide appointment letter dated 2nd August, 1999 on temporary basis for the academic year 1999-2000 against Scheduled Tribe post. Following two paragraphs are relevant of the appointment letter for the present matter: “Your appointment is made on purely temporary basis for the Academic Year 1999-2000 only, against S.T. post.” “Your services shall be governed by the provisions of Shivaji Unversity Act, 1974 and the Statute, Ordinances, Regulations and Rules made thereunder from time to time.” 6 Pursuant to the said appointment letter issued by respondent no.2, respondent no.3 initially granted the approval to the appointment of Petitioner vide his letter dated 6th January, 2000. In the said approval it is stated that the said approval was only for the year 1999-2000 and also subject to the condition no.2. The condition no.2 of the said approval letter dated 6th January, 2000 states that post on which the Petitioner was appointed is reserved post of scheduled caste, therefore, the approval is granted only for one year. 5 wp 4883.02.doc 7 On receipt of the said approval letter, the Petitioner approached respondent no.3 regarding irregularity in the approval given by them. The petitioner submitted his letter dated 10th January, 2000 to respondent no.3. In the said letter, the Petitioner referred to Government Resolutions dated 5th December, 1994, 22nd December, 1995 and 20th February, 1996. He also referred to Government Resolution dated 5th December, 1994 explaining that during the six advertisements if the candidates on respective reserved category is not available the said reserved post can be filled by inter changing reservation category mentioned in the said Government Resolution. His appointment to be treated on vacant clear post reserved for Scheduled Caste candidate as he belongs to that category. But before taking any decision by the respondent no.3, the respondent no.2 issued termination order dated 18th March, 2000 to the Petitioner. In the said termination letter/order, it is stated that Petitioner’s services comes to an end after the office hours on 20th April, 2000. The said termination order was challenged by the Petitioner before the College Tribunal by preferring Appeal No.7 of 2000. In the said appeal Petitioner made following five prayers: “i) The termination order dated 18/03/2000 be set aside and declared as illegal and improper. 6 wp 4883.02.doc ii) The Respondent No.2 be directed to pay all the backwages due to termination. iii) The Appellant be treated as on duty for the period of his absence due to termination. iv) Any other decision be given in favour of the Appellant as this Hon’ble Tribunal thinks fit. v) The Appellant be allowed to change, to alter, to add or to delete in this Appeal Memo as and when necessary.” 8 The respondent no.3-University filed their written statement in support of the Petitioner’s appeal, whereas, respondent no.1 and 2 filed their written statement opposing Petitioner’s claim on several grounds. 9 After hearing both the sides, the learned Presiding Officer of College Tribunal dismissed the Petitioner’s appeal. Being aggrieved by the said order of College Tribunal, Petitioner prefers present Writ Petition on following grounds: “(a) The impugned Judgment and order passed by the Learned Presiding Officer is contrary to the provisions of law, principles of natural justice, 7 wp 4883.02.doc equity and good conscience and the same is liable to be quashed and set aside by the Order of this Hon’ble Court; (b) The Learned Presiding Officer has committed an error by not appreciating the fact that the Petitioner’s appointment is governed by the Government Resolution dated 5-12-1994, 22-12-1995 and Circular dated 20-2-1996 and in the circumstances, the impugned order of termination ought to have been quashed and set aside; (c) The Learned Presiding Officer has approached the entire case from erroneous point of view thereby misinterpreting the Government Resolution dated 22-12-1995 and Circular dated 20-2-1996 and it is pertinent to note that the petitioner’s appointment was against the S.C. Category of Reservation and the modification orders in respect of approvals have been not considered by the Presiding Officer and in the result it has resulted into miscarriage of justice; 8 wp 4883.02.doc (d) It is pertinent to note that the management has played mischief by way of inserting the words for one year with oblique motive to deprive the Petitioner from getting right of continuation in the College in question and moreover there was no necessity to discontinue the petitioner till the end of the academic year assuming for a moment as per the appointment, but before the end of the academic year the order of approval was modified specifying that Petitioner’s appointment should be continued in the light of Government Resolution dated 22-12-1995, but however, that order has been ignored by the Respondent No.1 and 2 herein and the Learned Presiding Officer has lost sight of the material orders issued by the Respondent No.3 herein and in the circumstances, the impugned Judgment and Order is not based on material evidence on record; (e) The observations and findings are recorded by the Learned Presiding Officer on surmises and conjectures and the Presiding Officer has not dealt with the Government Resolution in its proper 9 wp 4883.02.doc perspective so as to see that the Constitutional Mandate as regards the implementation of reservation policy cannot be ignored and in the instant case there is no whisper about the observation and compliance of the Reservation policy as far as quota of the S.C. Category of Reservation is concerned and the facts remain that the Advertisement in question was issued under Special Recruitment Drive for filling back log and in the circumstances, the Petitioner’s appointment ought to have been continued in the light of the Government Resolution dated 22-12-1995 and this aspect of the case has been not considered by the Learned Presiding Officer and in the circumstances, the Petitioner is entitled to be reinstated with full back wages since the petitioner has now become qualified teacher for the post in question and so as to safeguard the interest of reserved candidates, it was warranted on the part of the Learned Presiding Officer to interprete the Government Resolutions in its proper perspective so as to see that the Constitutional mandate as regards the implementation of reservation policy is brought into 10 wp 4883.02.doc force in its true letter and spirit and on account of not having considered the constitutional mandet in respect of reservation policy, it has resulted into miscarriage of justice and so as to secure the ends of justice, it will be just, proper and equitable to reinstate the Petitioner with full back wages thereby quashing and setting aside the impugned order of termination holding that the same is unwarranted and uncalled for; (f) Any other specific observations and findings which have been not specifically challenged are challenged hereby.” 10 The learned counsel appearing on behalf of Petitioner submits that the Tribunal erred in coming to the conclusion that Petitioner is not entitled to get the benefit of Government Resolution, dated 22nd December, 1995. He submits that it is specifically stated in Government Resolution dated 22nd December, 1995 that condition of passing NET/SET examination on or before 31st March.1996 is deleted and therefore, it is not necessary for petitioner to clear NET/SET examination before 11 wp 4883.02.doc particular time. He submits that in any case, the Petitioner cleared the NET/SET examination in July, 2000. 11 He submits that the Tribunal failed to consider that as per Government Resolution, dated 5th December, 1994 if the candidate belonging to Schedule Caste is not available for particular post for five years then in sixth year, on that post candidate belonging to scheduled tribe can be appointed and even if after sixth year a candidate is not available either of scheduled caste and/or scheduled tribe, then after following procedure i.e. obtaining permission from the authority post can be filled up by open category candidate. He submits that in the present case, the respondent no.2 gave advertisement stating that in spite of five advertisements scheduled caste candidate was not available for appointment. He submits that he belongs to scheduled caste category and therefore, respondent no.2 should have granted appointment letter as a candidate of scheduled caste category. As they failed to do so, petitioner approached respondent no.3 authority. Respondent no.3 authority issued modified approval dated 30th March, 2000 stating that petitioner’s appointment to be treated for the year 1999-2000 on temporary basis on condition that he should pass NET/SET examination. But before getting the said amended 12 wp 4883.02.doc approval from respondent no.3, the respondent no.2 issued termination order dated 18th March, 2000 terminating the Petitioner’s services. Therefore, Petitioner made representation dated 4th April, 2000 to the Saraswati Shinde Education Society- respondent, pointing out that he was appointed on a clear vacancy of scheduled caste candidate and therefore, they cannot terminate his services on the ground that Petitioner was appointed temporarily only for one year. 12 The learned counsel appearing on behalf of Petitioner further submits that even the University filed their written statement before the College Tribunal stating that they realized that as per Government Resolution, dated 5th December, 1994 Petitioner is entitled to appointment on adhoc basis as the Appellant had not passed NET/SET examination on the basis of Government Resolution, dated 22nd December, 1995. They further stated in their written statement that Appeal preferred by the petitioner may be allowed and appropriate relief be granted in favour of the petitioner. The learned counsel appearing on behalf of Petitioner submits that the respondent – college with malafide intention issued the appointment letter suppressing the facts that Petitioner’s appointment was on reserved category i.e. schedule caste category. He submits that 13 wp 4883.02.doc if a candidate of reserved category is available on fifth or sixth advertisement, then also it is binding on the College to appoint the said candidate on the reserved category only. The learned counsel appearing on behalf of Petitioner submits that all these facts were not considered by the learned College Tribunal and therefore, the impugned order passed by the Tribunal dated 13th August, 2001 is liable to be set aside. 13 The learned counsel appearing on behalf of respondent no.3-University supports the Petitioner’s case. He submits that as per Government Resolution dated 5th December, 1994, Petitioner has been appointed on scheduled caste category only. He submits that as soon as they learnt about their mistake in granting approval dated 6th January, 2000, they immediately issued modified approval dated 30th March, 2000 stating that Petitioner’s appointment is approved for the year 1999-2000 on temporary basis subject to clearance of NET/SET examination. On these submissions, the learned counsel appearing on behalf of respondent no.3-University submits that the impugned order passed by the College Tribunal is liable to be set aside. 14 On the other hand, the learned counsel appearing on behalf of respondent no.2 management submits that they 14 wp 4883.02.doc appointed petitioner purely on temporary basis for one year against scheduled tribe post. He specifically stated in his appointment letter dated 2nd August, 1999 that his appointment is made on purely temporary basis for the academic year 1999-2000 only against scheduled tribe post and therefore, petitioner cannot claim that he was appointed on clear post of scheduled caste candidate. He further submits that the Petitioner accepted the said appointment letter and joined services and thereafter started disputing the said appointment letter. He submits that in view of the Apex Court judgment in the matter of Dhananjay Mallik and others vs. State of Uttaranchal and others, reported in (2008) 4 SCC 171, the petitioner cannot dispute the contents of the appointment letter once he acted upon it. The paragraph 7 of the Apex Court’s judgment reads as under: “7. It is not disputed that the respondent-writ petitioners herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as BPE or graduate with diploma in Physical Education. Having unsuccessfully participated in the process of 15 wp 4883.02.doc selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the Rules.” 15 The learned counsel appearing on behalf of Respondent no.2 submits that they issued a termination letter dated 18th March, 2000, pursuant to the communication received from Joint Director of Higher Education Kolhapur Region, Kolhapur. It is specifically stated in the said letter dated 28th January, 2000 that in case of extreme necessity only, college should appoint Lecturer for a particular period otherwise he should be appointed on permanent basis. 16 The learned counsel appearing on behalf of respondent no.2 submits that the Petitioner cannot raise new ground in the present petition under Article 227 of the Constitution of India to challenge the impugned order passed by the College Tribunal. He submits that the advocate appearing on behalf of Petitioner before the Tribunal specifically made a statement and argued only to the point, whether in view of interpretation of Government Resolution dated 22nd December, 1995 and 20th 16 wp 4883.02.doc February, 1996, the petitioner is entitled to permanent post. Paragraph 1 of the impugned judgment passed by the Tribunal reads as under: “1. May it be noted at the very outset before I advert to discuss, appreciate, assess and ultimately assail the argument on behalf of the Appellant, that I got it very clear from the mouth of Mr.R.R.Sapre at the very commencement of his argument and also at the end of his argument that the Appellant should be deemed and treated to stand or fail on the limited question of interpretation of GRs dated 22-12-1995 and 20-2-1996 and that the existence of the Appellant vis-a-vis his appointment therefore, shall be dependent upon the application/non-application of the said GRs to his case. It should be therefore, made very clear at this very juncture that no other GR need to be considered by this Tribunal in this judgment except over these 2 GRs to decide the crux of the matter of which the point at issue has been raised.” 17 wp 4883.02.doc 17 He submits that in view of this specific statement made by the advocate appearing on behalf of Petitioner before the College Tribunal, the College Tribunal framed following point only for his consideration which reads as under: “Whether the Appellant who has been admittedly appointed on 20th August, 1999 i.e. after passing of the Government Resolution dated 22nd December, 1995 can seek the protection or could claim permanency over the post of Lecturer for which his appointment was caused on the said date despite his failing to pass SET/NET examination?.” 18 The learned counsel appearing on behalf of respondent no.2 submits that once a concession is granted by the advocate appearing on behalf of Petitioner before the College Tribunal, petitioner cannot raise additional issues in the present writ petition under Article 227 of the Constitution of India. In support of his contention, he relies on the judgment in the matter of Bank of Bihar vs. Mahabir Lal and others, reported in AIR 1964 SC 377. 19 In that case, the Apex Court held that where a statement appears in judgment of a court that a particular thing happen or 18 wp 4883.02.doc did not happen before it, it ought not ordinarily to be permitted to be challenged by the party unless of-course both the parties to the litigation agree that the statement is wrong. The relevant portion of the judgment in paragraph 5 reads thus: “The High Court then pointed out that Mr. De placed reliance upon certain decisions of the Calcutta and Bombay High Courts and S. 85 of the Negotiable Instruments Act. Before us, however, it is urged on behalf of the Bank that no such concession was made by Mr. De. The second defendant has filed an affidavit which counters the statement made on behalf of the Bank. In our opinion where a statement appears in the judgment of a court that a particular thing happened or did not happen before it, it ought not ordinarily to be permitted to be challenged by a party unless of course both the parties to the litigation agree that the statement is wrong, or the court itself admits that the statement is erroneous. If the High Court had proceeded on an erroneous impression that Mr. De had conceded that the money was taken along with him by 19 wp 4883.02.doc Ram Bharosa Singh to Patna, there was nothing easier for the Bank than to prefer an application for review before the High Court after the judgment was pronounced or if the judgment was read out in court immediately draw the attention of the Court to the error in the statement. Nothing of the kind was done by the Bank. It is too late for the Bank now to say that the statement was wrong. It appears to have been argued on behalf of the Bank in the trial court alternatively that even on the assumption that the money was taken to Patna by Ram Bharosa Singh, the suit must be decreed. We, therefore, see nothing strange in Mr. De making a concession of the kind attributed to him by the High Court. In the circumstances we decline to go behind what is contained in the judgment of the High Court, quoted earlier.” 20 The learned counsel appearing on behalf of respondent no.2 also relies on judgment in the matter of Chitra Kumar (Smt.) vs. Union of India and others, reported in (2001) 3 SCC 208. In that case, the Apex court held that it is settled law 20 wp 4883.02.doc that one has to proceed on the basis of what has been recorded by the court, if any party feels aggrieved by what has been recorded by the court, a clarification has to be sought from the same court. Paragraph no.35 of that judgment reads as under: “35. When the Respondents went in Second Appeal before the High Court, at this stage also, no cross objections were filed. Before the High Court it was not disputed that the land was on old grant terms. The High Court has so recorded in its Judgment. It is settled law that one has to proceed on the basis of what has been recorded by the Court. If any party feels aggrieved by what has been recorded by the Courts a clarification has to be sought from that same Court. In this case the clarification was sought, by way of the Review Petition, to which as stated above, fresh documents were purported to be attached for the first time. The High Court has rejected the Review Petition. The High Court has thus confirmed that at the time the Second Appeal was argued it was not disputed that the land was on old grant terms. This Court has to go by what has been recorded in 21 wp 4883.02.doc the Judgement. What is recorded in the Judgment is supported by the conduct of the parties inasmuch as no evidence was led to dispute the fact, no documents were tendered or marked as Exhibits and no submissions were made on this aspect. That it was not disputed that the land was on old grant terms is also supported by what has been recorded in the Judgments of the trial court and the First Appellate Court. There is no evidence that the written admissions were taken forciby and/or that they were not binding or not correct. Admissions are relevant evidence if not explained away. Thus these cases have been fought over the last 17 years on an admitted position. Mr. Rohatgi is right that it would be a travesty of justice and would amount to permitting parties to misuse laws’ delays if at this stage they are permitted to change their stand and take contentions which are contrary to what has been the admitted position all these years.” 21 On the basis of these two authorities, the learned counsel appearing on behalf of respondent no.2-management submits 22 wp 4883.02.doc that Petitioner is precluded from raising any other issue except applicability of Government Resolution, dated 22nd December, 1995 in the present case. 22 He further submits that admittedly as per the appointment letter dated 2nd August, 1999, the Petitioner was appointed for the academic year 1999-2000 only against scheduled tribe post. Therefore, they terminated petitioner’s services by letter dated 18th March, 2000 on the ground that no longer they required his services with effect from 20th April, 2000. He further submits that even the initial approval granted by respondent no.3 by the letter dated 6th January, 2000 was only for one year. Therefore, petitioner cannot claim any right on the said post. He submits that the Apex Court in the matter of Hindustan Education Society and another vs. Sk. Kaleem Sk.Gulam Nabi and others, reported in AIR 1997 SC 2126 held that the employee who is appointed on purely temporary basis cannot get any right in that post after that period is over. Paragraph 5 of that judgment reads as under: “5 In view of the above and the order of appointment, the appointment of the respondent was purely temporary for a limited period. 23 wp 4883.02.doc Obviously, the approval given by the competent authority was for that temporary appointment. As regards permanent appointments, they are regulated by sub-sections (1)