Full Judgment Text
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PETITIONER:
AJYURVIDYA PRASARAK MANDAL AND ANR.
Vs.
RESPONDENT:
MRS.GEETA BHASKAR PENDSE AND ORS.
DATE OF JUDGMENT12/04/1991
BENCH:
SAWANT, P.B.
BENCH:
SAWANT, P.B.
FATHIMA BEEVI, M. (J)
CITATION:
1991 SCR (2) 282 1991 SCC (3) 246
JT 1991 (2) 209 1991 SCALE (1)706
ACT:
Bombay University Act, 1974--Sections 11,77--Government
resolutions and university directions on
reservation/dereservation--Reservation in appointment of
college teachers in favour of backward classes--
Dereservation thereof--Procedure to be followed--
Appointments without following the procedure--Validity of
filling up of the post--Directions issued.
HEADNOTE:
For the academic year 1983-84, there was a vacancy for
the post of Lecturer in Sanskrit, in the College managed by
the appellant-Trust. The said post was reserved for
candidate from backward classes. The first Respondent, not
belonging to any backward class, applied for the post, even
before the appellant-Trust issued an advertisement. An
advertisement was issued later without mentioning the
academic year for which the appointment was to be made,
though admittedly it was for the academic year 1983-84. The
advertisement specifically stated that the post was reserved
for a backward class candidate and if no such candidate was
available, a candidate from the non-backward classes may be
appointed for one year. Within a month, the advertisement
was repeated and yet no application was received from any
candidate from backward classes. Hence the appellant-trust
appointed the First Respondent, who had earlier applied,
from 19.3.84 till 30.4.1984.
Again, an advertisement was issued in 1984 for the
academic year 1984-85. And there was no response from any
candidate belonging to backward classes. The First
Respondent was interviewed and appointed for one year, till
19.4.1985.
For the academic year 1985-86, no advertisement was
issued. The First Respondent was again appointment to the
said post from July 10, 1985 to April 30, 1986. Thereafter
her services were terminated after issue of notice.
No appointment was made to the said post for the
academic year 1986-87. However, on 1.5.1987, an
advertisement was issued inviting applications for the said
post from candidates belonging to all classes,
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dereserving the post. Respondents 1 and 5 and another
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candidate, all belonging to non-backward classes applied.
The 5th Respondent was selected and appointed to the said
post.
Thereafter, in respect of non-payment of salary for
certain period and for setting aside her termination order,
the First Respondent approached the College Tribunal. The
Tribunal allowed her claim for salary for the relevant
periods, but dismissed her claim for reinstatement, holding
that her appointment was purely temporary and her claim that
she should be deemed to have been confirmed because she had
served for two academic years was not established in the
circumstances of the case.
Against the Tribunal’s decision, the First Respondent
approached the High Court by way of a Writ Petition. The
High Court allowed the Writ Petition holding that
notwithstanding the break in her actual appointment, she was
continuously in employment from March 19, 1984 to April 30,
1986, and hence entitled to the benefit of the resolutions
of the State Government and the University directions which,
according to the High Court, laid down that an employee who
was appointed for two consecutive academic years must be
deemed to have been on probation right from the time of the
first appointment and, therefore, she should be confirmed in
the post. The benefit of full back wages, seniority etc. was
also ordered.
Aggrieved by the Judgment of the High Court, the
appellants preferred the present appeal, by special leave.
Allowing the appeal, this Court,
HELD: 1. The appellant-Trust had violated the
directions of the Government as well as of the University in
the appointments in question as a result of which neither
the appointment of the 1st respondent nor that of the 5th
respondent can be said to have been validly made. Both the
appointments were made without following the Government
Resolutions and the University directions in the matter of
reservation of seats for backward classes which are binding
on the college. Unfortunately, these aspects of the matter
which are evident from the record were lost sight of both by
the Tribunal and the High Court. [287G-H;288A]
2.1. Admittedly, the selection of the 5th respondent
was made by a committee where neither the nominee of the
Vice-Chancellor nor the expert nominated by the University
nor the nominee of the Director of
284
Education (Higher Education), i.e., the Director of
Ayurveda, was present. The selection so made was, therefore,
not valid. [289F]
2.2 There is nothing on record to show that when the
appellant Trust forwarded its report on appointment of the
5th respondent, it apprised the University of the absence of
the expert at the time of his selection. The University has
not reserved the power to relax the rule and permit
selection without the presence of the expert. There is
nothing in the University’s letter to show why the
University had condoned the absence of the expert. The
approval given by the University being in ignorance of the
true state of affairs and in breach of the rule, is legally
ineffective and cannot validate the appointment. [289H,290A-
B]
3. Admittedly, the post was reserved for the academic
year 1983-84. The Trust had not given three advertisements
within six months for any of the academic years 1983-84,
1984-85 and 1985-86. On the other hand, for the academic
year 1983-84, it issued only two advertisements. It is not
known as to why even these two advertisements were not
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issued at the beginning of the said academic year. As
regards the second academic year 1984-85, it issued only one
advertisement, and no advertisement was issued for the
academic year 1985-86. The initial appointment of the Ist
respondent for the academic year 1983-84 and her
continuation for the subsequent academic years, viz., 1984-
85 and 1985-86 was thus in breach of the Government
resolutions and the University direction and, therefore,
illegal. Similarly, since the appointment of the 5th
respondent was made without following the procedure prior to
dereservation, viz., three advertisements repeated every
year for all the three academic years for which the post was
to be reserved, his appointment to the post, as if the post
stood legally dereserved, was also illegal since the post
could not have been dereserved to make it available for a
non-backward class candidate.[294B-E]
4. Even assuming that her initial appointment and
subsequent continuation of service was valid, the First
Respondent would not be entitled to the benefit of the
University direction of March 11, 1987 because her
entitlement to the vacation salary does not extend her
period of employment up to the end of the vacation. That is
a perquisite which is conferred on every teacher who has
served during the academic year. It has no connection with
the continuation of the employment since even those teachers
whose services are validly terminated before the beginning
of the vacation period are given the benefit of the salary
of the vacation period. [295E-F]
285
5. The appellant-Trust shall advertise the post three
times sufficiently in advance and in any case within six
months from the close of the present academic year, viz.,
1990-1991 as a post reserved for the backward class
candidate, and if no application is received from a suitable
backward class candidate, the post will be deemed to have
been dereserved. The Trust will then proceed to fill in the
same by a candidate belonging to non-backward classes. This
fact may be made clear in all the three advertisements. The
5th respondent will be entitled to apply for the post
notwithstanding the fact that he has become overaged. If he
is selected on the basis of his other qualifications, the
Selection Committee shall relax in his favour the
condition with regard to the maximum age. If he is appointed
to the post, his appointment will be a fresh one and his
past service will not count for the probation period. The
Trust shall constitute a proper Selection Committee
according to the rules. [296D-F]
6. To overcome the hardship to the students, the 5th
respondent may be permitted to teach as a purely temporary
teacher till the process is completed for the academic year
1991-92. [297C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No.1779 of
1991.
From the Judgment and Order dated 10-4-1990 of the
Bombay High Court in W.P.No.1944 of 1987.
M.C.Bhandare, CPU Nair, Ms.Kamini Lao and M.N.Shroff
for the Appellants.
V.N.Ganpule, S.K.Agnihotri, A.S.Bhasme and Ms.H.Wahi
for the Respondents.
The Judgment of the Court was delivered by
Sawant,J. Leave granted.
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2. Appellant No.1 is a Trust which runs and manages an
Ayurveda College in Bombay. Appellant No.2, is the Principal
of the College. There was a vacancy in the post of a
lecturer in Sanskrit for the academic year 1983-84 which was
admittedly reserved for a candidate from the backward
classes. The Ist respondent had applied for the said post on
19th September, 1983 even before the appellant-Trust had
invited applications by advertising the vacancy as it was
required
286
to do. Subsequently, on October 13, 1983, the appellant-
Trust issued an advertisement inviting applications for the
post without mentioning for which academic year the
appointment was to be made. The parties before us agree that
it was for the academic year 1983-84. In the advertisement,
it was specifically mentioned that the post was reserved for
a backward class candidate and if no suitable candidate from
the backward classes was available, a candidate from the
non-backward classes may be appointed for an year. It
appears that within a month thereafter on the 12th November,
1983, a second advertisement was issued repeating the
earlier advertisement. No application was received from any
candidate from the backward classes in response even to this
advertisement, and hence, the Ist respondent who had already
applied as stated earlier, was appointed to the said post
for the period from March 19, 1984 till April 30, 1984. The
total period of service put in by the Ist respondent for the
said academic year was 41 days. On April 28, 1984, the
appellant-Trust issued an advertisement for the same post
repeating the contents of the earlier advertisement, but for
the academic year 1984-85. The applications were invited by
30th April, 1984. No candidate from the backward classes
applied in response to the said advertisement. The interview
was held on June 30, 1984 and the Ist respondent was
appointed for the period from 21st August, 1984 to 19th
April, 1985.
3. In the third academic year 1985-86, admittedly no
advertisement was issued and no applications from the
candidates including candidates from the backward classes
were invited. However, the Ist respondent was appointed to
the post from July 10, 1985 to April 30, 1986. Thereafter
the Ist respondent’s services were terminated w.e.f. 30th
April, 1986 by a notice dated March 12, 1986.
4. No appointment was made to the said post for the
academic year 1986-87. On May 1,1987, the Trust issued
advertisement inviting applications to the said post from
candidates belonging to all classes since, according to the
Trust, the post was dereserved during the said period. Three
candidates belonging to the non-backward classes including
the Ist respondent and the 5th respondent applied for the
post and the 5th respondent was selected and appointed to
the same.
5. It appears that the Ist respondent was not paid
salary for the summer vacations following the academic years
1984-85 and 1985-86. She was also not paid salary from
November 1985 to April 1986. She approached the College
Tribunal praying for salary for (i) November 1985 to April
1986, and (ii) for the summer vacations following
287
academic years 1984-85 and 1985-86, i.e., for the months of
May and part of June 1985, and May and part of June 1986,
and (iii) for setting aside her termination of service and
for reinstatement. The Tribunal allowed her claim for the
salary for the relevant periods, but dismissed her claim for
reinstatement holding that her appointment was purely
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temporary and her claim that she should be deemed to have
been confirmed because she had served for two academic years
was not established in the circumstances of the case. This
decision was delivered by the Tribunal on December 9, 1986.
As stated earlier, during the academic year 1986-87, no
appointment was made to the said post and it was subsequent
to this decision that an advertisement was issued calling
for applications from candidates belonging to all classes
and 5th respondent was appointment to the said post.
Against the decision of the Tribunal the Ist respondent
approached the High Court under Article 226 of the
Constitution, and the High Court held that notwithstanding
the break in her actual appointment, she was continuously in
employment from March 19, 1984 to April 30, 1986. She was,
therefore, entitled to the benefit of the resolutions of the
State Government and the University of Bombay dated
September 29, 1986 and February 27, 1987 respectively which,
according to the High Court, laid down that an employee who
was appointed for two consecutive academic years must be
deemed to have been on probation right from the time of the
first appointment and, therefore, confirmed in the post. The
High Court, therefore, allowed her petition and directed the
appellants to reinstate her forthwith in the post and also
to treat her as if she had been in continuous employment
from March 19, 1984 with the benefit of full back wages,
seniority etc. The High Court also directed the University,
the Director of Ayurveda, Maharashtra and the State of
Maharashtra who were respondents 3,4 and 5 respectively to
the petition, and who are respondents 2,3 and 4 to the
present appeal respectively, to make appropriate sanctions
including grant of money, if necessary. The High Court
further granted cost and directed compliance with the orders
by the appellants within six weeks from the date of its
order, which is April 10, 1990.
6. Although various contentions have been raised we
find that it is not necessary to go into them. According to
us the appellant-Trust has violated the directions of the
Government as well as of the University in the appointments
in question in two major respects, as a result of which
neither the appointment of the Ist respondent nor that of
the 5th respondent can be said to have been validly made.
Unfortunately, these aspects of the matter which are evident
from the record
288
were lost sight of both by the Tribunal and the High Court.
The result has been that the illegalities which are patent
on the face of the record have been perpetuated.
7. The Government of Maharashtra had issued a Govt.
resolution No.USG. 1177/129387/XXXII (CELL) on October 25,
1977 prescribing conditions of service as shown in Appendix
III to the resolution. By a further resolution of April 3,
1978, Government made it clear that the revised scales of
pay which were sanctioned by the resolution of October 25,
1977 could be implemented only after statutes had been duly
made by the University. Since the making of the statutes was
to take some time and the revised scales of pay recommended
of the University Grants Commission were to be effective
from January 1, 1973 as laid down in the GR of October 25,
1977, the Vice Chancellor exercised his powers conferred
upon him under Section 11(6)(b) of the Bombay University Act
1974 (hereinafter referred to as the "Act") and issued his
direction No.192 of 1978 on 7th June, 1978. This direction,
among other things, laid down the mode of recruitment of the
teachers and principals, as follows:
"Futuer recruitment to posts of Teachers and
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Principals of colleges shall be made through a
Selection Committee, the composition of which is
specified in the terms and conditions (Appendix
II)."
Appendix II states as follows:
" Terms and conditions attached to the revised
scales of pay.
(i) x x x x x x x x
(ii) All appointments of teachers in colleges
shall be made on merit and on the basis of all
India advertisement. The qualifications prescribed
for the posts should essentially be related to the
academic attainment in the subject concerned and
should not be linked with language or other
regional consideration. Appointment should not be
made on communal or caste consideration. The
constitution of Selection Committee for
recruitment to the posts of lectures in a college
should be as follows:
(a) Chairman, Governing Body of the College or his
nominee;
289
(b) a nominee of the Vice-Chancellor.
(c) one expert to be nominated by the University.
(d) one nominee of the Director of Education
(Higher Education).
(e) Principal of the college; and
(f) Head of the Department concerned of the
college.
No selection shall be considered valid unless at
least one expert is present. The recommendations
of the Selections Committee shall be subject to
the approval of the Vice-Chancellor.
(Emphasis Supplied)
8. The effect of the aforesaid government resolutions
and the University directions is (a) that all appointment of
teachers in colleges have to be made on merit and on the
basis of all India advertisement;(b) that the appointments
have to be made by a Selection Committee which consists,
among others, of nominee of the Vice-Chancellor, an expert
to be nominated by the University and a nominee of the
Director of Education (Higher Education). No selection will
be considered valid unless at least one expert is present
for the selection.
9. Admittedly, the selection of the 5th respondent was
made by a committee where neither the nominee of the Vice-
Chancellor nor the expert nominated by the University nor
the nominee of the Director of Education (Higher
Education), i.e., in the present case of the Director of
Ayurveda was present. The selection so made was, therefore,
not valid. Shri Bhandare, the learned counsel for the
appellant-Trust Pointed out to us the letter of June 6, 1989
sent by the University of Bombay according approval to the
appointment of the 5th respondent as a lecturer in Sanskrit
on probation from 2nd July, 1987 and contended that in view
of the said approval the invalidity of the appointment, if
any, on account of the absence of the expert in the
Selection Committee, should be deemed to have been condoned.
We are not impressed by this contention. In the first
instance, there is nothing on record to show whether when
the appellant-Trust forwarded its report on appointment of
the 5th respondent, the Trust had apprised the
290
University of the absence of the expert at the time of his
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selection. Secondly, the University has not reserved the
power to relax the rule and permit selection without the
presence of the expert. There is nothing in the University’s
letter to show why the University had condoned the absence
of the expert. It is, therefore, obvious that the approval
given by the University being in ignorance of the true state
of affairs and in breach of the rule is legally ineffective
and cannot validate the appointment.
10. There is further a common illegality in the
appointment of both the 1st and the 5th respondent which
arises on account of the failure to follow the Government
Resolutions and University directions in the matter of
reservation of the seats for the backward classes, which
are binding on the College.
11. On 30th March 1981, the Government of Maharashtra
passed a resolution in exercise of the powers conferred on
it under sub Section (2) of Section 77- C of the Act issuing
instruction to all the non-agricultural Universities in
regard to the reservation of posts to be made in favour of
Scheduled Castes and Scheduled Tribes while making
appointments to teaching and non-teaching posts in the
University affiliated colleges and recognized institutions.
The reservation prescribed was as follows:
(1) Scheduled Castes 13 p.c.
(2) Scheduled Tribes 7 p.c.
(3) Nomadic Tribes & Vimukta Jatis 4 p.c.
Total ---------
24 p.c.
That resolution further says that the various orders
contained in the booklet "Reservation and other concessions
in Government service for backward classes" will be
applicable for recruitment to the teaching and non-teaching
posts reserved for backward classes in the University and
the affiliated colleges and recognized institutions subject
to the following modifications in regard to recruitment to
the teaching posts. The modifications, among other things,
were as follows:
"Similarly, at any given time of recruitment to the
teaching posts, only the total number of reserved
vacancies and the sections from which they are to
be filled in should be
291
determined. It would be enough if the require
percentage is fulfilled as a whole and not with
reference to any particular post. If the reserved
vacancies cannot be filled, then so many posts as
cannot be filled in may be kept vacant for six
months and should be again advertised thrice. Even
after readvertising the posts 3 times if suitable
candidates belonging to backward classes do not
become available, they may be filled in by
candidate belonging to the open category."
"For giving effect to the aforesaid instructions,
it will be necessary for the Universities to make
statutes under Section 77C(1) under their
respective Universities Acts of 1974. For ensuring
immediate implementation, the Vice-Chancellors of
the Universities, under clause (b) of Section 11(6)
of the respective Universities Act of 1974."
(Emphasis supplied)
12. By its subsequent resolution of October 20, 1983,
the Government of Maharashtra clarified its earlier
resolution of March 30, 1981 and stated as follows:
"1. x x x x x x x x
2. After reconsideration of the above decision, it
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is now directed that if suitable candidates cannot
be found to fill posts reserved for backward
classes in Universities, affiliated colleges and
recognized institutions, those posts should be
temporarily filled with candidates belonging to
non-backward classes for one academic year. But as
mentioned in the resolution the appointment of a
non-backward class candidate to a reserved vacancy
should be made only in the event of failure to
find a backward class candidate even after the post
has been advertised thrice.
3. x x x x x x x x"
(Emphasis supplied)
13. Thereafter a further resolution was issued by the
Government on September 29,1986 on the subject stating
therein that it had come to the notice of the Government
that some institutions had not
292
implemented the instructions contained in the earlier
resolutions of March 30, 1981 and of October 30, 1983. The
Government therefore directed that the said directions
should be implemented strictly. This resolution further
directed that the non-backward class candidates who were
being repented for the second and third academic years when
backward class candidates were not found for appointment for
the first academic year, should not be called for
interview every year and that the candidates
belonging to the non-backward classes should be
appointed for the second and third academic year
also, without calling them for interview. It is
further stated in the said resolution that,
similarly, as soon as the reserved post is
dereserved, the appointed candidate should be
confirmed in that post from the date of
dereservation subject to all other terms and
conditions. It was also directed that necessary
statutes should be made by the University in
accordance with the provisions of the Act and for
ensuring immediate implementation, the vice-
Chancellor should issue directions under clause (b)
of Section 11(6) of the Act.
Pursuant to the said resolution of the Government, the
Vice-Chancellor of the University issued direction on March
11, 1987 as follows:
"x x x x x x x
(1) That the reserved teaching post which is filled
in by appointment of a suitable non-backward class
candidate in the first year by following the
prescribed procedure of selection shall be
advertised again for the second and third years for
inviting applications only from persons belonging
to Scheduled Castes, Scheduled Tribes, Denotified
Tribes and Nomadic Tribes. However, applications
may also be invited from persons belonging to non-
backward class if the suitable non-backward class
candidate already appointed in the first year is
not available for reappointment in the second or
third year and or his services are required to be
terminated on account of unsatisfactory performance
of work in the first year;
(2) That if in the second year, in response to the
advertisement, a backward class candidate is not
available, then the suitable non-backward class
candidate already appointed in the reserved post
shall not be required to appear for interview
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before the Selection Committee again for the second
293
and: or third year (s) but that he shall be
reappointed in the reserved post, if he is
available for reappointment;
(3) That if in response to the third advertisement
in the third year, no application is received for
the reserved post from candidates belonging to SC,
ST, DT, or NT, the college authorities shall start
the process of dereservation of the reserved post.
After the process of dereservation of the post is
completed, the appointment of non-backward class
teacher shall be deemed to be on probation with
retrospective effect from the date of his initial
appointment if he has held continuous appointment
for two years in the college or in any other
college under the same management, and that his
appointment shall be confirmed from the dates of
completion of two years of continuous appointment.
The aforesaid direction shall come into force
with retrospective effective from the date of the
Maharashtras Government Resolution, that is, of 29-
9-1986, which means that non-backward class teacher
who is eligible to get the benefit of the above
direction shall be confirmed in his post with
effect from 29-9-1986 or from any later date on
which he may become eligible for confirmation in
accordance with the aforesaid directions.
x x x x x x x x x"
(Emphasis supplied)
14. According to these Government resolutions and
University directions (a) whenever a post is reserved to be
filled in by the candidates from the backward classes, the
post is to be advertise thrice within 6 months in each
academic year. The post is to be kept vacant for the said
months 6 months if no suitable candidate from the backward
classes is available; (b) the post is to be filled in
temporarily for one academic year by a non-backward class
candidate only after the three advertisements have been
given as above; (c) the aforesaid process is to be repeated
for two more academic years; (c) the candidate from the non-
backward classes appointed temporarily in the first
academic, year for want of a backward class candidate, is to
be continued as a temporary appointee for the next two
academic years without being interviewed afresh for the next
two years; (d) if in spite of the third advertisement in the
third academic year, no application is received from a
backward class candidate, the College authorities are free
to
294
start the process of dereservation of the reserved post; (e)
after the process of dereservation of the post is completed,
the appointment of non-backward class teacher will be deemed
to be on probation with retrospective effect from the date
of his initial appointment and he shall be confirmed in the
post on his completing two years of his continuous service.
15. Admittedly, as pointed out earlier, the post was
reserved for the academic year 1983-84. The Trust had not
given three advertisements within six months for any of the
academic years 1983-84, 1984-85 and 1985-86. On the other
hand for the academic year 1983-84, it issued only two
advertisements, viz., on October 30, 1983 and November 12,
1983. It is not known as to why even two advertisements were
not issued at the beginning of the said academic year. The
academic year admittedly begins from June. May that be, as
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it is. As regards the second academic year 1984-85, it
issued only one advertisement and that was on April 28,
1984. It did not issue any advertisement for the academic
year 1985-86. The initial appointment of the 1st respondent
for the academic year 1983-84 and her continuation for the
subsequent academic years, viz., 1984-85 and 1985-86 was
thus in breach of the Government resolutions and the
University directions and, therefore, illegal. Similarly,
since the appointment of the 5th respondent was made without
fallowing the procedure prior to dereservation, viz., three
advertisements repeated every year for all the three
academic years for which the post was to be reserved, his
appointment to the post, as if the post stood legally
dereserved was also illegal since in the facts and
circumstances of the case, it is obvious that the post could
not have been dereserved to make it available for non-
backward class candidate.
16. Shri Bhandare, however, contended that in the
meanwhile the appellant-Trust had taken steps to shift the
reservation from the post of a lecturer in Sanskrit to the
post of lecturer in Sanhita. The Trust had written a letter
on July 2, 1986 for the purpose to the Directorate had by
its letter of July 11, 1986 accorded the sanction. It may,
however, be pointed out the representation made by the
lecturer in Sanskrit to the post of lecturer in Sanhita had
proceeded on the basis that the Trust had made efforts to
fill in the said post from the candidates of the backward
classes as required by the Government resolutions and the
University directions. As pointed out above, the Trust had
not made the efforts as required by the said resolutions
and directions. It had not issued the advertisements
295
as it was required to do. The sanction was obtained and
granted obviously on the basis of inadequate information.
The sanction was, therefore, defective in law. The High
Court unfortunately did not notice these infirmities in the
appointment of either of the respondents.
17. Shri Ganpule, the learned counsel appearing for the
1st respondent contended that since the 1st respondent was
appointed in the first academic year, viz., 1983-84 and
continued for the next two academic years, viz., 1984-85 and
1985-86 she was entitled to the benefit of the directions of
the University contained in Circular No. 98 of 1987 dated
March 11,1987 which had stated that if the non-backward
class teacher is on probation continuously for two years he
would be deemed to be on probation with retrospective effect
from the date of ;his initial appointment. Although the
services of the 1st respondent were terminated w.e.f. April
30, 1986, since she was entitled to the benefit of the
vacation salary following the academic year 1985-86 she
would be deemed to be in service after the completion of the
vacation and, therefore, she may be said to be in service on
September 29, 1986 from which date the said University
direction was to be effective. The contention proceeds on
the footing that her initial appointment and the
continuation of service for the next two academic years was
valid. We have already pointed out above that they cannot be
considered to be valid. However, assuming that her initial
appointment and subsequent continuation of service was
valid, she would not be entitled to the b benefit of the
University Direction of March 11, 1987 because her
entitlement to the vacation salary does not extend her
period of employment up to the end of the vacation. That is
a perquisite which is conferred on every teacher who has
served during the academic year. It has no connection with
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the continuation of the employment since even those teachers
whose services are validly terminated before the beginning
of the vacation period are given the benefit of the salary
of the vacation period. Statute 424 of the University which
is reproduced as Annexure ’C’ to the petition makes this
position clear. The argument, therefore, has no merit.
In the view we have taken the appointments of both 1st
and the 5th respondents were not valid.
18. The post was reserved for the academic year 1983-
84. We are now at the end of the academic year 1990-91 A
fresh appointment, therefore, will have to be made for the
academic year 1991-92. In the meanwhile, several events have
occurred. The appointment of the 1st
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respondent has already been terminated w.e.f. April 30,
1986. The 5th respondent has been in service from July 2,
1987. We are informed across the bar that today he has
become overaged. The 1st respondent was overaged even at the
time of her initial appointment. Although the
advertisemently had stated that the candidate should not be
above 32 years, at the time of her initial appointment
itself, she was about 40 years old. The advertisement had
also not l;mentioned anywhere that the age was relaxable.
But that is a matter of history. In the meanwhile. as
pointed out above, on incomplete information, the
Directorate of Ayurveda has allowed the appellant-Trust to
shift the reservation from the post to the post of a
lecturer in Sanhita. Taking into account all the facts and
circumstances, we are of the view that an opportunity should
be given to the appellant-Trust to cure the illegalities.
19. While, therefore, we maintain the order of Tribunal
and set aside the order of the High Court, we direct the
appellant-Trust to advertise the post three times sufficient
in advance and in any case within six months from the close
of the present academic year, viz.,1990-91 as a post
reserved for the backward class candidate, and if no
application is received from a suitable backward class
candidate, the post will be deemed to have been dereserved.
The Trust will then proceed to fill in the same by a
candidate belonging to non-backward classes. This fact may
be made clear in all the three advertisements. The 5th
respondent will be entitled to apply for the post
notwithstanding the fact that he has by this time become
overaged. If he is selected on the basis of his other
qualifications, the Selection Committee shall relax in his
favour the condition with regard to the maximum age. If he
is appointed to the post, his appointment will be a fresh
one and his past service will not count for the probation
period. The Trust shall for the purpose constitute a proper
Selection Committee according to the rules.
The appeal is allowed accordingly. The parties will
bear their own costs.
20. Before parting with this appeal, we must observe
that our decision has proceeded on the basis of the
Government resolutions and University directions placed
before us. The resolutions and directions as pointed out
above require that the posts reserved for backward class
candidates should be kept vacant for six months and it is
only after the third advertisement during the said six
months in each academic year that they should be filled in
by candidates belonging to
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the non-backward classes if suitable candidate from backward
classes are not available. Literally interpreted, it would
mean that in each academic year, there will be no teacher
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for the first six months, if the process of advertisement is
to begin at the commencement of the academic year. This is
bound to cause hardship to the students. It is, therefore,
incumbent upon the institutions concerned to advertise the
posts thrice within six months well before each academic
year begins. Since in the present case the academic year
begins in June, the process of advertisement must begin in
December of the preceding year. This should be the normal
practice. An exception has to be made in the present case
because the decision is being given today. To overcome the
hardship to the decision is being given today. To overcome
the hardship to the students, we would recommend that the
5th respondent may be permitted to teach as a purely
temporary teacher during the period that the process is not
completed for the academic year 1991-92. However, the
appellant-Trust will take steps within two weeks from the
receipt of this order to start the process of advertisement
as directed above.
G.N. Appeal allowed.
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