Full Judgment Text
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CASE NO.:
Appeal (civil) 744 of 2007
PETITIONER:
Deepa Gourang Murdeshwar Katre
RESPONDENT:
The Principal, V.A.V. College of Arts. & Ors
DATE OF JUDGMENT: 13/02/2007
BENCH:
Dr. AR. Lakshmanan & Altamas Kabir
JUDGMENT:
J U D G M E N T
(Arising Out of SLP (C) NO. 22356-22358 OF 2005)
Dr. AR. Lakshmanan, J.
Leave granted.
The above three Special Leave Petitions were filed
against the judgment and final order dated 13.4.2005 in
Writ Petition No. 1914 of 1999, final order dated
5.5.2005 passed by the High Court of Judicature at
Bombay in Review Petition No. 65 of 2005 and final
order dated 3.8.2005 passed by the High Court of
Judicature at Bombay in W.P. No. 4851 of 2005 whereby
the High Court dismissed the writ petitions and review
petition filed by the Appellant.
Background facts
The Appellant applied for appointment in the
college, respondent No.1, on the post of English Lecturer,
pursuant to a vacancy which had arisen by leaving of an
English Lecturer after the Ist term. The appellant was
duly interviewed by the local selection committee and
was appointed as full time lecturer in English on
22.11.1993 on temporary basis for 2nd term subject to
the approval of the University. The appellant joined as
Lecturer and has been working since then.
The College advertised a number of vacant posts for
the academic year 1994-1995 on 29.4.1994 by way of
newspaper publication. One of the posts was the post of
English Lecturer, but the same was reserved for
Scheduled Caste candidate. The advertisement, however,
provided that in case the backward class candidate was
not available, then a candidate from the general category
would be considered for appointment on year to year
basis. No backward class candidate applied for the said
post. Three general category candidates applied out of
which the Appellant was selected and recommended for
appointment by the Six-Members’ Selection Committee
on 11.7.1994.
Vide appointment letter dated 15.7.1994, the
Appellant was appointed as full time Lecturer in the
college for one academic year as per the advertisement.
The problem of non-filling up of reserved seats in
Government and Government-aided colleges were subject
matter of various decisions by the Government. Earlier
there was a Government Resolution of 25.1.1990 which
provided that if no backward class candidate is available
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for five years then the post should be de-reserved. By
way of the Government Resolution dated 19.1.1995, the
Government took a decision that in all Government-aided
colleges, the reserved post of a Lecturer should be
advertised for five years. Thereafter, in the 6th year, an
advertisement should be issued with interchangeability
clause and only if no eligible backward candidate is
available, the post should be de-reserrved and the person
who has been occupying the post on temporary basis
should be considered for regular appointment on the
post. The Mumbai University vide order dated 17.7.1996
implemented the said decision as would be clear from
para 3 of its order dated 17.7.1996. The said circular
was applicable to the existing posts also.
Even in the 2nd academic year i.e. 1995-1996, the
post of English Lecturer was advertised for filling up the
same from Scheduled Caste Category. No backward class
category candidate reported for interview to fill up the
said post of the English Lecturer. The Appellant was,
therefore, once again appointed on temporary basis on
the said post for a period of one academic year.
In the third academic year i.e. 1996-1997 the post
of English Lecturer was again advertised as being
reserved for Scheduled Caste candidate. Applications
were called for. However, no scheduled caste category
candidate applied for and reported for interview.
Therefore, the Appellant was once again appointed on
temporary basis on the said post for one academic year
on 19.7.1996.
For the 4th academic year again the post of Lecturer
of English was advertised by College as reserved post for
Scheduled Caste Candidate on 28.4.1997. However, no
scheduled caste category candidate applied for and
reported for interview. Therefore, the appellant was once
again appointed on temporary basis on the said post for
one academic year on 24.7.1997.
For the 5th academic year i.e. 1998-1999, the post of
English Lecturer was again advertised as reserved post
for Scheduled Caste candidate. It was clearly mentioned
in the advertisement that this was the 5th advertisement.
However, no Scheduled caste category candidate applied
for and reported for interview. Therefore, the appellant
was once again appointed on temporary basis on the said
post for one academic year on 15.7.1998.
Thus as per Government resolution and the
University circular, 6th advertisement with
interchangeability clause had to be issued. The draft of
the said advertisement for the academic year 1999-2000
was forwarded by the College to the University on
3.4.1999. The University duly vetted the said draft
advertisement and returned the same to the College on
7.4.1999 for publication. Accordingly, the 6th
advertisement was published by the College in
Maharashtra Times on 13.4.1999 clearly mentioning that
the post was being advertised for the 6th time on
interchangeability basis as per Government Rules.
However, no Scheduled Caste candidate applied for and
reported for interview.
The report of the Selection Committee Meeting was
forwarded by the College to the University on 30.7.1999
clearly mentioning that no backward class category
candidate had reported for interview in English language.
The nil report for appointment to the post of lecturer in
English was accepted by the University vide letter dated
1.11.1999.
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In the meantime, the appellant had approached the
High Court of Bombay by way of Writ Petition No. 1914 of
1999 for confirmation of her services as no candidate
from backward class had appeared for even an interview
after six years. Vide order dated 12.7.1999, a Division
Bench of the Bombay High Court granted interim relief to
the appellant i.e. the appellant was not to be terminated
from services.
In the meantime, a similar matter of one Mrs.
Madhuri Srivastava came up for hearing before the
Bombay High Court. The Bombay High Court vide order
dated 1.2.2001 observed that since no backward class
category candidate had turned up for the interview, in
terms of the circular of the University dated 17.7.1996,
the lecturer who was working on the post for nine years
was liable to be regularized. Just one day before the final
hearing of the writ petition, the University filed an
affidavit to the effect that the 6th advertisement had yet
not been published in terms of the University Circular
dated 17.7.1996 and hence the post cannot be de-
reserved. Said stand of the University was most
unfortunate as not only the draft advertisement had been
vetted by the University, but subsequently the report of
the Selection Committee was also accepted by the
University.
According to the learned counsel appearing for the
appellant, the affidavit was made available to the
appellant only on the date of the hearing, the appellant
could not dispute the correctness of the same and hence,
in such circumstances, the Bombay High Court passed
the impugned order directing the publication of the 6th
advertisement. The directions issued by the High Court
read as follows:
"(i) Respondent No.1 within four weeks from today
to forward to respondent No.2 a draft
advertisement based on interchangeability. On
the draft advertisement being received and after
verifying the same and if earlier there had been
five advertisement already issued by the
University to permit the respondent No.1 to
issue the advertisement based on
interchangeability.
(ii) If on the advertisement being issued no
candidate from reserved category is available,
respondents to permit the petitioner to continue
in the post presently held by her.
(iii) After the sixth advertisement, if no candidate
belonging to the backward class is available,
respondent No.1 to send representation to
respondent No.3 to de-reserve the post. The
University after complying with the procedure to
forward the same to respondent No.4.
(iv) Respondent No.4 considering the clause for de-
reservation and considering the judgment of this
court in W.P. No. 1914 of 1999 dated 13th April,
2005 which has taken a view that it is not
necessary that after de-reservation, that post
must be re-advertised but it is open to the
Government to relax the condition, to take the
appropriate decision and communicate the same
to respondent No.3.
(v) The Petitioner pursuant to the sixth
advertisement if no backward class candidate is
selected to be continued and the petitioner’s
services will not be terminated. If the order be
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adverse it is not to be acted upon for a period of
twelve weeks after the communication of the
decision of respondent No.4 by respondent No.1
to the petitioner.
Rule made absolute accordingly. There shall be no
order as to costs.
Sd/- F.I. Rebello,J.
Sd/- S.P. Kukday,J."
It is relevant to mention here that on the very same
day, the very same Bench of the Bombay High Court
disposed of two more writ petitions by two similarly
situated lecturers of the very same college. In both the
cases, the 6th advertisement had been issued and since
the teachers had been working for a number of years, the
High Court held that there was no need for fresh
advertisement and, therefore, directed that the
petitioners in those writ petitions, will be treated as
permanent.
When the appellant came to know that an incorrect
statement has been made by the University that no 6th
advertisement has been published, the appellant filed
Review Petition No. 65 of 2005 clearly pointing out the
error apparent on the record and the mis-statement by
the University.
When the said review petition came for hearing on
5.5.2005, the University made another incorrect
statement that though the advertisement had been
issued, no interviews had been held because of the stay
order of the High Court. The High Court found that the
6th advertisement had been issued, but however, wrongly
found that the interviews were not conducted. As stated
above, the interviews were held on 5.7.1999 much before
the interim order of the High Court on 12.7.1999. The
University had not taken this stand as the report of the
interview was sent to the University and the University
accepted the said report. The order dated 5.5.2005
passed by the High Court in Review Petition No.65 of
2005 reads as follows:
"The review is based on the contention that six
advertisements for the post of Lecturer in English
having interchangeability clause was advertised on
13.4.1999 and considering that directions given by
this Court in the Judgment dated 13.4.2005 requires
to be reviewed.
We have considered the contention of the
learned counsel for the Review Applicant. We find that
after advertisement was issued, petitioner approached
this Court by way of Writ Petition No. 1914 of 1999 on
12.7.1999 and interim relief was granted in terms of
Prayer Clause (g). Prayer clause (g) was to the effect
that the services of the petitioner should not be
terminated and that she should be allowed to
continue. As such the Management could not have
proceeded with interview and by letter of 30.7.1999,
considering the order of this Court issued letter of
appointment in favour of the Petitioner herein.
Considering the above, as the interviews could
not be conducted in terms of the sixth advertisement,
we do not find this to be a fit case to review the order
dated 13.4.2005. With the above directions,
application stands disposed of. No order as to costs.
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Sd/- F.I.Rebello,J.
Sd/- S.P. Kukday,J."
When the appellant came to know even at the time
of hearing of the review petition an incorrect statement
had been made, the appellant filed fresh Writ Petition
No.4851 of 2005. The College filed the counter affidavit
bringing the correct facts to the notice of the High Court.
However, the High Court refused to entertain the fresh
writ petition on 3.8.2005 and passed the following order:
"CORAM: A.P. Shah & D.Y. Chandrachud,JJ.
3rd August, 2005
P.C
The present petition is in the nature of a
review of the order passed by the Division Bench in
Writ Petition No. 1914 of 1999. The Petitioner, in fact,
sought review of the said order by filing a review
application which came to be dismissed by the
Division Bench by order dated 5th May, 2005. It is not
permissible for the petitioner to seek the same relief
again by filing a fresh petition. Petition is, therefore,
dismissed.
Sd/- Judge
Sd/- Judge"
The appellant filed the present appeal by way of
three special leave petitions challenging all the three
orders passed by the High Court including the first
order dated 13.4.2005 passed in W.P. No. 1914 of 1999.
This Court vide order dated 24.10.2005 issued notice
to the respondent and granted status quo.
During the pendency of the special leave petitions,
the University vide its letter dated 6.9.2005
acknowledged the facts that it would not be proper to
issue a fresh advertisement and, therefore, requested
the College to send a proposal for de-reservation of the
post. The letter dated 6.9.2005 reads as follows:
" UNIVERSITY OF MUMBAI
No. (29)/6115/2005
Dated: 6th September,2005
To
The Principal
Annasaheb Vartak College of Arts,
Commerce and Science,
Vasai Road,
District Thane(W)-401 202
Sub : Approval for advertisement
Madam,
This is in reference to your letter No.
AVC/Advt/292/2005-06 dated 18th May, 2005.
It is clear from the advertisement annexed to the
aforesaid letter for the post of Lecturer (English) was
advertised with interchangeability clause on 13th April,
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1999 in Maharashtra Times newspaper and
accordingly interview was also held on 5th July, 1999.
In view of the above, it would not be proper for
issuance of one more advertisement for the post of
Lecturer (English). You are, therefore, requested to
submit a proposal for de-reservation of the said post in
the format enclosed herewith to the University. After
receipt of the proposal, the same would be scrutinized
and sent to the State Government for further approval.
Yours truly,
Sd/-
illegible
Vice-Chancellor
(Special Branch)"
Thus it is seen that the University has now
acknowledged that there is an error in the order of the
High Court and that the direction of the High Court to
issue 6th advertisement was based on wrong facts. The
College vide letters dated 1.10.2005, 22.6.2006 and
24.8.2006 requested for de-reservation of the post which
read as follows:
VIDYAVARDHINI’S
Annasaheb Vartak College of Arts,
Kedarnath Malhotra College of Commerce &
E.S. Andrades College of Science
Vasai Road West-401 202, Distt. Thane
No.DIR/7226/2005-2006 Dated 1.10.2005
To
The Addl.Secretary
Special Cell,
University of Mumbai
Mumbai-400 032
Sub: De-reservation of Post : Mrs. D.G.
Murdeshwar Katre Lecturer in English
Sir,
That our college had forwarded a proposal for de-
reservation of the post held by Mrs. D.G. Murdeshwar-Katre,
Lecturer in English vide letter dated 6.5.2005 for necessary
action at your end. Pursuant to the telephonic conversation
held on 30.9.2005 with your office, we were requested to
forward the necessary details in Form-A which is enclosed
herewith.
It is requested that appropriate steps may be taken for
de-reservation of the post of Mrs. D.G. Murdeshwar Katre.
Thanking you,
Yours truly,
Sd/-illegible
Principal
Encl:- Form A"
"AVC/DER/202/2006-07 22/6/06
To
The Registrar,
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University of Mumbai,
Mumbai-400 032
Sub: De-reservation of post-Mrs. D.G. Murdeshwar-
Katre, Lecturer in English
Sir,
I am forwarding herewith application along with
enclosures of Mrs. Deepa G. Murdeshwar Katre,
Lecturer in English for De-reservation of post.
I request you to look into the matter and do the
needful.
Thanking you,
Yours faithfully,
(Dr. S.S. Kelkar)
Principal
Encl. As above
"VIDYAVARDHINI’S
Annasaheb Vartak College of Arts,
Kedarnath Malhotra College of Commerce &
E.S. Andrades College of Science
(Affiliated to the University of Mumbai)
AND Junior Colleges
Vasai Road West-401 202, Distt. Thane
Ref.No.AVC/DER/1100/2006-07 Date: 24/8/2006
To
The Dy. Registrar
Spl. Cell,
University of Mumbai,
Mumbai-400 001.
Sub: De-reservation of post: Mrs. D.G. Katre-
Lecturer in English
Sir,
I have to inform you that our Proposal for
De-reservation of post of Mrs. D.G. Murdeshwar
\026 Katre, Lecturer in English has been forwarded
to your office vide out letter No. AVC/DE-
R/257/2005-06 dated 6/5/2005. The
information in Proforma ’A’ has been forwarded
vide our letter No. AVC/DER/1226/2005-06 dt.
1/10.2005. Zerox copies are enclosed herewith.
I request you to look into the matter and
do the needful.
Thanking you,
Yours faithfully,
Sd/-
(Dr. S.S. Kelkar)
Principal
Encl. As above"
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However, because of the directions of the High
Court in the impugned order regarding issuing of 6th
advertisement, the University has not forwarded the
proposal any further and is maintaining status quo.
We heard Mr. Gaurav Agrawal, learned counsel
appearing for the appellant and Mr. Ravindra K. Adsure,
learned counsel appearing for the University and Mr.
Prashant Kumar, learned counsel appearing for the
College.
Mr. Gaurav Agrawal, learned counsel appearing for
the appellant submitted that the High Court failed to
consider that its first order dated 13.4.2005 had been
passed by relying upon a fraudulent mis-representation
of the respondent-University contained in the affidavit
dated 12.4.2005 that the 6th advertisement had not been
issued, when the indisputable fact was that the said
advertisement had been issued as per the approval of the
University itself on 13.4.1999. Therefore, learned
counsel submitted that on this ground alone, the order
dated 13.4.2005 ought to have been recalled and the
factum of issuing the advertisement was in terms
admitted at the time of hearing of the review petition. It
was further submitted that the High Court failed to
notice that pursuant to the advertisement dated
13.4.1999 interviews for the reserved post of English
Lecturer in the College (respondent No.4) were held on
5.7.1999 and no candidate from the backward class had
turned up for the interview. Likewise, the High Court
has not noticed that the College vide letter dated
30.7.1999 had given a non-availability report in relation
to interviews for the post of English Lecturer and this
report was accepted by the University on 1.11.1999.
Therefore, the submission that the interview could not be
proceeded with in view of the interim order of the High
Court was patently not correct. It was also submitted by
learned counsel appearing for the appellant that the High
Court at the time of hearing the review petition was also
mislead by the respondent-University as an impression
was given that no interviews had been held pursuant to
the advertisement dated 13.4.1999 which was clearly
belied by the documents of the University itself. It is
clear that even the Bench hearing the review petition had
been mislead by the respondent-University by making a
false statement, the review order dated 5.5.2005 was
vitiated by fraud and was liable to be recalled by the High
Court. It was also contended that the High Court erred
in dismissing the writ petition in a cursory manner by
the impugned order dated 3.8.2005 without appreciating
the contentions raised by the appellant which were fully
supported by indisputable documents on record, which
documents emanated from the College and the
University. The writ petition clearly indicates how the
High Court had been mislead by the false statements
made by the University and the High Court ought to have
considered the submissions made by the appellant.
The High Court, in our opinion, has erred in law
rejecting the writ petition without considering the merits
of the matter though the merits of the matter were
specifically argued by the appellant and the mis-
representations made by the University were brought to
the notice of the High Court.
It is not in dispute that the appellant has been in
service of the respondent-College for the last 12 years.
No candidate from the reserved category was available for
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six years. The appellant continued on the temporary
basis year to year and hence it is a fit case where the
appellant should be regularized on this post after de-
reserving the same and if the appellant is now thrown
out, the appellant would be age barred for any other
service.
We are of the opinion that the case on hand is a fit
case for interference by this Court in exercise of the
jurisdiction under Art. 136 of the Constitution of India in
view of the misrepresentations made by the respondent-
University and considering the long service rendered by
the appellant to the respondent-College at a time when
no other candidate was willing to take the assignment.
This apart, the appellant would be deprived of her
livelihood if she is thrown out of her employment and
irreparable injury would be caused to the appellant if the
prayer made in the appeal is not granted. On the other
hand, the respondents would not suffer any prejudice by
granting the prayer made in the appeal as the appellant
is fully qualified to teach English and has been doing so
for the last 12 years.
It is well settled by catena of decisions of this Court
that if a case of fraud or mis-representation of such a
dimension is discovered that the very basis of the order
passed by a Court of law is affected, the Court can recall
its order. The power to recall an order founded upon
fraud and mis-representation is an inherent power of the
Court.
The present case is one such instance where the
High Court has mislead by incorrect representations
made by the University at the time of hearing of the writ
petition and the review petition. The question was
whether the post occupied by the appellant was entitled
to be de-reserved as for six years no backward class
candidate was available.
We have already noticed that the statement made
before the Court was not correct. The records also reveal
that the interviews for the post of English Lecturer
pursuant to the 6th advertisement were made on
5.7.1999 and no candidate belonging to the backward
class turned up for interview. The University was fully
aware of this as the University had on 1.11.1999
accepted the non-availability report. However, it mislead
the Review Bench of the High Court by sating that no
interviews were held. The review order dated 5.5.2005
was totally vitiated due to fraud which compel the
appellant to file a fresh writ petition challenging the order
of the University of Bombay calling for the 6th
advertisement. However, the High Court by the
impugned order dated 7.8.2005 dismissed the writ
petition by relying on the dismissal of the earlier writ
petition and review petition without appreciating that the
previous orders had been founded upon fraudulent mis-
representations made by the University and the said
orders were liable to be recalled.
When fraud was clear on the fact of the record, the
High Court erred in law in dismissing the writ petition of
the appellant.
Learned counsel appearing for the respondents was
not able to controvert the factual statements made by the
learned counsel appearing for the appellant at the time of
hearing. The arguments made by the learned counsel
appearing for the appellant are fully supported by the
records filed before the High Court and also the
annexures and material placed before us. We, therefore,
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have no hesitation in accepting the arguments advanced
by the learned counsel appearing for the appellant and
allowing the appeal.
In view of the letter of the University dated 6.9.2005
in which the University had acknowledged that the 6th
advertisement had indeed been issued and it would not
be proper to issue a 6th advertisement, the basis of the
impugned order is incorrect and, therefore, the same is
liable to be set aside on this ground. In such
circumstances, the case of the appellant would be similar
to that of Mrs. Bina Patil and Mrs. Madhuri Srivstava
and since the appellant has worked continuously for the
last 13 years, it is a fit case for this Court to pass a
similar order as in the matter of aforesaid two persons.
We, therefore, allow the appeal and set aside the
orders passed by the High Court with a direction to the
respondents to regularize the services of the appellant on
the post in question after de-reserving the same.
However, there shall be no order as to costs.