{"id":123919,"date":"2008-11-19T00:00:00","date_gmt":"2008-11-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/harshendu-vinayak-madge-vs-chembur-trombay-education-on-19-november-2008"},"modified":"2015-06-04T02:18:19","modified_gmt":"2015-06-03T20:48:19","slug":"harshendu-vinayak-madge-vs-chembur-trombay-education-on-19-november-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/harshendu-vinayak-madge-vs-chembur-trombay-education-on-19-november-2008","title":{"rendered":"Harshendu Vinayak Madge vs Chembur Trombay Education … on 19 November, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
Harshendu Vinayak Madge vs Chembur Trombay Education … on 19 November, 2008<\/div>\n
Bench: F.I. Rebello, R.S. Mohite<\/div>\n
                                -: 1 :-\n\n\n\nSPB\n\n                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                   ORDINARY ORIGINAL CIVIL JURISDICTION\n\n\n\n\n                                                                         \n                     WRIT PETITION NO.    2332      OF     2007\n\n\n\n\n                                             \n      Harshendu Vinayak Madge, age 45 yrs.             \u00a6\n      R\/at Nav Durga Complex, C-101,                   \u00a6\n      Sector XIX A, Nerul (East),                      \u00a6\n\n\n\n\n                                            \n      Navi Mumbai 400 076                              \u00a6     ..     Petitioner.\n\n\n                         Vs.\n\n\n\n\n                                  \n      1. Chembur Trombay Education Society,     \u00a6\n         through its Secretary, office at       \u00a6\n\n         Mumbai 400 071.\n                       \n         N.G.Acharya College, Chembur,          \u00a6\n                                                \u00a6\n                                                \u00a6\n      2.    N.G. Acharya & D.K.Mrathe College   \u00a6\n                      \n            of Arts, Science & Commerce, through\u00a6\n            its Principal.                      \u00a6\n                                                \u00a6\n      3.    The University of Mumbai, through   \u00a6\n            its Registrar, Fort Mumbai-32.      \u00a6\n                                                \u00a6\n        \n\n\n      4.    State of Maharashtra, through its   \u00a6\n            Department of Higher & Technical    \u00a6\n     \n\n\n\n            Education, Mantralaya, Annexe       \u00a6\n            Mumbai-32.                          \u00a6\n                                                \u00a6\n      5.    Mr. Chandrakant Susane,             \u00a6\n            R\/at Lok Manya Nagar, Pada No.4,    \u00a6\n\n\n\n\n\n            Near Santoshi Mata Temple, Thane-606\u00a6            .. Respondents.\n                                  ---\n\n      Mr. Mihir Desai for the Petitioner.\n\n      Mr.    Abhay L. Patil for the Respondents 1 and 2.\n\n\n\n\n\n      Mr.R.A.Rodriques for the Respondent No.3.\n\n      Mr. S.S. Joshi, AGP for the Respondent No.4-State.\n\n      Mr. A.Abdi i\/by M\/s. Abdi & Co. for the Respnodent No.5.\n\n\n\n\n                                                 ::: Downloaded on - 09\/06\/2013 14:04:37 :::\n                                   -: 2 :-\n\n\n\n                                      ---\n\n                           CORAM :    F.I.REBELLO & R.S. MOHITE, JJ.\n<\/pre>\n
                           DATED :    19th NOVEMBER, 2008.\n\n\n\n\n                                                                            \n    JUDGEMENT :-\n\n\n\n\n                                                    \n    1.        Rule. Heard forthwith.\n\n\n\n\n                                                   \n    2.        The    petitioner was employed with respondent no.2\n\n    which    is an institution run by the respondent no.1, as a\n\n    Lecturer    in    Philosophy      in     Foundation           Course.            The\n\n\n\n\n                                     \n    petitioner      on    initial selection joined respondent                      no.2\n\n    college\n\n    petitioner\n               on\n\n                    was\n                         \n                     27.6.1994.\n\n                           not   by\n                                      Initial\n\n                                      a    duly\n                                                     appointment\n\n                                                  constituted\n                                                                            of\n\n                                                                          selection\n                                                                                     the\n                        \n    committee.       The    petitioner      since        1996      on     selection\n\n    continued    to      serve in the said post.            As the        post       was\n\n<\/pre>\n
    reserved, the petitioner was selected and appointed every<\/p>\n
    year    after    due    advertisement, continuously,                  till       his<\/p>\n
    termination      on    31.07.2003 on account of being                   rendered<\/p>\n
    surplus.    The post was reserved for S.C.candidate.\n<\/p>\n
    3.        The    respondent nos.        1 and 2 to fill in the post<\/p>\n
    which    was reserved for SC candidate, advertised the same<\/p>\n
    on   7th of June, 1996, 30th of May, 1997, 02nd September,<\/p>\n
    1998,    28th    May, 1999, 24th March, 2000 as also on                        22nd<\/p>\n
    November,    2001.      There was no advertisement in the                      year<\/p>\n
    2002-2003 as apparently the post was declared surplus and<\/p>\n
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\n                                      -: 3 :-<\/span><\/p>\n
    the    services      of the petitioner were              terminated            w.e.f.\n<\/p>\n
    1st    of    May, 2002.       The post was again re-advertised                        on<\/p>\n
    31.07.2003,        wherein      it   was    shown       as     interchangeable<\/p>\n
    between      SC\/ST.       No SC\/ST candidates applied.                   The      post<\/p>\n
    was again advertised as interchangeable on 16.06.2004 for<\/p>\n
    the     academic         year    2004-2005.           Pursuant           to       that<\/p>\n
    advertisement        a    candidate        belonging         to     S.C.category<\/p>\n
    applied.       The      respondent no.5, as a reserved                   candidate<\/p>\n
    and eligible was selected.\n<\/p>\n
    4.          The    petitioner in the course of his                    employment,<\/p>\n
    on<\/p>\n
          19th April, 2002 was issued a letter, terminating his<\/p>\n
    services      from 1st of May, 2002.             The petitioner, filed a<\/p>\n
    writ    petition, being writ petition no.                    1935\/2002 before<\/p>\n
    this    court      for    various reliefs.          The      respondent           no.1<\/p>\n
    filed an affidavit, stating that the petitioner could not<\/p>\n
    be    continued in the academic year 2002-2003 because                              the<\/p>\n
    Joint    Director        of   Education      had      not      given       a    ”     no<\/p>\n
    objection”        for    filling     up    the      post.         In     the      same<\/p>\n
    petition,      affidavit-in-reply was filed by the University<\/p>\n
    stating that unless papers, concerning de-reservation are<\/p>\n
    submitted to them, they were not in a position to proceed<\/p>\n
    ahead    with      the    dereservation.          In the         light       of     the<\/p>\n
    affidavit,        the    petitioner       withdrew         the      petition          to<\/p>\n
    approach      the    college      tribunal       against         the     order        of<\/p>\n
    termination.        The petitioner accordingly, filed an appeal<\/p>\n
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    being    appeal      no.      99\/2002.      The said appeal came to                   be<\/p>\n
    decided    by      the judgment dated 13th of                February,          2003.\n<\/p>\n
    The    Tribunal ordered that the termination of services of<\/p>\n
    the    petitioner        be    set    aside and       the      petitioner           was<\/p>\n
    directed      to    be    taken back.        The State         Government           was<\/p>\n
    directed      to    pay    the      wages    of    the     petitioner.              The<\/p>\n
    petitioner, accordingly, was taken back in service.\n<\/p>\n
    5.        A proposal for dereservation dated 20th of March,<\/p>\n
    2003    was submitted to the university and the                         petitioner<\/p>\n
    was    accordingly informed by letter dated 21st of                            April,<\/p>\n
    2003.      Subsequent
\n                         ig        to    the     proposal          forwarded            for<\/p>\n
    de-reservation, two further advertisements were issued on<\/p>\n
    31st of July, 2003 and 13th June, 2004 for appointment to<\/p>\n
    the post, showing the post as interchangeable.\n<\/p>\n
    6.        According to the petitioner, once the college had<\/p>\n
    submitted      the proposal for de-reservation, there was                             no<\/p>\n
    reason    for      the college to advertise the said post                         once<\/p>\n
    again.    In terms of the G.R.              of 5th December, 1994, once<\/p>\n
    the    post    is advertised on six occasions and a                        reserved<\/p>\n
    category      candidate        was    not available,           the      said      post<\/p>\n
    becomes    ripe      for      dereservation.            As     the      petitioner<\/p>\n
    apprehended        that    his      service       would      be       terminated,<\/p>\n
    petitioner      filed writ petition no.               2248 of 2005             before<\/p>\n
    this    court.      An order came to be passed, restraining the<\/p>\n
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\n                                  -: 5 :-<\/span><\/p>\n
    respondents       from   terminating      the     services          of       the<\/p>\n
    petitioner.      The said petition was finally disposed of on<\/p>\n
    15th    December, 2006, directing the University to forward<\/p>\n
    the    proposal for de-reservation to the State Government.\n<\/p>\n
    The    State    Government    in   turn was      to     take      necessary<\/p>\n
    decision.      Petitioner received a communication dated 09th<\/p>\n
    of    October,    2007 from the college, informing                that       the<\/p>\n
    State     Government      had    rejected        the       proposal            of<\/p>\n
    de-reservation      in terms of the communication received by<\/p>\n
    them from the university.          The university was informed by<\/p>\n
    the    State Government of the decision not to deserve                       the<\/p>\n
    post by communication of 14\/24th September, 2007.\n<\/p>\n
    7.        The    petitioner     by this petition challenges                  the<\/p>\n
    said communication whereby his case for dereservation has<\/p>\n
    been rejected with a further prayer that the petitioner’s<\/p>\n
    back    wages    for the period from June 2002             to     February,<\/p>\n
    2003    be   paid, considering the order of the Tribunal                       in<\/p>\n
    the appeal preferred by the petitioner.\n<\/p>\n
    8.        Reply     has been filed on behalf of the respondent<\/p>\n
    no.4    by   Usha   Ravindra     Parab.     The     petition,           it     is<\/p>\n
    averred,     ought to be dismissed, as the condition in                      the<\/p>\n
    circular     on the basis of which dereservation of the post<\/p>\n
    was    sought    had   not been complied with.             The      circular<\/p>\n
    contemplates      interchangeability in the reserved post                      in<\/p>\n
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\n                                    -: 6 :-<\/span><\/p>\n
    the    6th year from amongst other backward classes as                          per<\/p>\n
    the    Government      resolution dated 5th          of      December,1994.\n<\/p>\n
    There    were    three      sanctioned       posts     of     Lecturers           in<\/p>\n
    Philosophy      to    teach foundation course out of which                      the<\/p>\n
    post    under    dispute      was    reserved.         If     the      post       is<\/p>\n
    dereserved      then    the provisions of 50%            reservation            for<\/p>\n
    backward    class      categories laid down by             the      government<\/p>\n
    G.R.    dated 18th October, 1997 cannot be maintained.                          The<\/p>\n
    regularization,        it    is    averred    cannot       be     a    mode       of<\/p>\n
    employment      for    a    candidate from the open             category          in<\/p>\n
    respect    of    the post reserved for backward                 class.          The<\/p>\n
    respondent      no.4
\n                          igafter      considering       the      proposal          for<\/p>\n
    de-reservation        and    other prevailing service               circulars,<\/p>\n
    rejected the proposal for dereservation.\n<\/p>\n
    9.        Reply has also been filed by the Registrar of the<\/p>\n
    University.       As    per    order    of this      court        dated       15th<\/p>\n
    December, 2006, the University sent a letter dated 4th of<\/p>\n
    January    2007,      asking proposal to be sent to                 the     State<\/p>\n
    Government       for    dereservation.          The      University             had<\/p>\n
    forwarded    the      said proposal by the letter dated 6th                       of<\/p>\n
    June,    2006.       The university received a reply                  from      the<\/p>\n
    State     Government        vide    their     letter       dated       24th       of<\/p>\n
    September,      2007 that the proposal for dereservation                        had<\/p>\n
    been    rejected on the ground that the respondent no.5 had<\/p>\n
    been    selected on that post.          The college had             advertised<\/p>\n
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    the    post    from    1997    to 2001 for     the      scheduled          caste<\/p>\n
    category.      However, no candidate of the said category was<\/p>\n
    available      for appointment on the said post.                 In the year<\/p>\n
    2002,    the    post was advertised        with     interchangeability<\/p>\n
    clause    according to the G.R.           dated 5thof December, 1994<\/p>\n
    and the University Circular dated 25th of January, 1995.\n<\/p>\n
    10.       In    the reply filed by the respondent nos.                     1 and<\/p>\n
    2,    it is contended that the proposal for                 de-reservation<\/p>\n
    was    submitted by the college in the year 2003.                     The same<\/p>\n
    was    not    responded to by the University of Mumbai.                        The<\/p>\n
    petitioner<\/p>\n
                    had, therefore, approached this court by writ<\/p>\n
    petition no.      2248 \/2005, seeking directions to the State<\/p>\n
    Government      to    sanction the proposal for             dereservation.\n<\/p>\n
    Directions      were    issued      by this court       to     forward         the<\/p>\n
    proposal      to the State Government and then for the                     State<\/p>\n
    Government      to    take    action thereon.         The      College         had<\/p>\n
    issued    necessary        advertisement    from year to            year       for<\/p>\n
    selection      of the reserved candidate.           In response to the<\/p>\n
    advertisement        for    the    year   2003,     reserved          category<\/p>\n
    candidate      came    to be recommended by the duly                appointed<\/p>\n
    selection      committee.         The process of dereservation                 had<\/p>\n
    already      begun.     The    appointment to the           said      post       of<\/p>\n
    regularly      appointed open category candidate should                      also<\/p>\n
    have to be taken into consideration.\n<\/p>\n
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    11.         Respondent        no.     5 Chandrakant Sasane has               filed<\/p>\n
    his    reply.      According to his affidavit, pursuant to                       the<\/p>\n
    advertisement          he    had applied for the said post and                   was<\/p>\n
    interviewed        on September 14, 2004 and was selected.                         As<\/p>\n
    respondent no.5 was the only reserved category candidate,<\/p>\n
    he    ought to have been considered for appointment to                           the<\/p>\n
    said post.\n<\/p>\n
    12.         At    the    outset it may be mentioned that even                      if<\/p>\n
    the    case of the respondent no.5 is considered, no relief<\/p>\n
    can    be    granted        to    him as the post     has      since        become<\/p>\n
    surplus<\/p>\n
                 and the service of the petitioner terminated                          on<\/p>\n
    that    ground.        Apart from that, the petition filed by the<\/p>\n
    respondent before this court that he should be appointed,<\/p>\n
    has    been      disposed off on the ground, that                for      similar<\/p>\n
    reason no relief can be granted.\n<\/p>\n
    13.         The    true      import of the communication of 4th                    of<\/p>\n
    October,      2007 may first be considered.               The case of            the<\/p>\n
    petitioner        was rejected on the ground that advertisement<\/p>\n
    was    given      in    2002       for   interchangeability           and      Shri<\/p>\n
    Chandrakant        Sasane, a qualified candidate was available.\n<\/p>\n
    This    is the only reason given for rejecting the proposal<\/p>\n
    for    de-reservation            of the post.   From the         facts       noted<\/p>\n
    earlier      Shri Chandrakant Sasane, Respondent no.5 did not<\/p>\n
    apply    pursuant to the advertisement of 2002.                      Respondent<\/p>\n
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\n                                      -: 9 :-<\/span><\/p>\n
    no.5    applied      for    the    first     time      pursuant          to       the<\/p>\n
    advertisement         dated      16.06.2004       and      was      interviewed<\/p>\n
    thereafter.          The     rejection      of        the       proposal            of<\/p>\n
    dereservation        of    the    post held by the           petitioner,            is<\/p>\n
    based    on a non-existing fact.            The formation of               opinion<\/p>\n
    in    arriving      at    a conclusion that the            post       cannot        be<\/p>\n
    dereserved      is    consequently        vitiated.        On     this       ground<\/p>\n
    alone,    the communication of 14th\/24th September, 2007 is<\/p>\n
    liable to be set aside.<\/p>\n
\n\n\n\n\n                                       \n    14.       In    our      opinion,    the    matter       requires          further\n\n    consideration\n                         \n                         as    certain other issues will have                    to     be\n\n    considered,        more    so as the petitioner has               been       moving\n                        \n    this    court      apart from the present petition                  by     earlier\n\n    petition,      the    first one being writ petition                   1935\/2002.\n\n    The     relevant      circular      of     the    University            and       the\n      \n\n\n    Government      resolution require that if inspite of the 5th\n   \n\n\n\n    advertisement,        if no reserved candidate is available, in\n\n    the    6th    year,      action    shall be taken to            fill       up     the\n\n\n\n\n\n    reserved      post    by    advertising      interchangeability                 from\n\n    amongst      the    backward      class     candidates,           as     per      the\n\n    university      circular      dated      11th    March,        1987      and      the\n\n\n\n\n\n    subsequent      circular      dated 17th July, 1995.                A    combined\n\n    reading      of the two circulars provide that if in the                          6th\n\n<\/pre>\n
    year, a reserved category candidate is not available then<\/p>\n
    action    for      filling up the said post from open                    category<\/p>\n
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    shall be taken up with the approval of Higher & Technical<\/p>\n
    and    Employment\/ General Administration Department                         after<\/p>\n
    following the procedure for advertisement.                     Once the post<\/p>\n
    is dereserved in terms of the circular the appointment of<\/p>\n
    non-    backward       class    teacher shall be deemed to                  be     on<\/p>\n
    probation      with     retrospective      effect from the              date       of<\/p>\n
    initial       appointment.        If    such     candidate           has       held<\/p>\n
    continuous        appointment for two years in the college                       and<\/p>\n
    in    the    same management then such appointment                    shall        be<\/p>\n
    confirmed      from     the date of completion of two                 years        of<\/p>\n
    continuous        appointment.      This circular, therefore, gives<\/p>\n
    a<\/p>\n
         right in the candidate selected in the 6th year                         after<\/p>\n
    due    publication if a reserved category candidate was not<\/p>\n
    available      to legitimately expect the management to apply<\/p>\n
    for    dereservation of the post and the univeristy and the<\/p>\n
    government to act in terms of their circular and G.R..\n<\/p>\n
    15.         The    post   was continuously advertised                 from       the<\/p>\n
    year    1996-97 to 2000-2001.           The post was not             advertised<\/p>\n
    in    the year 2002 on account of the appeal pending before<\/p>\n
    the    University Tribunal but was again advertised in 2003<\/p>\n
    and    then    once     again    in     2004.      When       the     post       was<\/p>\n
    advertised        in   the   year     2001,    the    interchangeability<\/p>\n
    clause      was not included.         The interchangeability                clause<\/p>\n
    was,    however,       included in the advertisement dated                     31st<\/p>\n
    July 2003.        The petitioner was selected on both occasions<\/p>\n
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    and no backward class candidate was available.                             According<\/p>\n
    to      the        management       they      sent      the        proposal           for<\/p>\n
    dereservation in the year 2003.\n<\/p>\n
    16.          Before     considering        the issue in the context                     of<\/p>\n
    the legal right of the petitioner we may consider some of<\/p>\n
    the     unreported         judgments     of this court             for     a      proper<\/p>\n
    construction          of    the    government      G.R.          and      university<\/p>\n
    circulars          earlier    referred       to.   In writ          petition          no.\n<\/p>\n
    2676     of    2004 in the case of Mrs.Chandana M.                         Rege       vs.<\/p>\n
    The     Principal Ramnarain Ruia College of Arts &                           Science,<\/p>\n
    Mumbai, decided on 11th April, 2005, this court had noted<\/p>\n
    that    in writ petition no.            2675\/2005 in the case of                      Ms.<\/p>\n
    Aditi         Abhyankar,          the      Government              had       approved<\/p>\n
    regularisation                without                 advertisement                     of<\/p>\n
    interchangeability            clause.      In that context this                   court<\/p>\n
    held      that      advertisement       is     not        mandatory          and      the<\/p>\n
    condition can be relaxed.               Reference, therefore, was also<\/p>\n
    made    to     the    judgment       in writ petition              3101      of     2004<\/p>\n
    decided       on    26th     of April, 2005 in the               case      of      Ashok<\/p>\n
    Chandrashekar Rao vs.             University of Mumbai & ors.<\/a>, where<\/p>\n
    this court took the view that in the event there has been<\/p>\n
    substantial         compliance, ordinarily the government                         ought<\/p>\n
    to de-reserve the post in terms of the resolution as long<\/p>\n
    as there are no malafides and that the attempt was not to<\/p>\n
    protect       the      candidates       from       the         open        category.\n<\/p>\n
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    Therefore,       the      test of substantial compliance has                    been<\/p>\n
    judicially recognized whilst considering dereservation of<\/p>\n
    a     reserved      post in terms of government G.R..                  This       was<\/p>\n
    also     reiterated        in the case of Supriya Habbu vs.                     K.V.\n<\/p>\n
    Pendharkar       College of Arts, Science and Commerce in writ<\/p>\n
    petition 2141 of 1998 decided on 2nd of May, 2005.                            It is<\/p>\n
    not    necessary       to refer to the various other                  judgments.\n<\/p>\n
    The    test    of    sufficient compliance by virtue                   of     these<\/p>\n
    judicial      orders,      will    have    to    be    considered             while<\/p>\n
    considering the action of the government in rejecting the<\/p>\n
    application         for    dereservation        in     the      case       of     the<\/p>\n
    petitioner.\n<\/p>\n
    17.       As      noted     in    the     various      judgments,             which<\/p>\n
    considered       the    government      G.R.      that       the      object        of<\/p>\n
    reservation       is affirmative action by the State so as                          to<\/p>\n
    bring socio-economic equality based on the constitutional<\/p>\n
    mandate enshrined in our Constitution.                   At the same time,<\/p>\n
    the    State Government which has provided for                      reservation<\/p>\n
    in    confirmity       with the constitutional mandate also                       has<\/p>\n
    provided      for    de-reservation        in     the      event         reserved<\/p>\n
    category      candidates      are    not     available,         thereby         also<\/p>\n
    accepting      the principle that a teaching post be not left<\/p>\n
    vacant    for     long time nor an incumbent selected                      to     the<\/p>\n
    post     be    allowed      to    languish      in    the      post      by       not<\/p>\n
    regularising        him    inspite of long years of service                     even<\/p>\n
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\n                                    -: 13 :-<\/span><\/p>\n
    though    a    reserved category candidate is              not     available<\/p>\n
    even    after    the post is continuously advertised for                      six<\/p>\n
    years.\n<\/p>\n
    18.       On    the touch stone of this, let us now                  consider<\/p>\n
    the    facts and issues involved in this case.                  Admittedly,<\/p>\n
    right from 1996 till 2003 and before that since 1994, the<\/p>\n
    petitioner      has    been    continuously working on             the      said<\/p>\n
    post.     The    appointment being against reserved post                      was<\/p>\n
    year    to    year    after following due       procedure          including<\/p>\n
    advertisement.         In   the year 2001 for the academic                  year<\/p>\n
    2001-02 it was necessary for the respondent nos.                       1 and 2<\/p>\n
    to    have    advertised      the post by showing the             clause        of<\/p>\n
    interchangeability.         This exercise was not in the hand of<\/p>\n
    the petitioner but required compliance by respondent nos.\n<\/p>\n
    1    and 2.    The respondent nos.        1 and 2 failed to              comply<\/p>\n
    with    the said requirement.        The petitioner’s services in<\/p>\n
    between      came    to be terminated w.e.f.1st of              May,      2001.\n<\/p>\n
    The    petitioner preferred an appeal before the University<\/p>\n
    and     College      Tribunal    which     appeal      was      allowed         on<\/p>\n
    13.02.2003, setting aside the order dated 19.04.2002 with<\/p>\n
    a    direction to reinstate the petitioner in service.                        The<\/p>\n
    Tribunal noted that though the petitioner does not belong<\/p>\n
    to    reserved      category, the petitioner is            working        since<\/p>\n
    1996    and the respondent college has been unable to get a<\/p>\n
    reserved      category candidate and as such, the                 respondent<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:04:37 :::<\/span>
\n                                    -: 14 :-<\/span><\/p>\n
    management      cannot      consider     the      appointment            of       the<\/p>\n
    petitioner      as    a new appointment.          The Tribunal             further<\/p>\n
    held    that as such the post could not have been abolished<\/p>\n
    or    work load reduced, unless requirement of the                         statute<\/p>\n
    439    (C)    was fulfilled.        The Tribunal noted that it                    was<\/p>\n
    nobody’s      case,    that    there had been          compliance.              This<\/p>\n
    order    was accepted by all parties to the order including<\/p>\n
    the management, the university and the State Government.\n<\/p>\n
    19.       Do    the    circulars      of   the      university           and      the<\/p>\n
    government      resolutions create a right in the                     petitioner<\/p>\n
    and<\/p>\n
           or does the petitioner have a legitimate expectation<\/p>\n
    that    his    case for regularisation be considered                       on     his<\/p>\n
    completing      six    years of continuous service after                      being<\/p>\n
    selected      by   a duly constituted selection committee                         and<\/p>\n
    the post being advertised showing the post as reserved in<\/p>\n
    2001    and    with the interchangeability clause in 2003                           in<\/p>\n
    the    absence of availibity of a backward class candidate.\n<\/p>\n
    The    circulars      and    the     G.R.’s     require         that       certain<\/p>\n
    procedural      formalities        had   to    be     undergone          by       the<\/p>\n
    institution,       the   management and the university for                        the<\/p>\n
    government      to consider the case for dereservation.                           The<\/p>\n
    petitioner therefore, would have a legitimate expectation<\/p>\n
    that    these authorities would act in the manner                        provided<\/p>\n
    and    that correspondingly the State Government would                            act<\/p>\n
    fairly    in terms of the resolution as interpreted by                            the<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:04:37 :::<\/span>
\n                                         -: 15 :-<\/span><\/p>\n
    Court.      That would require the Government to exercise its<\/p>\n
    discretion           to    dereserve      the   post if         there       had        been<\/p>\n
    substantial           compliance with its G.R.              for dereservation.\n<\/p>\n
    The       doctrine of legitimate expectation is founded on the<\/p>\n
    sanction         of    law or custom or an            established           procedure<\/p>\n
    followed         in regular and natural sequence.                     The     doctrine<\/p>\n
    to    be applicable require regularity, predictability                                  and<\/p>\n
    certainty.            It    has    developed       in the       context         of      the<\/p>\n
    principles           of    natural justice and is now                 considered           a<\/p>\n
    part      of     the      principles of natural            justice.           Southern<\/p>\n
    Petro      Chemicals            Industries Co.     Ltd., vs.               Electricity<\/p>\n
    Impetus        &    ET<\/p>\n
                               10,    (2007)    5   SCC      447.         It    has        both<\/p>\n
    procedural          and     substantive      aspects.           The      substantive<\/p>\n
    legitimate          expectation,         that   is,        expectation            of       a<\/p>\n
    favourable          decision of one kind or another has now                          been<\/p>\n
    accepted        as a part of law.           “This doctrine has developed<\/p>\n
    as    a    principle of reasonableness,fairness and                           is     used<\/p>\n
    against        the     Government authorities or                other       statutory<\/p>\n
    bodies      on      whose representation or premises, parties                            or<\/p>\n
    citizens        act       and    some detrimental          consequences            ensue<\/p>\n
    because        of     refusal      of     authorities         to     fulfil        their<\/p>\n
    promises        or honour their commitments.                  In public law, in<\/p>\n
    certain        statutes         relief    to the    parties          aggrieved           by<\/p>\n
    action      or promises of public authorities can be                            granted<\/p>\n
    on    the doctrine of legitimate expectation…..” See Hira<\/p>\n
    Tikno      vs.      Union Teritory of Chandigad (2004) 6 SCC 765.\n<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:04:37 :::<\/span>
\n                                       -: 16 :-<\/span><\/p>\n
    When    a person’s legitimate expectation is not                      fulfilled<\/p>\n
    by     taking a particular decision, then the decision maker<\/p>\n
    should    justify the demand of such expectation by showing<\/p>\n
    some    overriding public interest.             See MRF Ltd.            vs.      CIT<\/p>\n
    (2006)    8     SCC 702;     Bannari Amman Sugar Ltd.,                vs.        CTO<\/p>\n
    (2005) 1 SCC 625.\n<\/p>\n
    20.       The       circulars      of   the     University            and        the<\/p>\n
    Resolutions of the State Government permit dereservation.\n<\/p>\n
    The    post    was available for de-reservation in                    the      year<\/p>\n
    2001.     The    respondent nos.         1 and 2      had      substantially<\/p>\n
    complied with all the requirement and applied in the year<\/p>\n
    2003.     Once      there    was    substantial       compliance            merely<\/p>\n
    because    interchangeability had not been provided in 2001<\/p>\n
    would    not    result in denying to the petitioner right                          of<\/p>\n
    consideration        of his case for being treated as regularly<\/p>\n
    appointed      in    the    year    2001.      In    the      6th     year         of<\/p>\n
    advertisement,        no    reserved category         candidate           applied<\/p>\n
    even though the post was advertised as reserved for S.C..\n<\/p>\n
    The respondent management advertised interchangebility in<\/p>\n
    the    year 2003, whereas they ought to have advertised the<\/p>\n
    same    in the year 2001 itself.             In 2003 also no            reserved<\/p>\n
    category candidate applied.             Once there was the provision<\/p>\n
    for    de-reservation,        a    candidate     duly       selected         after<\/p>\n
    complying with the procedure had a legitimate expectation<\/p>\n
    that    his case would be fairly and reasonably                      considered<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:04:37 :::<\/span>
\n                                    -: 17 :-<\/span><\/p>\n
    by    the    university      and the government in terms                of     the<\/p>\n
    circulars      and    G.R.    respectively.      Even if we           consider<\/p>\n
    that    the clause pertaining to interchangeability had not<\/p>\n
    been    notified in 2001, the same was notified at least in<\/p>\n
    the     year    2003.     The     petitioner,       therefore,            had      a<\/p>\n
    legitimate      expectation based on the government G.R.                       and<\/p>\n
    the    circulars      of the University that the post                 he     held<\/p>\n
    would    be put up for dereservation and his case would                          be<\/p>\n
    considered      accordingly.      This legitimate expectation                    of<\/p>\n
    the petitioner, cannot be frustrated either by failure of<\/p>\n
    the    institution or university to forward the proposal in<\/p>\n
    time    to    the<\/p>\n
                         State    or for the State        to     consider          the<\/p>\n
    proposal.      In our opinion, once this court had judicially<\/p>\n
    recognised      the    principle of substantial compliance                     the<\/p>\n
    case    of    the petitioner had to be considered as                    of     the<\/p>\n
    year    2001.    The respondent no.5 had applied in the                      year<\/p>\n
    2004    though      the clause of interchangeability                had      also<\/p>\n
    been    advertised      in    the year 2003.       The action           of     the<\/p>\n
    respondent      no.4 in rejecting the case for de-reservation<\/p>\n
    and     granting      approval    to   the     appointment            of       the<\/p>\n
    respondent      no.5    has    to be set   aside        considering            the<\/p>\n
    legitimate expectation of the petitioner.\n<\/p>\n
    21.         Considering      the facts on record, in our opinion,<\/p>\n
    this    is    not a fit case to refer the matter back to                       the<\/p>\n
    respondent      no.4, considering our earlier findings, as in<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:04:37 :::<\/span>
\n                                    -: 18 :-<\/span><\/p>\n
    the meantime the post has been abolished and the services<\/p>\n
    of    the    petitioner      were     terminated.            The      petitioner<\/p>\n
    however,       even    considering        that      his      case      could        be<\/p>\n
    considered      in 2001 or even in 2003, would be entitled to<\/p>\n
    a     declaration      of    being    a    confirmed           employee           and<\/p>\n
    consequently       entitled     to    be     absorbed          in     any     other<\/p>\n
    institution.          The    petitioner         consequenlty           would        be<\/p>\n
    entitle      to be treated as regularly appointed in the year<\/p>\n
    1996-97      and   confirmed in the year 1998-99.                     It     would,<\/p>\n
    therefore,      be    appropriate that the respondent                    no.4       is<\/p>\n
    directed      to   pass an order dereserving the post held                          by<\/p>\n
    the<\/p>\n
           petitioner as of 2001 and for the respondent no.                               3<\/p>\n
    to    grant    approval to the appointment of the                     petitioner<\/p>\n
    accordingly.         The    respondent      no.4 to        act      within        two<\/p>\n
    months      of this order.      The respondent no.3,                thereafter,<\/p>\n
    to    grant    approval      within       one    month       thereafter           and<\/p>\n
    communicate the same.\n<\/p>\n
    22.         Though     the     petitioner’s           service         has       been<\/p>\n
    terminated      on    the    ground    of       the    post       having        been<\/p>\n
    abolished, considering that the petitioner is entitled to<\/p>\n
    be considered for regularisation in the year 1996, he has<\/p>\n
    to    be    treated    as permanent teacher as of                 1998-99         and<\/p>\n
    consequently, the petitioner would be entitled to all the<\/p>\n
    benefits      which a teacher declared surplus is entitled to<\/p>\n
    including protection of pay as also absorption in another<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:04:37 :::<\/span>
\n                                     -: 19 :-<\/span><\/p>\n
    post.\n<\/p>\n
    21.       The    petitioner has also prayed that                  considering<\/p>\n
    that    he    was    entitled to back wages from June                  2002       to<\/p>\n
    February,      2003    based on the order of the Tribunal.                        In<\/p>\n
    our    opinion      considering       that the petitioner is               to     be<\/p>\n
    treated      as permanent from the academic year 1998-99                        the<\/p>\n
    back    wages    as ordered by the Tribunal to                be     forthwith<\/p>\n
    paid to the petitioner.<\/p>\n
\n\n\n\n\n                                         \n    23.       In    the    light     of    the above,      the      petition          is\n\n    allowed.       Rule\n                         igis made absolute in terms of the                    prayer\n\n    clause    (a),      (b)   and    (c)    of   the    petition.            In     the\n                       \n    circumstances        of the case all parties to bear their                      own\n\n    costs.\n\n                                                 (F.I. REBELLO, J.)\n      \n   \n\n\n\n                                                 (R.S. MOHITE,J.)\n\n\n\n\n\n\n                                                   ::: Downloaded on - 09\/06\/2013 14:04:37 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Harshendu Vinayak Madge vs Chembur Trombay Education … on 19 November, 2008 Bench: F.I. Rebello, R.S. Mohite -: 1 :- 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. \u00a6 R\/at Nav Durga Complex, C-101, \u00a6 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-123919","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nHarshendu Vinayak Madge vs Chembur Trombay Education ... on 19 November, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/harshendu-vinayak-madge-vs-chembur-trombay-education-on-19-november-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Harshendu Vinayak Madge vs Chembur Trombay Education ... on 19 November, 2008 - 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