Research › Search › Judgment

Bombay High Court · body

2019 DIGILAW 275 (BOM)

Neela Pradeep Kamat v. Gokhale Education Society

2019-01-30

BHARATI H.DANGRE, S.C.DHARMADHIKARI

body2019
JUDGMENT : Bharati H. Dangre, J. The present Writ Petition was admitted by this Court on 10.02.2004, and the following order was passed: Heard parties. Rule. Respondents waive service. Interim relief in terms of prayer (b). However, we make it clear that the State shall release salary grant for the petitioner only with effect from the date of filing of the petition i.e. December 2003. All the parties concerned to act on the ordinary copy of this order duly authenticated by the Private Secretary to this Court." With the said interim order being in operation, the petition was listed before us and by consent of parties we have heard the petition finally on 05.12.2018. 2. The present petition is filed by two petitioners seeking issuance of Writ for quashing and setting aside order dated 25.09.2003 and further seeking directions to the respondents for treating the petitioners as full time permanent lecturers in time scale of pay with and to pay the difference of wages as arrears resulting from the implementation of the impugned order. Pending the said Writ petition, the prayer clause was amended and the petitioners also seek relief of quashing of the Government Resolution dated 25th July 2002 and 19th July 2003 as being unconstitutional and bad in law. 3. The petitioners are the confirmed employees in the College of Education and Research run by the respondent No.1 Gokhale Education Society. The respondent No.3 is the University of the Mumbai whereas the respondent No.4 is a Joint Director of Higher and Technical Education. The State of Maharashtra, through the Director of Higher and Technical Education is impleaded as respondent No.5 to the petition. The petitioner No.1 is possessing qualification of M.Sc. M.Ed. and she has also cleared NET examination whereas the petitioner No.2 possess qualification of M.A. M.Ed., and has passed SET examination. Both the petitioners claimed to be fully qualified to be appointed as lecturer. In pursuance to an advertisement issued by the Respondent No.1 society, inviting applications for various posts including two posts of lecturers, the petitioners, finding themselves to be qualified in terms of the Educational Qualification and also in view of the fact that the post of lecturer was advertised for Open Category and since both of them belong to the said category, applied and were subjected to an interview process at the hands of the duly constituted Selection Committee of the University. The appointment orders were issued in favour of the petitioner on 04.08.2000. The petitioner No.1 came to be appointed in full time post of lecturer in Education (Science) whereas the petitioner No.2 was appointed as full time lecturer in Education (Geography). The appointment order also stipulated that they were appointed on probation of two years. The advertisement and also the orders of the appointment have been placed on record by the petitioners. It is the claim of the petitioners that from the date of issuance of the appointment order, both the petitioners have been continuously working on the post of full time lecturer and drawing the salary in the pay prescribed and sanctioned by the Government. The appointment of the petitioners was also approved by the respondent No.3 University on probation from 28.08.2000. Relying on the rule of the University which confers permanency on completion of two years probation service, the petitioners assume that they are confirmed full time lecturers in the respective subjects. 4. The petitioner felt aggrieved when on 18.09.2003, the Joint Director of Education issued a letter to the respondent Management, thereby intimating that in respect of two open post of lecturers in Education which are required to be filled up, the same should be filled on contract basis of consolidated salary of Rs. 8,000/per month. The said communication dated 18.09.2003 addressed by the Joint Director of Higher Education to the Management is placed on record. The said communication cautioned the Management that it was necessary, before filling up all the posts, to issue an advertisement and any appointments made in violation of the said directions are not admissible for salary grant from the State Government. The said communication also contained a direction that the post becoming vacant after 01.03.2000 on account of any contingency would be filled in on the consolidated salary of Rs. 8,000/per month. The stance adopted by the petitioners is that their appointment was made prior to the cut off date and as per staffing pattern, in the college there were two vacancies and the petitioners, therefore, construed that letter dated 18.09.2003 referred to these vacancies which are yet to be filled in and not already filled in vacancies, and the posts which petitioners are holding. The petitioners were communicated by letter dated 25.09.2003 stating that their appointment is effected on consolidated salary of Rs. 8,000/per month and an amount of Rs. The petitioners were communicated by letter dated 25.09.2003 stating that their appointment is effected on consolidated salary of Rs. 8,000/per month and an amount of Rs. 2,000/per month will be deducted from the amount of Rs. 8,000/towards the past salary. The petitioners addressed communication to the Principal of the respondent No.2 and also to the Joint Director of Education and objected to conversion of their posts from full time to contractual basis. 5. Being aggrieved by the said action of the respondents, the petitioner approached the Court by filing the present Writ Petition and in the petition they have objected to the said action on the ground that both the petitioners were fully qualified to be appointed as lecturers and came to be recruited after following the prescribed procedure of selection. The relief is further sought on the ground that both the petitioners belong to Open category and they were placed on probation and therefore they are deemed to be confirmed as lecturers and it is not open to the respondents to convert the petitioners from regular lecturers to contractual lecturers. It is also ground set out in the petition that in any event the notification concerning contract teachers is applicable to the vacancies to be filled in after July 2002 and since the petitioners were appointed before the said date the said notification is not applicable to the case of the petitioners. During the pendency of the petition the petitioners have placed on record an additional affidavit affirmed on 07.12.2015 and a statement is made in the affidavit that they have continued as lecturers in the respondent No.1 College and are in continuous service and while in service they have undergone requisite orientation courses, refresher courses and other additional qualifications like the Post Graduation Diploma in Higher Education etc. The said certificates have also been placed on record and it is then stated in the affidavit that this qualification makes the petitioners eligible for Career Advancement Benefit, due to them in terms of the number of years in service put in by the petitioners. 6. The said certificates have also been placed on record and it is then stated in the affidavit that this qualification makes the petitioners eligible for Career Advancement Benefit, due to them in terms of the number of years in service put in by the petitioners. 6. In response to the petition, the Principal of the respondent No.2 College has placed an affidavit on record and it is stated that the State Government took a decision to make appointments on a fixed consolidated salary in the backdrop of the financial crunch and in terms of the said policy of the Government, the Joint Director of Higher Education, Mumbai instructed the Management and sanctioned two posts of lecturers on a consolidated salary of Rs. 8,000/. It is then stated that the respondent Management had no alternative but to put an end to the temporary appointment as the Management was not in a position to bear their salary from their funds as college is run on grantinaid basis. The impugned letter dated 25.09.2003 is thus sought to be justified and it is stated that the decision of the State Government came to be communicated to the petitioners and their appointment was approved on consolidated salary of Rs. 8,000/, in view of the policy decision of the State Government applicable to all the colleges in the State. It was also directed that the excess amount paid to the petitioners from the society fund would be deducted from their future salary in terms of the undertaking given by the petitioners. An affidavit is also filed by the Joint Director of Higher Education, Mumbai Region and it is stated that the Management has made the appointments of the petitioners without obtaining permission or waiting for the No Objection from the State Government and created financial liability on the Government. It is further stated that the Management has paid salary to the petitioners from the salary account. The stand of the Management that they have been paid from the funds of the society is disputed. The appointments of the petitioners are therefore clamped as irregular as they are effected by the society without following proper procedure. 7. We have heard the learned Senior Counsel Mr. Mihir Desai for the petitioner and Mr. Rui Rodrigues for the respondent No.3 University and also the learned Assistant Government Pleader for respondent Nos.4 and 5. 8. The appointments of the petitioners are therefore clamped as irregular as they are effected by the society without following proper procedure. 7. We have heard the learned Senior Counsel Mr. Mihir Desai for the petitioner and Mr. Rui Rodrigues for the respondent No.3 University and also the learned Assistant Government Pleader for respondent Nos.4 and 5. 8. With the assistance of the respective counsel we have perused the petition along with its annexures and also the affidavits tendered on record. It is not in dispute that the petitioners were duly qualified to be recruited as lecturers and an advertisement was issued by the College inviting applications for two open post of Lecturer in Education (Method/Special) Maths/Science/Geography/Marathi. The advertisement mentioned that the qualifications and pay scales for all the posts are as prescribed by the University of Mumbai from time to time. It is not disputed that the petitioners possess requisite educational qualifications and after following due process for selection and being interviewed by duly constituted selection committee, they came to be appointed to the full time post in education with effect from 05.08.2000. Their services would be governed by the provisions of the Statutes, Ordinance, Regulations and rules of the Mumbai University Act, 1994, for the time being in force. The order also mentioned that the appointment is for two years and is terminable with one month notice without issuing any reason and is on the pay prescribed/approved sanctioned by the Government for the concerned post. On issuance of such an appointment order, the petitioners resumed the post and approval was granted by the University to the appointment of the petitioners in the time scale of pay with the regular increments. In the year 2002 and to be precise, on 25.07.2002 the State Government came up with the policy that the vacant post henceforth would be filled in on contract basis by recruiting teachers/lecturers on a fixed honorarium on Rs. 8,000/-per month. In the wake of the policy decision, the Joint Director addressed a letter to the respondent Management directing that two open posts should be filled in on contract basis. 8,000/-per month. In the wake of the policy decision, the Joint Director addressed a letter to the respondent Management directing that two open posts should be filled in on contract basis. A careful perusal of the said communication would reveal that the Government had directed the post becoming vacant after 01.03.2000 should not be filled without Government's permission and if it is essential to fill up this post that the permissions have to be obtained from a committee constituted by the Finance Department dated 01.03.2000. By the said communication issued on 18.09.2003 the Principal of Gokhale Education Society, College of Education and Research, Parel, Mumbai was granted permission to fill up the two posts of lecturers in the establishment on the consolidated salary of Rs. 8,000/-per month. It was desirable that the candidates possess the necessary qualification and would be selected only on recommendations of the selection committee constituted in terms of the Government Resolution dated 25.07.2000. The communication then prescribed procedure to be followed before filling up the said post including the issuance of an advertisement in the State level news paper with the restriction of not filling up the post on part time basis. The Management on receipt of this letter promptly appointed the petitioners on contract basis of Rs. 8,000/-per month and issued an order directing recovery of an amount of Rs. 2,000/per month to be deducted from their salary for recovery. 9. On the petitioner's approaching this Court, by filing the present Writ Petition, this Court while admitting the Writ Petition directed the respondents to continue with the employment of the petitioners as full time lecturers on time scale of pay and pay the wages as per prescribed pay which have been paid to them from the time of their initial appointment. The Division Bench of this Court on 10.02.2004, however, clarified that the State shall release salary grant for the petitioners only with effect from date of filing of the petition i.e. December 2003. The said order passed on 10.02.2004 is in operation as on date and the petitioners are availing the benefit of regular salary in the prescribed time scale of pay of lecturer from December 2003. 10. The said order passed on 10.02.2004 is in operation as on date and the petitioners are availing the benefit of regular salary in the prescribed time scale of pay of lecturer from December 2003. 10. In light of the factual assertion in the petition to the effect that both the petitioners have been duly qualified and selected by duly constituted selection committee then appointed on a probation for the period of two years to which there is no denial by any of the respondents, we have no hesitation in holding that the petitioners have completed their period of probation. The appointment of the petitioners was on the terms and conditions stipulated in the order of appointment and the respondents are bound by the said terms of the appointment. Change in the policy of the State Government at a subsequent point of time would not permit the respondent State to convert the appointment of the petitioners from regular lecturers to lecturers on contractual basis. Such change in conditions of services are not permissible specifically when the petitioners had accepted the terms and conditions contained in the appointment letter effective from 5.08.2000 and the appointments were approved even by the University in the backdrop of the educational qualifications of the petitioners. The action of the respondent No.3 in directing the conversion of the post of the petitioners to contractual teachers cannot be sustained in view of the fact that the petitioners were already confirmed on completion of their period of probation and the change in policy of the State Government cannot adversely affect the appointments of the petitioners which were made prior to July 2002. It is also doubtful as to whether the communication dated 18.09.2003 makes a reference to the appointment of the petitioners, since it is specific case of the petitioners that there were two additional vacancies in the college and the letter dated 18.09.2003 makes a reference to these vacancies. In any contingency, we are not inclined to open the said issue after lapse of almost more than one and half decade when the petitioners are now at the fag end of their service and were continued under the umbrella of protective orders passed by this Court in their favour. In any contingency, we are not inclined to open the said issue after lapse of almost more than one and half decade when the petitioners are now at the fag end of their service and were continued under the umbrella of protective orders passed by this Court in their favour. The petitioners have all the while been paid the applicable pay-scales in terms of the interim directions issued by this Court on 10.02.2004 as full time lecturers with all ancillary benefits attached to the said post. There is no justiciable reason offered by the respondent to disturb the said position and in particular when it is not the respondents case that the petitioners were not qualified to occupy the said post on which they are appointed or there is any apparent illegality in their appointment. 11. In such circumstances, we are inclined to allow the Writ Petition and make the Rule absolute by quashing and setting aside the order dated 25.09.2003 issued by the respondent No.3. In the factual context of the matter, we are convinced that the petitioner is entitled for the relief sought in the petition in terms of prayer clause (a). In these peculiar circumstances we refrain ourselves from going into the merits of the earlier decision of the State Government for effecting appointment on contractual basis and the prayer of the petitioner for quashing and setting aside the Government Resolution dated 25.07.2002 is not dealt by us at all. We direct that the petitioners be treated as full time permanent lecturers in the time scale of pay which was conferred on them by the interim orders passed by this Court on 10.02.2004. In terms of the length of service put in by the petitioners if they are entitled for any benefits of Career Advancement, then, it is directed that the respondent No.3 should confer the said benefits on the petitioners forthwith. 12. The Writ Petition stand disposed of. No costs.