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SPB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2332 OF 2007
Harshendu Vinayak Madge, age 45 yrs. ¦
R/at Nav Durga Complex, C-101, ¦
Sector XIX A, Nerul (East), ¦
Navi Mumbai 400 076 ¦ .. Petitioner.
Vs.
1. Chembur Trombay Education Society, ¦
through its Secretary, office at ¦
Mumbai 400 071.
N.G.Acharya College, Chembur, ¦
¦
¦
2. N.G. Acharya & D.K.Mrathe College ¦
of Arts, Science & Commerce, through¦
its Principal. ¦
¦
3. The University of Mumbai, through ¦
its Registrar, Fort Mumbai-32. ¦
¦
4. State of Maharashtra, through its ¦
Department of Higher & Technical ¦
Education, Mantralaya, Annexe ¦
Mumbai-32. ¦
¦
5. Mr. Chandrakant Susane, ¦
R/at Lok Manya Nagar, Pada No.4, ¦
Near Santoshi Mata Temple, Thane-606¦ .. Respondents.
---
Mr. Mihir Desai for the Petitioner.
Mr. Abhay L. Patil for the Respondents 1 and 2.
Mr.R.A.Rodriques for the Respondent No.3.
Mr. S.S. Joshi, AGP for the Respondent No.4-State.
Mr. A.Abdi i/by M/s. Abdi & Co. for the Respnodent No.5.
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---
CORAM : F.I.REBELLO & R.S. MOHITE, JJ.
DATED : 19th NOVEMBER, 2008.
JUDGEMENT :-
1. Rule. Heard forthwith.
2. The petitioner was employed with respondent no.2
which is an institution run by the respondent no.1, as a
Lecturer in Philosophy in Foundation Course. The
petitioner on initial selection joined respondent no.2
college
petitioner
on
was
27.6.1994.
not by
Initial
a duly
appointment
constituted
of
selection
the
committee. The petitioner since 1996 on selection
continued to serve in the said post. As the post was
reserved, the petitioner was selected and appointed every
year after due advertisement, continuously, till his
termination on 31.07.2003 on account of being rendered
surplus. The post was reserved for S.C.candidate.
3. The respondent nos. 1 and 2 to fill in the post
which was reserved for SC candidate, advertised the same
on 7th of June, 1996, 30th of May, 1997, 02nd September,
1998, 28th May, 1999, 24th March, 2000 as also on 22nd
November, 2001. There was no advertisement in the year
2002-2003 as apparently the post was declared surplus and
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the services of the petitioner were terminated w.e.f.
1st of May, 2002. The post was again re-advertised on
31.07.2003, wherein it was shown as interchangeable
between SC/ST. No SC/ST candidates applied. The post
was again advertised as interchangeable on 16.06.2004 for
the academic year 2004-2005. Pursuant to that
advertisement a candidate belonging to S.C.category
applied. The respondent no.5, as a reserved candidate
and eligible was selected.
4. The petitioner in the course of his employment,
on
19th April, 2002 was issued a letter, terminating his
services from 1st of May, 2002. The petitioner, filed a
writ petition, being writ petition no. 1935/2002 before
this court for various reliefs. The respondent no.1
filed an affidavit, stating that the petitioner could not
be continued in the academic year 2002-2003 because the
Joint Director of Education had not given a ” no
objection” for filling up the post. In the same
petition, affidavit-in-reply was filed by the University
stating that unless papers, concerning de-reservation are
submitted to them, they were not in a position to proceed
ahead with the dereservation. In the light of the
affidavit, the petitioner withdrew the petition to
approach the college tribunal against the order of
termination. The petitioner accordingly, filed an appeal
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being appeal no. 99/2002. The said appeal came to be
decided by the judgment dated 13th of February, 2003.
The Tribunal ordered that the termination of services of
the petitioner be set aside and the petitioner was
directed to be taken back. The State Government was
directed to pay the wages of the petitioner. The
petitioner, accordingly, was taken back in service.
5. A proposal for dereservation dated 20th of March,
2003 was submitted to the university and the petitioner
was accordingly informed by letter dated 21st of April,
2003. Subsequent
ig to the proposal forwarded for
de-reservation, two further advertisements were issued on
31st of July, 2003 and 13th June, 2004 for appointment to
the post, showing the post as interchangeable.
6. According to the petitioner, once the college had
submitted the proposal for de-reservation, there was no
reason for the college to advertise the said post once
again. In terms of the G.R. of 5th December, 1994, once
the post is advertised on six occasions and a reserved
category candidate was not available, the said post
becomes ripe for dereservation. As the petitioner
apprehended that his service would be terminated,
petitioner filed writ petition no. 2248 of 2005 before
this court. An order came to be passed, restraining the
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respondents from terminating the services of the
petitioner. The said petition was finally disposed of on
15th December, 2006, directing the University to forward
the proposal for de-reservation to the State Government.
The State Government in turn was to take necessary
decision. Petitioner received a communication dated 09th
of October, 2007 from the college, informing that the
State Government had rejected the proposal of
de-reservation in terms of the communication received by
them from the university. The university was informed by
the State Government of the decision not to deserve the
post by communication of 14/24th September, 2007.
7. The petitioner by this petition challenges the
said communication whereby his case for dereservation has
been rejected with a further prayer that the petitioner’s
back wages for the period from June 2002 to February,
2003 be paid, considering the order of the Tribunal in
the appeal preferred by the petitioner.
8. Reply has been filed on behalf of the respondent
no.4 by Usha Ravindra Parab. The petition, it is
averred, ought to be dismissed, as the condition in the
circular on the basis of which dereservation of the post
was sought had not been complied with. The circular
contemplates interchangeability in the reserved post in
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the 6th year from amongst other backward classes as per
the Government resolution dated 5th of December,1994.
There were three sanctioned posts of Lecturers in
Philosophy to teach foundation course out of which the
post under dispute was reserved. If the post is
dereserved then the provisions of 50% reservation for
backward class categories laid down by the government
G.R. dated 18th October, 1997 cannot be maintained. The
regularization, it is averred cannot be a mode of
employment for a candidate from the open category in
respect of the post reserved for backward class. The
respondent no.4
igafter considering the proposal for
de-reservation and other prevailing service circulars,
rejected the proposal for dereservation.
9. Reply has also been filed by the Registrar of the
University. As per order of this court dated 15th
December, 2006, the University sent a letter dated 4th of
January 2007, asking proposal to be sent to the State
Government for dereservation. The University had
forwarded the said proposal by the letter dated 6th of
June, 2006. The university received a reply from the
State Government vide their letter dated 24th of
September, 2007 that the proposal for dereservation had
been rejected on the ground that the respondent no.5 had
been selected on that post. The college had advertised
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the post from 1997 to 2001 for the scheduled caste
category. However, no candidate of the said category was
available for appointment on the said post. In the year
2002, the post was advertised with interchangeability
clause according to the G.R. dated 5thof December, 1994
and the University Circular dated 25th of January, 1995.
10. In the reply filed by the respondent nos. 1 and
2, it is contended that the proposal for de-reservation
was submitted by the college in the year 2003. The same
was not responded to by the University of Mumbai. The
petitioner
had, therefore, approached this court by writ
petition no. 2248 /2005, seeking directions to the State
Government to sanction the proposal for dereservation.
Directions were issued by this court to forward the
proposal to the State Government and then for the State
Government to take action thereon. The College had
issued necessary advertisement from year to year for
selection of the reserved candidate. In response to the
advertisement for the year 2003, reserved category
candidate came to be recommended by the duly appointed
selection committee. The process of dereservation had
already begun. The appointment to the said post of
regularly appointed open category candidate should also
have to be taken into consideration.
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11. Respondent no. 5 Chandrakant Sasane has filed
his reply. According to his affidavit, pursuant to the
advertisement he had applied for the said post and was
interviewed on September 14, 2004 and was selected. As
respondent no.5 was the only reserved category candidate,
he ought to have been considered for appointment to the
said post.
12. At the outset it may be mentioned that even if
the case of the respondent no.5 is considered, no relief
can be granted to him as the post has since become
surplus
and the service of the petitioner terminated on
that ground. Apart from that, the petition filed by the
respondent before this court that he should be appointed,
has been disposed off on the ground, that for similar
reason no relief can be granted.
13. The true import of the communication of 4th of
October, 2007 may first be considered. The case of the
petitioner was rejected on the ground that advertisement
was given in 2002 for interchangeability and Shri
Chandrakant Sasane, a qualified candidate was available.
This is the only reason given for rejecting the proposal
for de-reservation of the post. From the facts noted
earlier Shri Chandrakant Sasane, Respondent no.5 did not
apply pursuant to the advertisement of 2002. Respondent
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no.5 applied for the first time pursuant to the
advertisement dated 16.06.2004 and was interviewed
thereafter. The rejection of the proposal of
dereservation of the post held by the petitioner, is
based on a non-existing fact. The formation of opinion
in arriving at a conclusion that the post cannot be
dereserved is consequently vitiated. On this ground
alone, the communication of 14th/24th September, 2007 is
liable to be set aside.
14. In our opinion, the matter requires further
consideration
as certain other issues will have to be
considered, more so as the petitioner has been moving
this court apart from the present petition by earlier
petition, the first one being writ petition 1935/2002.
The relevant circular of the University and the
Government resolution require that if inspite of the 5th
advertisement, if no reserved candidate is available, in
the 6th year, action shall be taken to fill up the
reserved post by advertising interchangeability from
amongst the backward class candidates, as per the
university circular dated 11th March, 1987 and the
subsequent circular dated 17th July, 1995. A combined
reading of the two circulars provide that if in the 6th
year, a reserved category candidate is not available then
action for filling up the said post from open category
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shall be taken up with the approval of Higher & Technical
and Employment/ General Administration Department after
following the procedure for advertisement. Once the post
is dereserved in terms of the circular the appointment of
non- backward class teacher shall be deemed to be on
probation with retrospective effect from the date of
initial appointment. If such candidate has held
continuous appointment for two years in the college and
in the same management then such appointment shall be
confirmed from the date of completion of two years of
continuous appointment. This circular, therefore, gives
a
right in the candidate selected in the 6th year after
due publication if a reserved category candidate was not
available to legitimately expect the management to apply
for dereservation of the post and the univeristy and the
government to act in terms of their circular and G.R..
15. The post was continuously advertised from the
year 1996-97 to 2000-2001. The post was not advertised
in the year 2002 on account of the appeal pending before
the University Tribunal but was again advertised in 2003
and then once again in 2004. When the post was
advertised in the year 2001, the interchangeability
clause was not included. The interchangeability clause
was, however, included in the advertisement dated 31st
July 2003. The petitioner was selected on both occasions
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and no backward class candidate was available. According
to the management they sent the proposal for
dereservation in the year 2003.
16. Before considering the issue in the context of
the legal right of the petitioner we may consider some of
the unreported judgments of this court for a proper
construction of the government G.R. and university
circulars earlier referred to. In writ petition no.
2676 of 2004 in the case of Mrs.Chandana M. Rege vs.
The Principal Ramnarain Ruia College of Arts & Science,
Mumbai, decided on 11th April, 2005, this court had noted
that in writ petition no. 2675/2005 in the case of Ms.
Aditi Abhyankar, the Government had approved
regularisation without advertisement of
interchangeability clause. In that context this court
held that advertisement is not mandatory and the
condition can be relaxed. Reference, therefore, was also
made to the judgment in writ petition 3101 of 2004
decided on 26th of April, 2005 in the case of Ashok
Chandrashekar Rao vs. University of Mumbai & ors., where
this court took the view that in the event there has been
substantial compliance, ordinarily the government ought
to de-reserve the post in terms of the resolution as long
as there are no malafides and that the attempt was not to
protect the candidates from the open category.
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Therefore, the test of substantial compliance has been
judicially recognized whilst considering dereservation of
a reserved post in terms of government G.R.. This was
also reiterated in the case of Supriya Habbu vs. K.V.
Pendharkar College of Arts, Science and Commerce in writ
petition 2141 of 1998 decided on 2nd of May, 2005. It is
not necessary to refer to the various other judgments.
The test of sufficient compliance by virtue of these
judicial orders, will have to be considered while
considering the action of the government in rejecting the
application for dereservation in the case of the
petitioner.
17. As noted in the various judgments, which
considered the government G.R. that the object of
reservation is affirmative action by the State so as to
bring socio-economic equality based on the constitutional
mandate enshrined in our Constitution. At the same time,
the State Government which has provided for reservation
in confirmity with the constitutional mandate also has
provided for de-reservation in the event reserved
category candidates are not available, thereby also
accepting the principle that a teaching post be not left
vacant for long time nor an incumbent selected to the
post be allowed to languish in the post by not
regularising him inspite of long years of service even
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though a reserved category candidate is not available
even after the post is continuously advertised for six
years.
18. On the touch stone of this, let us now consider
the facts and issues involved in this case. Admittedly,
right from 1996 till 2003 and before that since 1994, the
petitioner has been continuously working on the said
post. The appointment being against reserved post was
year to year after following due procedure including
advertisement. In the year 2001 for the academic year
2001-02 it was necessary for the respondent nos. 1 and 2
to have advertised the post by showing the clause of
interchangeability. This exercise was not in the hand of
the petitioner but required compliance by respondent nos.
1 and 2. The respondent nos. 1 and 2 failed to comply
with the said requirement. The petitioner’s services in
between came to be terminated w.e.f.1st of May, 2001.
The petitioner preferred an appeal before the University
and College Tribunal which appeal was allowed on
13.02.2003, setting aside the order dated 19.04.2002 with
a direction to reinstate the petitioner in service. The
Tribunal noted that though the petitioner does not belong
to reserved category, the petitioner is working since
1996 and the respondent college has been unable to get a
reserved category candidate and as such, the respondent
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management cannot consider the appointment of the
petitioner as a new appointment. The Tribunal further
held that as such the post could not have been abolished
or work load reduced, unless requirement of the statute
439 (C) was fulfilled. The Tribunal noted that it was
nobody’s case, that there had been compliance. This
order was accepted by all parties to the order including
the management, the university and the State Government.
19. Do the circulars of the university and the
government resolutions create a right in the petitioner
and
or does the petitioner have a legitimate expectation
that his case for regularisation be considered on his
completing six years of continuous service after being
selected by a duly constituted selection committee and
the post being advertised showing the post as reserved in
2001 and with the interchangeability clause in 2003 in
the absence of availibity of a backward class candidate.
The circulars and the G.R.’s require that certain
procedural formalities had to be undergone by the
institution, the management and the university for the
government to consider the case for dereservation. The
petitioner therefore, would have a legitimate expectation
that these authorities would act in the manner provided
and that correspondingly the State Government would act
fairly in terms of the resolution as interpreted by the
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Court. That would require the Government to exercise its
discretion to dereserve the post if there had been
substantial compliance with its G.R. for dereservation.
The doctrine of legitimate expectation is founded on the
sanction of law or custom or an established procedure
followed in regular and natural sequence. The doctrine
to be applicable require regularity, predictability and
certainty. It has developed in the context of the
principles of natural justice and is now considered a
part of the principles of natural justice. Southern
Petro Chemicals Industries Co. Ltd., vs. Electricity
Impetus & ET
10, (2007) 5 SCC 447. It has both
procedural and substantive aspects. The substantive
legitimate expectation, that is, expectation of a
favourable decision of one kind or another has now been
accepted as a part of law. “This doctrine has developed
as a principle of reasonableness,fairness and is used
against the Government authorities or other statutory
bodies on whose representation or premises, parties or
citizens act and some detrimental consequences ensue
because of refusal of authorities to fulfil their
promises or honour their commitments. In public law, in
certain statutes relief to the parties aggrieved by
action or promises of public authorities can be granted
on the doctrine of legitimate expectation…..” See Hira
Tikno vs. Union Teritory of Chandigad (2004) 6 SCC 765.
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When a person’s legitimate expectation is not fulfilled
by taking a particular decision, then the decision maker
should justify the demand of such expectation by showing
some overriding public interest. See MRF Ltd. vs. CIT
(2006) 8 SCC 702; Bannari Amman Sugar Ltd., vs. CTO
(2005) 1 SCC 625.
20. The circulars of the University and the
Resolutions of the State Government permit dereservation.
The post was available for de-reservation in the year
2001. The respondent nos. 1 and 2 had substantially
complied with all the requirement and applied in the year
2003. Once there was substantial compliance merely
because interchangeability had not been provided in 2001
would not result in denying to the petitioner right of
consideration of his case for being treated as regularly
appointed in the year 2001. In the 6th year of
advertisement, no reserved category candidate applied
even though the post was advertised as reserved for S.C..
The respondent management advertised interchangebility in
the year 2003, whereas they ought to have advertised the
same in the year 2001 itself. In 2003 also no reserved
category candidate applied. Once there was the provision
for de-reservation, a candidate duly selected after
complying with the procedure had a legitimate expectation
that his case would be fairly and reasonably considered
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by the university and the government in terms of the
circulars and G.R. respectively. Even if we consider
that the clause pertaining to interchangeability had not
been notified in 2001, the same was notified at least in
the year 2003. The petitioner, therefore, had a
legitimate expectation based on the government G.R. and
the circulars of the University that the post he held
would be put up for dereservation and his case would be
considered accordingly. This legitimate expectation of
the petitioner, cannot be frustrated either by failure of
the institution or university to forward the proposal in
time to the
State or for the State to consider the
proposal. In our opinion, once this court had judicially
recognised the principle of substantial compliance the
case of the petitioner had to be considered as of the
year 2001. The respondent no.5 had applied in the year
2004 though the clause of interchangeability had also
been advertised in the year 2003. The action of the
respondent no.4 in rejecting the case for de-reservation
and granting approval to the appointment of the
respondent no.5 has to be set aside considering the
legitimate expectation of the petitioner.
21. Considering the facts on record, in our opinion,
this is not a fit case to refer the matter back to the
respondent no.4, considering our earlier findings, as in
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the meantime the post has been abolished and the services
of the petitioner were terminated. The petitioner
however, even considering that his case could be
considered in 2001 or even in 2003, would be entitled to
a declaration of being a confirmed employee and
consequently entitled to be absorbed in any other
institution. The petitioner consequenlty would be
entitle to be treated as regularly appointed in the year
1996-97 and confirmed in the year 1998-99. It would,
therefore, be appropriate that the respondent no.4 is
directed to pass an order dereserving the post held by
the
petitioner as of 2001 and for the respondent no. 3
to grant approval to the appointment of the petitioner
accordingly. The respondent no.4 to act within two
months of this order. The respondent no.3, thereafter,
to grant approval within one month thereafter and
communicate the same.
22. Though the petitioner’s service has been
terminated on the ground of the post having been
abolished, considering that the petitioner is entitled to
be considered for regularisation in the year 1996, he has
to be treated as permanent teacher as of 1998-99 and
consequently, the petitioner would be entitled to all the
benefits which a teacher declared surplus is entitled to
including protection of pay as also absorption in another
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post.
21. The petitioner has also prayed that considering
that he was entitled to back wages from June 2002 to
February, 2003 based on the order of the Tribunal. In
our opinion considering that the petitioner is to be
treated as permanent from the academic year 1998-99 the
back wages as ordered by the Tribunal to be forthwith
paid to the petitioner.
23. In the light of the above, the petition is
allowed. Rule
igis made absolute in terms of the prayer
clause (a), (b) and (c) of the petition. In the
circumstances of the case all parties to bear their own
costs.
(F.I. REBELLO, J.)
(R.S. MOHITE,J.)
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