WRIT PETITION 2170/2001 on 3 July 1999

ORAL JUDGMENT :-

By way of present petition, the petitioner challenges the judgment and order dated 1[st] November, 2001, in Appeal No. SRT MU/14/2001, passed by the learned Presiding Officer, University and College Tribunal, Aurangabad and the consequential termination notice dated 7[th] December, 2009, tereminating the services of the petitioner w.e.f. 7/1/2002.

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This court, vide order dated 4/1/2002 had directed status-quo and vide order dated 8/1/2002, Rule and Interim relief in terms of prayer clauses (C) and (D) was granted.

2]Facts in brief, giving rise to the present petition are as under :- The respondent No.1 had published an advertisement for the post of Data Operators and other non teaching posts on 1[st] April, 1999. The post of Data Operator was reserved for Scheduled Caste/Scheduled Tribe category. However, the said advertisement specified that in case a candidate belonging to Scheduled Caste/Scheduled Tribe was not available, a candidate from other category would be considered for selection.

3]The respondent No.2 who belongs to OBC category applied for the said post. On 7/6/1999, the written test of the respondent No.2 was conducted by the respondent No.1,in which he qualified. On 21/6/1999, the practical test was conducted in which also the respondent No.2 was qualified. Accordingly, the respondent No.2 was called for interview on 25/9/1999. Since the respondent No.2 was successful, he was given appointment order on probation for a period of 2 years on 3rd July 1999. The respondent No.2 who was employed with M/s. Jamshri Ranjitsinghji Spinning and Weaving Company, resigned the said job and joined the respondent No.1. It appears that there was a complaint that the respondent No.2 was related to one Shri S.K. Mali, Assistant Registrar. On the basis of the said complaint and the report of the Committee, the order dated 3rd July 2009 came to be modified and by modified order dated 27/11/1999, instead of probation, the petitioner came to be appointed on temporary basis. Being aggrieved thereby, the respondent No.2 approached the Grievance Redressal Committee. The said Committee vide order dated 28th May 2000, directed that the respondent No.2 should not be terminated and he should be adjusted in future against the post from his category. The said decision of the Grievance Committee was duly approved by the Management Council vide order dated 29th May 2000. However, the respondent No.2 was terminated on 10th July 2000.

.The respondent No.1 thereafter advertised the post of Data Operator for Scheduled Caste category on 3[rd] December, 2000. In the meanwhile, the respondent No.2 had approached the learned School Tribunal, vide appeal No. SRTMU No.11/2000. The learned Tribunal, vide judgment and order dated 23[rd] November, 2000, allowed the appeal and quashed and set aside the order of termination. In pursuance to the order passed by the learned School Tribunal the respondent No.2 joined the services on 27[th] November, 2000.

4]It appears that in the meantime, on the basis of the advertisement for the post of Data Operator, issued on 3[rd] November, 2000, the process of selection was conducted and the petitioner came to be appointed on 6[th ]May, 2000.

5]On the appointment of the petitioner, the services of the respondent No.2 came to be terminated on the same day i.e. 6/6/2001. It further appears that the respondent No.2 in the mean time, had filed W.P. No. 2170/2001 challenging the advertisement. As such, the petitioner was informed that his appointment is subject to the decision of the writ petition filed by the respondent NO.2. An undertaking to that effect was also obtained from him.

6]Being aggrieved by the communication dated 6/6/2001, the respondent No.2 preferred an appeal bearing SRTMU No.14/2001. By judgment and order dated 1[st] November, 2001, the learned Tribunal allowed the appeal. The respondent No.2 joined the services on 5[th] November, 2001 in pursuance to the judgment and order passed by the learned School Tribunal. In pursuance to the judgment and order passed by the learned Tribunal, the petitioner was served with a notice dated 7/12/2001, terminating his services w.e.f. 7[th ]January, 2001. Thereafter, the present petition has been filed by the petitioner before this court and the orders as aforesaid have been passed.

7]Again, services of the respondent No.2 came to be terminated on 31/1/2002.

In another set of proceedings, the order passed by the learned Single Judge was challenged by the respondent NO.2 in LPA. Vide order dated 22[nd] April, 2002, passed in Civil Application NO. 201 of 2002 in LPA No. 14/2002, an interim order was passed, staying the termination of the respondent No.2. The respondent NO.2, therefore, joined the services of the respondent No.1, on 6[th] May, 2002.

9]However, the said LPA subsequently came to be dismissed on 16[th] April, 2007, as a consequence of which, the services of the respondent No.2 were again terminated.

It is submitted on behalf of the petitioner that the judgment and order impugned herein almost amounted to review of the earlier order passed by the learned School Tribunal dated 23[rd] November, 2000. It is, therefore, submitted that the impugned order is not sustainable in law.

11]On the contrary, learned counsel for the respondent No.2 submits that the appointment of the respondent No.2 was after following the due process. It is submitted that the grievance redressal committee had also decided to continue the respondent No.2 and adjust him in a future vacancy that would be available for the OBC category and fulfill the reservation of Scheduled Caste/Scheduled Tribe in future. It is submitted that not only that but the Management council had also approved the said decision. It is, therefore, submitted that the judgment and order passed by the learned School Tribunal warrants no interference.

12]It can thus be seen that the present petition arises out of the peculiar circumstances. One more thing that needs to be noted is that during the pendency of the present petition, the petitioner was selected and appointed on the post of Superintendent/Section Officer at Bombay Engineering College on 21[st] May, 2009. The petitioner has been relieved by the respondent No.1 sanctioning lien for a period of 6 months, which came to be subsequently extended for a further period of 18 months vide order dated 15/1/2009.

13]From the perusal of the record, it could be seen that the appointment of the petitioner was on a post reserved for Scheduled Caste/Scheduled Tribe. Though the advertisement dated 3/11/2000 was challenged before this court, there was no stay to the recruitment process and as such, the petitioner came to be selected and appointed after following the due selection process. If on account of some internal procedural aspects of the respondent No.1, the respondent No.2 was not continued, the petitioner can not be faulted for the same. When his appointment was on a post reserved for scheduled caste category and he was the only candidate found eligible in the selection process and duly appointed, he could not be deprived of his appointment merely because the administration in the respondent No.1 had not followed the decision of the Grievance Redressal Committee, which was duly approved by the Management Council. It was tried to be suggested by the respondent No.2 that the petitioner is not interested in the job. However, the learned counsel for the petitioner, on instructions categorically states that the petitioner is interested in continuing with the job and would join the services after giving due notice to the Veterinary College, where, he has been selected and joined. In that view of the matter, I find that the impugned judgment and order, consequent upon which, the termination of the petitioner has taken place, will have to be set aside.

However, at the same time, it can also be seen that for no fault on his part, the respondent No.2 has been deprived of his appointment which was also made after following the due selection process. The respondent No.2 was appointed on 3[rd] July, 1999, in pursuance to the selection process conducted as per the advertisement dated 1/4/1999. The respondent No.2 had qualified in the written test, practical test and oral interview. It is further to be noted that in the advertisement dated 1[st] April, 1999 itself, it is stated that if the candidate from the SC/ST category was not available, a candidate from other category, would be considered for selection.Since the candidate from SC/ST category was not available, the petitioner came to be appointed. Not only this, but there was a note prepared by the Registrar and put up before the Vice Chancellor prior to the selection of the petitioner that the respondent No.2 should be appointed and the backlog should be filled in future. It is further to be noted that the Grievance Redressal Committee, vide decision dated 20[th] May, 2000, had recommended that the services of the respondent No.2 should not be terminated and he should be continued against a future post that may be available from his category and that, in so far as the reserved seat of SC/ST category is concerned, the

same be filled in future. The Management Council had also accepted the recommendations of the said committee dated 29/5/2000, which decision is final under the provisions of Section 57(2) of the Maharashtra Universities Act, 1994. It could thus be seen that the respondent No.2 who was duly selected, would have continued, had the recommendations of the Grievance Committee which culminated in the decision of the Management Council would have been implemented. However, it appears that unfortunately, another advertisement came to be published in the interregnum and in the present selection process, the petitioner was appointed. It is further to be noted that subsequently, in view of the interim orders passed in the LPA, the respondent No.2 was again appointed and continued to be in the employment till the dismissal of the LPA.

14]It could thus clearly be seen that the respondent No.2 continued in the services of the respondent No.1 between 3/7/1999 till 6/6/2001 and thereafter between 6[th] May, 2002 and 18[th] April, 2007. It is further to be noted that the State of Maharashtra has sanctioned the staffing pattern for the respondent No.1 vide Govt. Resolution dated 6[th] July, 2009, wherein, 7 posts of Data Operator have been sanctioned. A copy of the Government Resolution is placed on record alongwith C.A. No. 12728/2009. In the peculiar circumstances, I find that the respondent No.2 was appointed after following the selection process and that the Grievance Redressal Committee and the Management Committee had decided to continue him against a post available in future for OBC Category and that he continued to be in service initially for a period of 2 years and thereafter for a period of 5 years. I find that considering the equities, he needs to be absorbed in one of the posts, out of the 7 posts of Data Operator, sanctioned for the respondent No.1 University. The learned counsel for the respondent No.2 had stated that he would not claim any continuity in service for the services already rendered by him. In that view of the matter, in my view, the following order would meet the ends of justice.

15]The writ petition is allowed in terms of prayer clauses (A) and (B). However, in view of the peculiar facts and circumstances narrated in the foregoing paragraphs, it is directed that the respondent No.1 shall appoint the respondent No.2 on the post of Data Operator against one of the 7 posts, which are sanctioned by the State Government in the respondent No.1 University. It is, however, made clear that the appointment of the respondent No.2 shall be a fresh appointment and he shall not be entitled to any continuity on account of resumption of service with the respondent No.1.

grt/

[B.R. GAVAI, J.]