Pragati Mahila Samaj & Anr vs Arun S/O Laxman Zurmure & Ors

3. Facts of the case lie in a narrow compass. They, however, need mention in brief to appreciate the short controversy involved in the appeal. The facts are taken from the SLP.

4. Pragati Mahila Mahavidyalaya (appellant No.2 herein) is a girls college at Bhandara, Maharashtra. It is run by appellant No. 1, which is a registered trust/society at Bhandara. The appellant No. 2 published an advertisement on 23.06.1996 inviting application for the posts of Lecturers. The respondent No.1 was selected and was accordingly given appointment for the post of Lecturer in Geography as part-time Lecturer vide appointment order dated 20.07.1996. The appointment was temporary. It was for a fixed period from 01.08.1996 to 30.04.1997. It came to an end by efflux of time. In the Academic Session 1997-1998, another advertisement was issued and vide appointment order dated 21.07.1997, respondent No. 1 was appointed as part-time Lecturer in Geography on temporary basis upto 30.04.1998. On 21.03.1998, the Nagpur University (respondent No.2 herein) granted approval to the appointment of respondent No.1 as a part-time Lecturer.

5. According to the respondent No.1, he was appointed as full-time Lecturer. The respondent No.1 also made a complaint to the Grievance Committee of the University to this effect. However, vide order dated 31.03.1998 (Ann. 5), the services of respondent No.1 were terminated w.e.f. 30.04.1998.

6. Challenging the order of termination, respondent No.1 filed an appeal being Appeal No. N-10 of 1998 before the University and College Tribunal, Nagpur (in short “the Tribunal”) under Section 59 of the Maharashtra University Act, 1994. By order dated 05.08.1998, the Tribunal dismissed the appeal and upheld the termination order. It was held that the respondent No.1 was not appointed on a regular basis but his appointment was only on temporary/ad-hoc basis and it was for a specified term as a part-time Lecturer.

7. The respondent No.1, felt aggrieved, filed a writ petition being Writ Petition No. 2374 of 1999 before the High Court praying for setting aside of the order of Tribunal dated 05.08.1998 passed in Appeal No. N-10 of 1998. The High Court vide order dated 16.12.2008 partly allowed the writ petition and set aside the order of Tribunal dated 05.08.1998 and in consequence also set aside the termination order dated 31.03.1998. The High Court further directed the Management to reinstate the respondent No.1 in services but without payment of any back wages to the respondent No.1.

8. Challenging the said order, the College filed an appeal being L.P.A. No. 26 of 2009 before the Division Bench of the High Court.

10. After remand, the writ petition was restored to its original number, i.e. W.P. No. 2374 of 1999. It was, however, dismissed for want of prosecution by order dated 08.07.2010.

11. Thereafter an application being Civil Application No. 149 of 2010 was filed by respondent No.1 for restoration of the writ petition. It was also dismissed in default on 08.04.2011.

12. In 2012, the respondent No.1 filed another application for restoration of the writ petition. It is, however, not clear from the pleadings as to by which order, the Writ Petition was restored to its file. Be that as it may, vide impugned judgment dated 01.08.2014, the Single Judge allowed the writ petition, set aside the order dated 05.08.1998 passed by the Tribunal in Appeal No. N-10/1998 and quashed the termination order dated 31.03.1998. It was held that the advertisement (Ann.1) nowhere said that the appointment is temporary. It was also held that since the appointment was made on the basis of selection and interview and hence it has to be held as permanent. The direction was issued to reinstate the respondent No. 1 in service but without paying him any back wages for long intervening period.

19. Learned Counsel, therefore, submitted that keeping in view the provisions of the Act and the law laid down in Hindustan Education Society's case (supra), which again was not taken note of by the High Court, the impugned order cannot be said to be passed in conformity with the law and hence it is not legally sustainable. It was lastly urged that the writ petition filed by respondent No.1 is, therefore, liable to be dismissed by upholding the order of the Tribunal and in consequence of the termination order.

(3) 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.

(5) The Management may fill in every temporary vacancy by appointing a person duly qualified to fill such vacancy. The order of appointment shall be drawn up in the form prescribed in that behalf, and shall state the period of appointment of such person.”

5. In view of the above and the order of appointment, the appointment of the respondent was purely temporary for a limited period. Obviously, the approval given by the competent authority was for that temporary appointment. As regards permanent appointments, they are regulated by sub- sections (1) and (2) of Section 5 of the Act according to which the Management shall, as soon as possible, fill up, in the manner prescribed, every permanent vacancy in a private school by appointment of a person duly qualified to fill in such vacancy. Every person so appointed shall be put on probation for a period of two years subject to the provisions of sub- sections (4) and (5). He shall, on completion of the probation period of two years, be confirmed.

6. Under these circumstances, the appointment of the respondent cannot be considered to be a permanent appointment. As a consequence, the direction issued by the High Court in the impugned judgment dated 31-7-1996 in Writ Petition No. 5821 of 1995 that he was regularly appointed is clearly illegal and cannot be sustained.

7. The appeal is, accordingly, allowed. The order of the High Court stands reversed and the writ petition stands dismissed. No costs.”

30. In view of foregoing discussion, we cannot concur with the view taken by the High Court, which, in our opinion, is not legally sustainable.

31. The appeal thus succeeds and is allowed. Impugned order is set aside and that of the Tribunal restored. As a result, the writ petition filed by respondent No.1 (employee) stands dismissed and the termination order dated 31.03.1998 is upheld as legal.