Bombay High Court
Shri Rajendra Laxman Sakhare vs State Of Maharashtra & Ors on 11 January, 2013
Author: R M Savant
Bench: R M Savant
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.276 of 2012
Shri Rajendra Laxman Sakhare : Petitioner
versus
State of Maharashtra & Ors. : Respondents
Mr. A M Joshi and Ms. Geeta M Sardesai for the Petitioner.
Mr. A I Patel, AGP for the Respondent Nos.1 to 3.
Mr. Milind Deshmukh for the Respondent Nos.4 and 5.
ig CORAM:- R M SAVANT, J
DATED :- 10th and 11th JANUARY, 2013
ORAL JUDGMENT
1 Rule. With the consent of the parties made returnable forthwith and heard.
2 The Writ Jurisdiction of this Court under Articles 226 and 227 of the Constitution of India is invoked against the Judgment and Order dated 26/8/2011 passed by the learned Presiding Officer, University & College Tribunal, Pune. The controversy in the proceedings is as regards the termination of the services of the Petitioner herein on 31/12/1996.
3 The factual matrix involved in the above Petition can be stated thus :-
mmj 1/19 ::: Downloaded on - 09/06/2013 19:33:35 :::wp-276-12.sxw The Petitioner herein applied for the post of clerk pursuant to the advertisement dated 23/5/1993 issued by the Respondent-Management for the various posts in the college run by it. Amongst the posts advertised was the post of clerk. A perusal of the said advertisement discloses that the same was in respect of posts in the junior college and for what is known as "Minimum Competency Vocational Course (MCVC)". The application filed by the Petitioner was considered and the Petitioner was issued an appointment letter dated 8/7/1993. In the said appointment letter the terms and conditions subject to which the appointment was made were stipulated. The said appointment in terms of clause (4) was made on probation. In terms of the requirement, the management sought the approval to the Petitioner's appointment. The concerned authority i.e. the Deputy Director of Vocational Education and Training granted approval for a period of one year and it was stated in the said approval letter that since the said post was meant for the reserved category, the approval could be given only for a period of one year. It is the case of the Petitioner that he was transferred from the junior college to the senior college by the transfer order dated 18/7/1994. It is further the case of the Petitioner that he was served with the fresh appointment order dated 30/7/1994 for the post of clerk on a consolidated salary of Rs.1000/-. It is further the case of the mmj 2/19 ::: Downloaded on - 09/06/2013 19:33:35 ::: wp-276-12.sxw Petitioner that since the procedure prior to issuance of fresh order of appointment was not followed, the said appointment order was illegal and void. It is the case of the Petitioner that since he was allowed to join senior college, it should be construed that he has continued in service of the college from his initial appointment i.e. 8/7/1993 till the date of his termination. It is therefore the case of the Petitioner that he has completed the period of probation and acquired permanency and therefore his services could not be terminated in the manner done by the order dated 31/12/1996. The aforesaid facts were the foundation of the Petitioner's case in the Appeal which was filed by him under Section 59 of the Maharashtra Universities Act, 1994.
4 The Respondent Nos.4 and 5 filed their reply in the said Appeal. It was their case that though the Petitioner was shown appointed in the post meant for open category, it was specifically mentioned in the appointment letter that the appointment of the Petitioner would be subject to approval of the Government. It is further the case of the Respondent Nos.4 and 5 that the approval which was granted to the Petitioner's appointment was as and by way of special case as the said vacancy was meant for the reserved category and in view of the backlog of reservation, approval was granted only for the period of one year on the condition that the post will be filled mmj 3/19 ::: Downloaded on - 09/06/2013 19:33:35 ::: wp-276-12.sxw in by appointing a candidate from the reserved category in the next year.
It is the case of the said Respondents that the service of the Petitioner came to be terminated vide letter dated 12/7/1994 pursuant to which the Petitioner had submitted a fresh application for the post of clerk for the academic year 1994-95. It is the case of the said Respondents that after termination of the service of the Petitioner, a fresh advertisement was issued pursuant to which one Dnyaneshwar Narayan Javir belonging to the scheduled tribe category was selected and appointed. The said Javir has been appointed in the post wherein the Petitioner was appointed i.e. in the MCVC Section, and the said Javir is in service. It is the case of the Respondent Nos.4 and 5 that the application of the Petitioner which he had made after his termination was considered on humanitarian grounds and the Petitioner was appointed to the post of clerk with effect from 1/8/1994 on a fixed salary of Rs.1000/- per month. After the said appointment, the work in the non-grant divisions of B.A. Part I, II and III was entrusted to the Petitioner. It is the case of the said Respondents that in the academic year 1996-97, the Shivaji University did not grant recognition to the additional divisions, and since there was reduction in the work load, the service of the Petitioner had to be terminated on 31/12/1996. The sum and substance of the case of the Respondent Nos.4 and 5 is that the mmj 4/19 ::: Downloaded on - 09/06/2013 19:33:35 ::: wp-276-12.sxw Petitioner was never continued in the the post sanctioned for the MCVC section after the year 1994, and therefore, he could not be said to have acquired any permanency, and that in so far as his subsequent appointment is concerned, the same had to be terminated on account of the reduction in work load. The case of the Petitioner that he was transferred by order dated 18-7-1994 has been dealt with and the Respondent Nos.4 and 5 averred that the Petitioner was never transferred from MCVC to senior college and that the order dated 18/7/1994 which has produced by the Petitioner is a fabricated and forged document. In so far as the case of transfer is concerned, the Respondent Nos.4 and 5 have also averred that an employee cannot be transferred from an aided to a non-aided section.
5 The Respondent No.3 i.e. the Joint Director, Technical Education & Training, Pune Region has also filed a reply to the said Appeal. The justification for the approval being granted for the period of one year has been stated in the said reply. In so far as the subsequent appointment of the Petitioner is concerned, it has been averred by the Respondent No.3 that the same has been done by the Management exercising its powers of appointment by appointing the Petitioner from 1/8/1994 on a fixed salary of Rs.1000/-.
6 It is on the basis of the aforesaid pleadings that the parties went to mmj 5/19 ::: Downloaded on - 09/06/2013 19:33:35 ::: wp-276-12.sxw trial. The College Tribunal by the Judgment and Order dated 19/6/2001 had allowed the Appeal and had directed continuation of the Petitioner and to be accommodated in terms of the Government Resolution which was issued in the year 1996. The said Judgment and Order of the College Tribunal was taken exception to by the Management on the ground that such a direction could not have been issued by the College Tribunal whilst exercising the jurisdiction under Section 59 of the Maharashtra Universities Act. This Court by the Judgment and Order dated 18/2/2011 set aside the Judgment and Order of the College Tribunal and remanded the matter back to the College Tribunal for a de-novo consideration of the Appeal.
The impugned Judgment and Order passed by the College Tribunal is pursuant to the said remand. It appears from the record that on remand the Respondent Nos.3 and the Respondent No.4 had filed further replies to the Appeal. The College Tribunal as indicated above has by the impugned Judgment and Order dismissed the Appeal.
7 The gist of the reasoning of the College Tribunal is that the Petitioner's services were terminated in the year 1994 on account of the fact that the approval was granted only for one year, as the post in question was meant for reserved category and that the subsequent fresh appointment of the Petitioner was pursuant to the application made by the mmj 6/19 ::: Downloaded on - 09/06/2013 19:33:35 ::: wp-276-12.sxw Petitioner to the Management pursuant to which he was appointed on a consolidated salary of Rs.1000/-, and that the said appointment had to be terminated in view of the fact that the work load was reduced. The College Tribunal tested the case of the Petitioner in so far as the transfer is concerned. The College Tribunal on a comparison of the signature of the Principal on the purported transfer order with the signature of the Principal on the other documents produced by the Petitioner reached a conclusion that the said transfer order was a suspicious document. The College Tribunal also observed that even leaving aside the aspect of genuineness of the said transfer order, the College Tribunal was of the view that the said transfer order does not mention the post to which the Petitioner has been transferred, the pay scale in which he has been transferred or the vacancy in which the Petitioner has been transferred and therefore the transfer order would be of no avail to the Petitioner. The College Tribunal in turn accepted the case of the Respondents that the Petitioner was given a fresh appointment pursuant to the application made by him and was appointed in a fixed salary of Rs.1000/- per month. The College Tribunal was of the view that in the light of the said fresh appointment, the earlier appointment looses its significance.
CONTINUED ON 11TH JANUARY, 2013 mmj 7/19 ::: Downloaded on - 09/06/2013 19:33:35 ::: wp-276-12.sxw 8 As indicated above, it is the said Judgment and order of the College Tribunal which is impugned in the present Petition.
9 Heard the Learned Counsel for the parties. The Learned Counsel for the Petitioner made the following submissions:
(i) That since the Petitioner was appointed to the Junior College which was attached to the secondary school his services are governed by the provisions of the Maharashtra Employees of Private Schools Act and therefore the Petitioner who was appointed on probation in a post advertised for the open category, is entitled to be confirmed after two years of probation.
(ii) That the Petitioner was transferred by the Management by order dated 18-7-1994 to the Senior College. However, the said transfer would have no impact on the Petitioner's right to confirmation and for being continued in service.
(iii) That the Learned Presiding Officer of the College Tribunal erred in comparing the signature of the Principal on the transfer order with the signature on the other documents produced by the Petitioner by having recourse to Section 73 of the Evidence Act. The Learned Counsel would contend that the said course of action as held by the Apex Court is risky.
(iv) That the Tribunal in the event it had any doubt about the mmj 8/19 ::: Downloaded on - 09/06/2013 19:33:35 ::: wp-276-12.sxw genuineness and authenticity of the Transfer Order dated 18-7-1994 ought to have referred the document to the hand writing expert for an opinion and that it is the practice of the Respondent No.4 Management to transfer its employees and then terminate their services. In one such case a Learned Single Judge of this Court has set aside the termination. The Learned Counsel would seek to rely upon the unreported decision of a Learned Single Judge of this Court in Writ Petition No.1819 of 1999 dated 14-1-
2011.
(v) That the factum of transfer cannot come in the way of the Petitioner from being confirmed and if that be so, notwithstanding the Petitioner's appointment being referable to the letter dated 8-7-1993, the Petitioner is entitled to be confirmed at the end of the period of two years and for being continued in service.
10 Per Contra the submissions of the Learned Counsel appearing for the Respondent Nos.4 and 5 and the Learned AGP appearing for the Respondent Nos.1 t 3 are as follows:
(i) That since the Petitioner's appointment letter specifically states that the same is subject to the approval of the State Government and since the State Government has granted approval only for one year as the post according to the Deputy Director of Vocational Education and Training, mmj 9/19 ::: Downloaded on - 09/06/2013 19:33:35 ::: wp-276-12.sxw was meant for the reserved category, the Petitioner's services were terminated by letter dated 31-12-1996.
(ii) That the Petitioner has accepted the said termination as he has not taken exception to it by filing any proceedings.
(iii) That the temporary appointment vide letter dated 30-7-1994 on a consolidated salary of Rs.1000/- has been terminated on account of the non approval granted to the unaided divisions and in view of the reduction in work load.
(iv) That the course of action adopted by the College Tribunal of comparing the signatures of the Principal cannot be taken exception to as the difference or variance in the signature on the alleged transfer order and the other documents is glaring.
11 Having heard the Learned Counsel for the parties, I have given my anxious consideration to the rival contentions. The core issue as it were in the above Petition is as to whether by virtue of the appointment of the Petitioner by letter dated 8-7-1993 he has continued in service and he has acquired permanency on account of the completion of the probation period in the post sanctioned for the MCVC which is the common staff for the Junior and Senior College. In the light of the said core issue the College Tribunal has therefore rightly summarised by observing in the impugned mmj 10/19 ::: Downloaded on - 09/06/2013 19:33:35 ::: wp-276-12.sxw Judgment that if the Petitioner succeeds to show that his appointment which was made by letter dated 8-7-1993 is continued till 1997 then the termination order dated 31-12-1996 would be in contravention of the legal provisions and in that event the Petitioner would be entitled to the relief sought.
12 The ancillary issue to the said core issue is the impact of the fresh appointment which has been given to the Petitioner which is on a temporary basis on a consolidated salary of Rs.1000/-. The core issue therefore would have to be addressed on the touch stone of the subsequent fresh appointment which has been made by the order dated 30-7-1994. In the said context, it is required to be noted that the Petitioner had applied for the post of clerk which was advertised by the Respondent No.4 by an advertisement dated 23-5-1993 for various post in the Respondent No.5 college in the MCVC section. As indicated above one of the posts which was advertised was "the post of clerk". The said post it seems has its genesis in the Central Government Scheme which was being implemented by the College in the matter of conducting the courses of Electronic Technology, Maintenance and Repairs of Electrical Domestic Appliances and Automobile Technicians. The said sanction it seems was given by the letter dated 8-7-1993. By the letter dated 22-9-1993 it was made clear that mmj 11/19 ::: Downloaded on - 09/06/2013 19:33:35 ::: wp-276-12.sxw the post sanctioned for the Junior College should be filled in after taking into consideration the roaster and rules for reservation. Therefore there can be no dispute about the fact that the post of Junior Clerk in the MCVC Section was sanctioned under the Central Government Scheme. The post was undoubtedly advertised for the open category and the Petitioner was appointed by letter dated 8-7-1993. The terms and conditions on the basis of which the Petitioner was appointed has been set out in the letter and one of the conditions is that the said appointment was subject to the approval of the State Government. The letter also stipulates that the Petitioner was appointed on probation. In terms of the standard code therefore a probationer who belongs to the non teaching staff would be on such probation for two years. The Respondent No.4 sought approval to the Petitioners appointment by letter dated 27-6-1994. The appointment of the Petitioner was sanctioned only for the academic year 1993-1994 as a special case because as per the roaster there was a backlog and the post was therefore meant for the reserved category. The Petitioner's services were therefore terminated by the Management by letter dated 31-12-1996.
The receipt of the letter however is sought to be disputed by the Learned Counsel appearing for the Petitioner.
13 Be that as it may, the fact remains that the said termination was not mmj 12/19 ::: Downloaded on - 09/06/2013 19:33:36 ::: wp-276-12.sxw taken exception to by the Petitioner by initiating any proceedings.
However, it seems that during the course of the hearing of the Appeal before the College Tribunal the fact that the Petitioner had approached the Education Officer against his termination, was brought to light and that the said application of the Petitioner was rejected by the Education Officer. The Petitioner did not take any recourse against the order passed by the Education Officer and in fact had filed the Appeal by concealing the fact that he had made a representation against his termination to the Education Officer.
14 It seems that after his termination the Petitioner had approached the Management by an application which was handwritten on a note book paper. The said application which was part of the record of the College Tribunal has been annexed to the affidavit in reply filed on behalf of the Respondent Nos.4 and 5. The endorsement made on the said application of the Petitioner shows that it was received by the Principal on 14-10-1994 and it was inwarded in the office on 21-10-1994 as can be gathered from the stamp on the said letter. The said application of the Petitioner was for the post of clerk. The Respondent No.4 Management took a decision to appoint the Petitioner as a clerk in the Respondent No.2 College on a fixed monthly salary of Rs.1000/-. The said appointment of the Petitioner was mmj 13/19 ::: Downloaded on - 09/06/2013 19:33:36 ::: wp-276-12.sxw continued up to 31-12-1996, however on account of the fact that the State Government had not granted approval to the non aided divisions and also on account of reduction of work load that the Petitioner's services were required to be terminated on 31-12-1996. The finding of the Tribunal in respect of the said fresh appointment which was issued to the Petitioner is taken exception to by the Learned Counsel for the Petitioner on the ground that the Management has misused an earlier application filed by the Petitioner and that there was no question of the Petitioner being reappointed as he was transferred by order dated 18-7-1994. In so far as the said contention of the Learned Counsel for the Petitioner is concerned, it is required to be noted that it is not denied by the Petitioner that the letter in question is in his hand writing. The question is what credence is to be given to the case of the Petitioner. The letter as indicated above has endorsements on it, one is of the Principal which is dated 14-10-1994 and the stamp that it has been inwarded on 21-10-1994. Prima facie therefore it cannot be said that an application made by the Petitioner on an earlier occasion has been misused by the Management. It is required to be noted that the said application does not refer to any advertisement and is a plain application for being appointed to the post of clerk in one of the Schools or Colleges run by the Management. If the application which was made mmj 14/19 ::: Downloaded on - 09/06/2013 19:33:36 ::: wp-276-12.sxw pursuant to the advertisement which was issued in the year 1993 was misused, obviously the said application would have referred to the advertisement pursuant to which the Petitioner had applied. The application on the basis of which the Petitioner was appointed on a temporary basis on a consolidated salary is a simple application for being accommodated. This the Petitioner purportedly must have made after his services came to be terminated on account of the fact that the post on which he was appointed was meant for the reserved category. The College Tribunal was therefore right in holding that in view of the subsequent fresh appointment which was on a temporary basis and on a consolidated fixed salary, the Petitioner had give up his right if any in respect of the earlier appointment which was made vide letter dated 8-7-1993.
15 Now coming to the case of the Petitioner in so far as the transfer order dated 18-7-1994 is concerned, it is pertinent to note that the Management had questioned the genuineness of the said transfer order, in the reply which it had filed in the Appeal. It was the case of the Management that the said transfer order was bogus and fabricated. In the light of the said stand taken by the Management, the Petitioner who had laid much store on the said transfer order ought to have proved the genuineness and the authenticity of the said transfer order in accordance mmj 15/19 ::: Downloaded on - 09/06/2013 19:33:36 ::: wp-276-12.sxw with the process known to law. Though the rules of evidence are not strictly applicable to the proceedings before the Tribunal in the matter of proof of documents etc. The fact remains that the Petitioner had produced a xerox copy of the said Transfer Order and not the original. The Petitioner also did not apply for the document being sent to the hand writing expert in view of its genuineness and bonafides being questioned by the Management. The College Tribunal as can be seen from the impugned Judgment and Order on the basis of Section 73 of the Evidence Act, proceeded to compare the signature on the said Transfer Order with the signature of the Principal on the other documents and on such comparison expressed its suspicion about the genuineness and authenticity of the said transfer order. Though as rightly contended by the Learned Counsel appearing for the Petitioner, the said course of action of comparison is slightly risky and it would always be advisable to asked for the report of a hand writing expert. However, in so far as the present matter is concerned, the discrepancy in the signature of the Principal on the transfer order and his signature on the other documents is glaring and obvious to the naked eye. In the facts of the present case therefore, the said course of action being followed by the College Tribunal cannot be taken exception to. The College Tribunal as indicated above on a comparison of the signatures of mmj 16/19 ::: Downloaded on - 09/06/2013 19:33:36 ::: wp-276-12.sxw the Principal has accordingly recorded a finding as regards the genuineness of the said Transfer Order and has therefore come to a conclusion that the Petitioner's case that he was transferred, cannot be accepted.
16 Assuming for a moment that the said Transfer order is to be taken into consideration, in my view, the same would not further in any manner the case of the Petitioner, that he stands confirmed as a clerk in the Senior College. The said Transfer Order as can be seen is bereft of any particulars as to in which post, in which pay scale or against which vacancy he has been so transferred. The retinue of posts in the Junior as well as Senior College are fixed by the authorities concerned on the basis of the strength of the students and therefore the Management has virtually no discretion in the matter of creation of posts. It is further required to be noted that the Petitioner whilst challenging his termination has not given any particulars as to in which post he was working and since when after the Transfer Order. Therefore even assuming that the Transfer Order is taken into consideration, the same would be of no avail to the Petitioner in so far as his case based on it is concerned.
17 The case of the Management that the Petitioner's services had to be terminated on account of the fact that the post in question in which he was appointed by appointment letter dated 18-7-1993 was meant for reserved mmj 17/19 ::: Downloaded on - 09/06/2013 19:33:36 ::: wp-276-12.sxw category, is further fortified by the advertisement which was issued by the Management after the termination of the services of the Petitioner.
Pursuant to the said advertisement as mentioned herein above one Mr. D.N. Javir has been appointed in the said post and is continuing at present.
This according to me lends credence to the case of the Management that the post in question in which the Petitioner was earlier appointed, was meant for the reserved category.
18 In so far as the case of the Management that the Petitioner's services were terminated on account of the reduction in work load as also non approval granted to the non aided divisions in the Senior College. The said case of the Management has been considered by the Tribunal on the touch stone of the factual material which was placed by the Management before the College Tribunal. On such consideration the Tribunal came to a conclusion that there was in fact reduction of work load as a consequence of which the Petitioner's services were required to be terminated.
19 The case of the Petitioner for his reappointment has also been dealt with by the College Tribunal. The College Tribunal has held that since the appointment was on a temporary basis on a fixed salary of Rs.1000/-, there was no warrant for the Management to follow the procedure.
20 Having heard the learned Counsel for the parties at length and mmj 18/19 ::: Downloaded on - 09/06/2013 19:33:36 ::: wp-276-12.sxw having gone through the impugned Judgment and order of the College Tribunal with the assistance of the Learned Counsel on the either side, in my view, there is no illegality or infirmity in the impugned Judgment and Order for this Court to interdict in its Writ Jurisdiction under Article 226 of the Constitution of India. The Writ Petition is accordingly dismissed. Rule discharged, with parties left to bear their respective costs.
(R M SAVANT, J) mmj 19/19 ::: Downloaded on - 09/06/2013 19:33:36 :::