Bombay High Court
Ms. Bilquis Wahab Quraishi vs Chikitsak Samuha S.S. And L.S. Patkar ... on 18 March, 1993
Equivalent citations: 1995(1)BOMCR34, (1994)96BOMLR565
JUDGMENT Ashok Agarwal, J.
1. The petitioner has filed the present petition seeking to impugn the action of the respondent No. 1-college in terminating her services as a lecture. After the termination, the petitioner preferred an appeal to the College Tribunal. The said appeal was dismissed. That order in also impugned is the present petition.
2. The petitioner passed her B.Com.. She secured 48 percent marks. She passed her M.Com. examination when she secured 53.6 percent marks. She also passed a Diploma in higher education. According to the petitioner, she commenced her career as a lecturer way back in the year 1971.
3. The first respondent is the Chikitsak Samuha S.S. & L.S. Patkar College situated at Goregaon (West), Bombay - 62. The said Patkar College is run by the Chikitsak Samuha Trust, the second respondent herein. In the academic year 1980-81 the first respondent-college introduced the faculty of commerce in its curriculum. Hence, the need to employ lecturers to teach the subjects of Commerce and Marketing arose during the academic year 1981-82. On 24th March, 1981, the petitioner applied for the job. With the commencement of the academic year, on the 20th of June, 1981, the petitioner was appointed as a Lecturer in Commerce. This was by a letter of appointment dated 20th of July, 1981. By the letter, the petitioner was appointed as a part time temporary lecturer for one academic year commencing from the 20th of June, 1981 to the 20th of April, 1982. By a communication dated the 2nd of December, 1981, the University of Bombay, who is respondent No. 5 herein, accorded approval to the appointment.
4. During the academic year 1982-83 the workload in the faculty of Commerce had increased. It, therefore, became necessary to appoint a lecturer on full time basis. By a communication dated 10th of August, 1982, the petitioner was appointed a full time temporary lecturer. The appointment was for one academic year i.e. from the 1st of July, 1982 to the 20th of April, 1983. The said appointment was approved by the University by a communication dated the 27th of August, 1982. The petitioner's services were continued for the next academic year i.e. 1983-84 by a communication dated the 21st of July, 1983. The petitioner was appointed a full time temporary lecturer for a period of six months from 20th of June, 1983 till the 20th of December, 1983. The letter provided that her appointment is on purely temporary basis and terminable at any time without any notice. By a communication dated the 21st of June, 1983, the college sought approval of the University. By a further letter dated 15th of September, 1983 the petitioner's appointment was continued till the end of the academic year 1983-84 i.e. till 20th of April, 1984. The letter provided that the appointment was on purely temporary basis.
5. On the 10th of March, 1984, the college issued an advertisement inviting applications for the post of lecturer in Commerce and Marketing. In response, the petitioner applied and was appointed with effect from 20th June, 1984. On 9th August, 1984 she was selected through the Selection Committee. As in the earlier letters of appointment, the present letter of appointment also mentioned that the appointment was on purely temporary basis and was for the current academic year 1984-85. Like on previous occasions, the University, by its communication dated the 31st of October, 1984, accorded approval to the appointment.
6. On the 16th of February, 1984, the College once again issued an advertisement and the petitioner once again, on the 20th of February, 1985, submitted her application. By a communication dated the 1st of July, 1985, the services of the petitioner as full time lecturer were continued again on purely temporary basis. By the said communication, the petitioner was, for the first time, informed that the appointment is made on a reserved post for Scheduled Castes/Scheduled Tribe and Denotified Tribe. The petitioner was informed that she will be required to vacate the post as soon as a candidate from the above category is available. In the meanwhile, the petitioner was appointed Head of the Commerce Department with effect from June, 1985. The appointment as Head of the Department was confirmed by a letter dated the 4th of November, 1985.
7. The College once again, on the 12th of March, 1986, issued one more advertisement inviting applications. As in the past, the petitioner once again applied for the post and by a letter dated the 19th of June, 1986, the College continued the petitioner as full time lecturer on purely temporary basis and against a reserved post for SC/ST/DT and NT. She was informed that she will be required to vacate the post as soon as SC/ST/DT and NT candidate is available. Certain development took place. The petitioner's services were not continued for the next academic year commencing from the 20th of June, 1987. When she reported for work on the commencement of the academic year, she was orally informed that her services stood terminated with effect from the end of the previous academic year i.e. from the 20th of April, 1987. The said action of the college refusing to continue her in service is impugned in the present petition. Prior to the 20th of April, 1987 certain disputes appear to have arisen between the lecturers on the one side and the college on the other, in respect of grant of permanency. The college continued to term the lecturers as `purely temporary and for specified periods' namely during each academic year. The lecturer claimed that they were entitled to be treated as `confirmed lecturers'. They objected to the practice of the college to call for applications every year and to make appointments each year on temporary basis. The college, in turn, called upon the lecturers to fill-in approval forms to be sent to the University for grant of approval of their appointments. In the letter, the lecturers were described as `temporary'. The college insisted that the lecturers should sign the approval forms. The lecturers protested as they were described as `temporary'. Some of the lecturers signed under protest. The petitioner declined to sign. The services of the petitioner were not continued. Prior to the end of the academic year of 1986-87, the petitioner filed a suit S.C. Suit No. 1571 of 1987 in the City Civil Court for a declaration that she is a permanent lecturer. By an order dated the 20th of July, 1987, the City Civil Court ruled that it had no jurisdiction. The petitioner almost immediately filed an appeal to the College Tribunal. By a judgment and order dated the 5th of February, 1988, the College Tribunal dismissed the appeal. The said order is also impugned in the present petition.
8. The facts narrated above shows that the petitioner continued to work as a lecturer in the first respondent college right from the academic year 1981-82 till the academic year 1986-87. The petitioner, however, was given fresh appointment letters each year styling her as `temporary'. Each time she was appointed for specified periods. The services of the petitioner were terminated with effect from the 20th of April, 1987. Before the College Tribunal and before me, the college has justified the termination on several grounds. It is first contended that the petitioner was a temporary lecturer. Her appointment was on purely temporary basis. It was for a specific period. At the end of that period her service stands terminated. It is next contended that the petitioner does not hold the requisite qualifications. She is, therefore, not entitled to be continued to the post. It is further contended that the post is reserved for the backward class candidates and hence the petitioner cannot be continued on the reserved post. It is lastly contended that the college called upon the petitioner to sign the approval for which she declined. She was, therefore, guilty of indiscipline. Further more, the petitioner did not reapply for being appointed for the academic year 1987-88 and hence she was not entitled to be continued.
9. The parties have placed on record a Government Resolution dated the 4th of October, 1975. It is not necessary to make a reference to the resolution as there is a further resolution passed by the Government on the 25th of October, 1977. That would be a relevant resolution as the same held the field when the petitioner first applied for the post on the 20th of June, 1981. Clause V of the resolution deals with qualifications. Under sub-clause (b) a college teacher is expected (i) to be one having a consistently good academic record with first or high second class (B+) at master's degree in a equivalent degree of a foreign University and, (ii) A.M. Phil Degree or a recognised degree beyond the master's level or published work indicating the capacity of a candidate for independent research work. The clause further provides that, the aforesaid qualifications are applicable to teachers who may be recruited hereafter i.e. on or after the date of the said revised Government Resolution i.e. the 25th of October, 1977. The qualifications are also made applicable to teachers recruited on or after 4th October, 1975. It further provides that teachers who are recruited during the period 4-10-1975 and 25-10-1977 and who do not possess the qualifications will have to acquire the same within a period of 5 years from the date of the revised resolution i.e. 25th October, 1977 failing which they shall not be allowed to earn any future increments till they satisfy the condition. The resolution further provides that in respect of teachers recruited on or before 3rd October, 1975 who do not posses the qualifications should be required to attain the same within a period of 5 years from the date of the resolution failing which they shall not be allowed to earn any further increments till they have satisfied the condition. In respect of new recruitment after the date of the resolution, colleges were permitted to recruit candidates with lower qualifications only in case a person with the prescribed qualifications was not available or was not considered suitable provided that such person will have to acquire the prescribed qualifications within five years from the date of his appointment failing which he shall not be allowed to earn any future increment and his services will be liable to be replaced by recruiting a person possessing the prescribed qualifications.
11. It is common ground that the petitioner does not possess the academic qualifications as prescribed in the aforesaid Government Resolution. She was employed because no other candidate having the prescribed qualifications was found suitable. Under the resolution, the petitioner was required to acquire the requisite qualifications within a period of five years. Since the petitioner was appointed in June, 1981 it was expected that she should acquire the qualifications by June, 1986. If she failed to acquire qualifications, as per the Government Resolution, the college had the authority to terminate her services and appoint a fresh lecturer possessing the prescribed qualifications.
12. Before the expiry of the aforesaid period of five years, the University issued a circular bearing No. 238 of 1983 dated the 16th of June, 1983. The aforesaid circular was issued in compliance with the instructions contained in the Government Resolution dated the 31st of January, 1983. The circular provides that the qualifications prescribed for lecturers in the colleges shall be (a) Good academic record with at least Second Class (6 in the seven-point scale) Master's degree in a relevant subject from an Indian University or equivalent degree from a foreign University; and (b) an M. Phil, degree or a recognised degree beyond the master's level or published work indicating capacity of a candidate for independent research work. Here again, the petitioner admittedly does not possess the said qualifications. There is, however, a proviso attached to the above requirement. It is as under:
"Provided further that if a candidate possessing the qualifications as at (b) above is not available or not considered suitable, the college, on the recommendation of the Selection Committee, may appoint a person possessing a good academic record on the condition that he will have to obtain an M. Phil. Degree or a recognised degree beyond the Master's level within eight years of his appointment, failing which, he will not be able to earn future increments till he obtains that degree or give evidence of equivalent published work of high standard."
An explanation to the circular defines the `Good academic record' as under :-
"Explanations :- (i) For the purpose of determining "good academic record" one of the following criteria may be adopted :-
(i) A candidate holding an M. Phil, degree should possess at least a second class Master's degree;
(ii) A candidate not holding an M. Phil, degree should possess either (a) a high second class Master's degree and a second class Bachelor's degree; or (b) a second class Master's degree and a first class Bachelor's degree."
For the purposes of determining high second class, the mid-point between the minimum percentage of marks fixed by a University for award of second class and first class may be taken.
The circular further provides as under :
"(2) That the qualifications mentioned above are applicable to Lecturers/Principals recruited by colleges on or after 4th October, 1975 but before 31st January, 1983. Such Lecturers/Principals recruited by Colleges as did not possess the qualifications mentioned above will have to acquire these qualifications within a period of eight years from 25th October, 1977. If they are unable to do so during this period, they shall not be allowed to earn any future increment till they have satisfied this condition."
13. It would, thus, appear that under the proviso a candidate for being appointed after the issue of the circular was required to qualify the first requirement provided under Clause (a) i.e. good academic record with at least second class (6 in the seven point scale) Master's degree from an Indian University or an equivalent degree from a foreign university. The only exception was made in respect of possessing an M. Phil, or an equivalent qualification and that qualification under the proviso was required to be obtained within a period of eight years. However, under Clause (2) the lecturers, appointed prior to the 31st of January, 1983 could be candidates who did not possess either of the qualifications under Clause (a) and (b). Such candidates under Clause (2) were required to acquire both the requisite qualifications within a period of eight years from the 25th of October, 1977 which is the date of the earlier Government Resolution. In either of the contingencies failure to acquire the requisite qualifications does not entail the concerned lecturers to be terminated from service. All that is provided is that, on failure to acquire the requisite qualifications the concerned lecturer will cease to earn future increments. In the instant case, the petitioner was first appointed in the year 1981. Under the aforesaid circular she was expected to acquire the requisite qualifications within eight years from 25th October, 1977. She, therefore, was expected to have acquired the qualifications upto or prior to October, 1985. Failure on the part of the petitioner to acquire the qualifications under the said circular cannot entail her services being terminated. The only consequence is that she will not be entitled to earn future increments till such time that she acquires the qualifications. The petitioner, in fact, on the 30th of January, 1987, applied for leave for appearing for M. Phil. The leave was not sanctioned and the petitioner's services were terminated. In my judgment, the said termination cannot be justified on the ground that the petitioner lacks the requisite qualifications to continue to hold the post of a lecturer. If she has failed to acquire the qualifications within a period of eight years, all that the college could have done under the circular is, to stop her increments. The college was not justified in terminating her services on the ground of lack of requisite qualifications.
14. Mrs. Doshi, appearing for respondent Nos. 1 and 2, contended that the case of the petitioner did not fall under Clause (2) but Clause (4) which is as under :-
"(4) that in respect of new recruitment to the post of teachers in colleges on or after 31st January, 1983, the colleges may recruit a person with lower qualifications only in case a person with the prescribed qualifications is not available or is not considered suitable, provided that such person will have to acquire an M. Phil, degree or a recognized degree beyond the Master's level or published research work indicating his capacity for independent research work, within five years from the date of his appointment, failing which, he shall not be allowed to earn any future increment and his services will be liable to be replaced by recruiting a person possessing the prescribed qualifications."
A plain reading of the above clause shows that the same is applicable only to candidates who are recruited on or after the 31st of January, 1983. As far as the petitioner is concerned, she has been appointed in June, 1981. Mrs. Doshi however, contends that the services of the petitioner prior to the academic year 1983-84 should not be taken into account because that was a temporary appointment for a fixed period. Each time she was appointed as a fresh candidate. Hence, when she was appointed in June, 1983 it was a fresh appointment. Hence, she is a lecturer appointed after the 31st of January, 1983 and hence her service will be governed by the aforesaid Clause (4) and not by Clause (2).
15. In my judgment, it is difficult to accept the above proposition for the simple reason that the same proceeds on an assumption that the petitioner is a new recruit who is appointed afresh after the 31st of January, 1983. It completely ignores the petitioner's, services from 1981. Whatever be the nature of appointment and the wordings of the letters of appointment it cannot be disputed that the petitioner was in service of the college as a lecturer from June, 1981. She, therefore, cannot be treated as a fresh incumbent after the 31st of January, 1983. Her case, therefore, cannot fall under Clause (4) but will fall under Clause (2). Hence, her services are not liable to be discontinued as is contemplated under Clause (4). The only penalty which can be visited upon the petitioner is that she will forego all her future increments after the period of eight years from 25th October, 1977. She will not be entitled to any increments with effect from 25th October, 1985. The action of the respondent Nos. 1 and 2 in terminating the services of the petitioner on the ground of lack of requisite qualifications cannot be up-held and is required to be set aside.
16. I will not consider the next ground set up for supporting the action of termination, viz., that the petitioner's appointment is a purely temporary appointment for a specified period. At the end of the said period the services of the petitioner stand automatically terminated. In this behalf, Mrs. Doshi has placed reliance on statute 409 (XXII) and (XXIV) which defines the terms `probation' and `temporary'. Clause (xxii) provides as under :
"(xxii) "Probation" means an appointment made on specified conditions for a stipulated period to a post for determining one's fitness for eventual confirmation in the post."
Clause (xxiv) provides as under :
"(xxiv) "Temporary Appointment" means an appointment made on a purely temporary basis either in a permanent post or a tenure post or against a temporary position/vacancy."
Mrs. Doshi has pointed out that the appointment of the petitioner was not made on probation. Hence, it could not be urged on her behalf that at the end of the probationary period she stands confirmed. As specifically stated in the letters of appointment, the petitioner's appointment was `temporary' appointment. Mrs. Doshi has pointed out that temporary appointments can be made to a permanent post. Hence, merely because the appointment is to a permanent post that does not give rise to a right to the petitioner to claim permanency. In the instant case, the petitioner was appointed on a purely temporary basis and that too for a specified period. The appointment was a tenure appointment. The same came to an end at the end of the tenure. Hence, the petitioner cannot claim a right to the post.
17. In my view, the interpretation which is sought to be suggested by Mrs. Doshi, if accepted, would enable the managements of colleges to continue to make temporary appointments for specified period, as has been done in the present case, and continue doing this year after year and, thus, deprive the lecturers of their right of permanency. The temporary appointment, as I read its meaning, can only be in respect of leave vacancies or in respect of temporary influx of work or in respect of open candidates being appointed against reserved posts etc. The work for which a temporary appointment can be made has to be essentially of a temporary nature. It is true that the clause makes reference to a temporary appointment being made to a permanent post. That does not, however, mean that temporary appointments can be made year after year and thereby deprive a right of permanency by taking shelter of the aforesaid definition. The post may be permanent but the requirement to fill that post has to be of a temporary nature. An incumbent of a permanent post may have proceeded on leave and it may therefore have become necessary to fill in the leave vacancy. The appointment is therefore temporary. It may be an appointment in permanent post, but the appointment is temporary i.e. pending the period of leave. It is only such an appointment which is of a temporary nature which can be filled up by a temporary appointment. In the instant case the post is permanent. The workload in the commerce faculty in the first respondent college has increased and not decreased. The petitioner, therefore, could not have been deprived of her right of permanency by merely terming her appointments as purely temporary and for the specified periods. The above contention of Mrs. Doshi that the order of termination is justified on the ground that the petitioner's services were purely temporary and for a specified period, is therefore liable to be rejected.
18. I will next take up for consideration the further ground which is urged in support of the order of termination i.e. the petitioner has refused to sign the approval form. According to Mrs. Doshi, the college requested the petitioner to sign the approval form. It even permitted her to sign under protest. The petitioner refused. The petitioner, in the circumstances, is guilty of disobedience to the directions of the college. She is, therefore, guilty of misconduct. The college, in the circumstances, was justified in terminating her services.
19. In my judgment, the above contention is devoid of merit. It is nobody's case that the petitioner has been dismissed from service for misconduct. An order of dismissal without following the principles of natural justice i.e. without issuing a show cause notice and without holding a departmental enquiry cannot, for a moment, be up-held. The said contention also deserves to be rejected.
20. The next ground on which the termination is sought to be justified is, that the post in question is a reserved post. The petitioner does not belong to the reserved category and hence she cannot claim to continue in the post. In any event, the petitioner did not re-apply for being appointed for the academic year 1987-88. Hence, there was no question of continuing her in service.
21. In my judgment, neither of the above grounds can justify the action of the college. The post in question was first reserved in 1982-83. Hence, under the hundred point roster the same stood dereserved at the time of the academic year of 1986-87. Hence, the said post was no longer reserved for the academic year 1987-88. Therefore, the petitioner could not be terminated on this ground.
22. So far as the petitioner's requirement to re-apply is concerned , in my view, the very action on the part of the college to treat the petitioner's services as purely temporary and for specified durations right from 1981 to 1987 cannot be justified. The college was not justified in artificially keeping the services of the petitioner as temporary. The action of the college in calling for fresh applications every year and thereby treating her services as temporary for a continuous period of six years cannot be upheld. In any case, the petitioner had not refused to apply without any rhyme or reason. The college called upon her to sign an approval form. In the form it described her as a `temporary lecturer' whose services were purely temporary and for a specific period. The petitioner protested against the recital contained in the approval form, and, in my view, rightly. The college desired that the petitioner should apply for the post as a fresh entrant and on such applications being made the college would consider appointing her again on purely temporary basis and for a specific period. Having put in six years service in the college the petitioner naturally protested. In the circumstances, she failed to apply again. In any case, since I am inclined to hold that her services did not come to an end at the end of each academic year, no question of the petitioner to reapply can arise. Hence, the order of termination on the above ground is not justified and the same is liable to be set aside.
23. What interests me most is the fact that after the services of the petitioner were terminated, the same were replaced by a fresh appointment. The fresh appointee does not belong to a reserved category and also does not possess the requisite educational qualifications. This fact virtually puts a death knell on all the arguments advanced by Mrs. Doshi in order to support the order of termination. If, as she has submitted, the petitioner did not hold the requisite educational qualifications, I could have understood if the incumbent had possessed the requisite qualifications. If, as she has put it, the post was reserved and the petitioner did not belong to the reserved category I could have understood if the new incumbent belongs to the reserved category. The management asked the lecturers to sign approval forms. The forms described the lecturers as purely temporary lecturers being appointed for specified period of time only. The petitioner declined to sign. The management proceeded to terminate the service of the petitioner. In the circumstances, I am inclined to hold that the action of the first respondent in terminating services of the petitioner is also malafide and deserves to be struck-down on this ground also. The fresh appointment, I am informed, is similarly made on `purely temporary basis' and is made subject to the result of the present petition. In the circumstances, I have no hesitation in holding that the petitioner has made good her claim to reinstatement with full back wages.
24. In the result, the petition succeeds. The impugned action of the respondent Nos. 1 and 2 in terminating the services of the petitioner with effect from the 20th of April, 1987, as also the impugned order passed by the College Tribunal on the 5th of February, 1988 are set aside. The respondents Nos. 1 and 2 are directed to reinstate the petitioner with effect from the 20th of April, 1987 with full back wages. The petitioner will be entitled to her increments only up to the period October, 1985, whereafter she will not be entitled to any further increments as provided in the circular No. 238 of 1983 dated the 16th of June, 1983. Rule absolute in the above terms. The petitioner will be entitled to the costs of this petition. On application made by Mrs. Doshi on behalf of respondent Nos. 1 and 2 my order is stayed for a period of four weeks from today.