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IN THE HIGH COURT OF BOMBAY
G.H. Guttal V.V. Kamat, JJ.
Geeta Bhaskar Pendse (Mrs.).... Petitioner.
Versus
Principal, Ayurved College Sion others.... Respondents.
Writ Petition No. 1944 of 1987, decided on 10-4-1990.
Advocates appeared :
R.S. Apte, for petitioner.
S.B. Dhonde, for respondents 1 and 2.
V.P. Malavankar, A.G.P., for respondents Nos. 4 5.
Radhakrishnan, for respondent No. 3.
Section 11 (6) (b)-Break in service during summer vacation-Lecturer appointed temporarily but on permanent post- Management giving breaks In service during summer vacation-Continued appointment can be interrupted only under the rules which are on ground of unsatisfactory performance or unavailability of teacher- Held, thus contrived ad hoc appointment to evade relevant roles can not be construed as break in service.
Where a candidate like the petitioner is available in the 2nd and 3rd years, no outsider belonging to non-backward classes can be considered for appointment in the second and third years. This is a clear Indication that a teacher belonging to the non-backward category holding the post in the first year continues in the second and third years. This clain of appointment may be broken in two contingencies;
(i) the candidate who held the post in the first year is not available in the second year
OR
(ii) her services were terminated for unsatisfactory performance.
In other words, the right to continued appointment recognised by the University is not considered to have been interrupted unless one of the two events set out above occur. Therefore, it follows that a teacher once appointed in the first years is intended to be continuously appointed unless her services have been terminated for unsatisfactory performance. The words "for unsatisfactory performance" have been deliberately used. They exclude the caees of termination for any other reason like saving expenses of salary for the period of vacations. The termination of employment for unsatisfactory performance or unavailablity of the teacher are the only factors which are considered to interrupt the continued appointment.
Ratanlal and others v. State of Haryana and others, (1985) 4 Supreme Court Cases 43, was a case of break in services effected so as to deny the employees the salary for the summer vacation and other benefits to which regular teachers are entitled. The Supreme Court characterised the practice of such ad hoc appointment as pernicious". Court has no doubt that such a policy followed by the respondent Nos. I and 2 is not only pernicious, but it also contrary to the plain intendment of the Rules. The University had laid down the rules, so that a teacher who completes two year service becomes a permanent teacher. The respondents Nos. I and 2 by resorting to the unreasonable and arbitrary practice, have attempted to escape the consequence of the rules. Court deprecates this practice.
2. The admitted facts may be, briefly, set out :
Pursuant to the advertisement dated 13th October, 1983, and after interviewing the petitioner, the respondents Nos. 1 2 appointed her as lecturer in Sanskrit. She worked from 19-3-1984 to 30-4-1984, as her appointment was specifically for this duration. A second advertisement was published on 12-11-1983 for the year 1984-85 inviting applications for the post of lecturer in Sanskrit. In 1984-85, the petitioner was once again interviewed selected and appointed for this post where she worked from 21-8-1984 to 19-4-1985. Pursuant to a third advertisement dated 28th April, 1984, the petitioner was once again appointed from 10-7-1985 to 30-4-1986. During all these three years, the petitioner worked in the college of the respondents Nos. 1 2. She did not have in her favour any order of appointment for the duration of the summer vacations (a) from 1-5-1984 to 20-8-1984, and (b) 20-4-1985 to 9-7-85. The vacancy continued to exist even after 1-5-986. However, instead of continuing the petitioner, the respondents Nos. 1 2 appointed the respondent No. 6 as lecturer in Sanskrit in the post occupied by the petitioner.
One more fact needs to be stated. The initial appointment of the petitioner was in a clear permanent vacancy of lecturer in Sanskrit. But the vacancy was reserved for the candidates from the Scheduled Castes and Scheduled Tribes. No candidates applied for the post in response to any of the three advertisements. That is why the petitioner was appointed during the second and third years also. The Scheduled Castes and Scheduled Tribes are in this judgment referred to "backward class". The petitioner and respondent No. 6 belong to the "non-backward" classes.
3. A significant fact established before the Tribunal is that the petitioner was held entitled to the salary as Lecturer in Sanskrit for the Summer Vacations of the academic year 1984-85 and 1985-86. The Summer vacations of the academic year 1984-85 means the months of May and June 1985. Similarly, the summer vacation for the year 1985-86 means the months of May and June 1986.
The petitioner by virtue of the finding of the Tribunal received the salary for the months of May and June 1985. The finding of the Tribunal has not been challenged before us by any respondents. Therefore, it cannot be said that in May and June 1985 she was not employed as lecturer in Sanskrit.
4. The petitioner's case rests on the resolutions and directives of the State of Maharashtra and the University of Bombay. Therefore, it is necessary to set out these directives.
On 8-5-1982, the Vice Chancellor of the University of Bombay, in exercise of his powers under section 11(6)(b) of Bombay University Act, issued directives to the affiliated colleges in regard to the reservation of posts for candidates from the Scheduled Castes and Scheduled Tribes. These directives lay down the course to be followed where the candidates belonging to the backward classes are not available. Clause (3)(b) of the directive, in so far as is relevant, reads :
"Even after readvertising the posts three times, if suitable candidates belonging to Backward Classes do not become available, they may be filed in by candidates belonging to the open category".
Meanwhile, on 29th September, 1986, the Government of Maharashtra, Education and Employment Department, issued an order on th
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