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Bombay High Court
(DECEMBER 6, 2004)
UNIVERSITY OF MUMBAI
Versus
NEELA BANE
Maharashtra Non-Agricultural Universities and Affiliated Colleges Standard Code Rules, 1984 - Rule 4 - Appointment - Procedure for recruitment - By selection or nomination - A daughter of University employee appointed in accordance with circular dated 17.4.1994 and 19.6.1995 temporary basis - Not appointed in terms of Rule 4 - Tribunal wrongly held that appointment on regular basis and directed her reinstatement in service - Order not sustainable - Set aside. - For a person to be considered in regular employment the requirement would be that there must be a regular post available, that post must be filled in by the recruitment rules in force and by a committee as constituted in terms of the Rules. It is only when all those requirements are met can the appointment of a person be said to be regular. In the instant case from reference to the circulars of 17th April, 1994 and 19th June,1995 it would be clear that they are for appointment on continuous temporary basis. The circular restricted and/or conferred selection only to sons and daughters of the University employee, the persons who had worked on temporary basis in the University or persons who are presently working on temporary basis in the University who have already registered their names with the Employment Exchange. In the matters of public employment every authority who satisfies the test of State or other authority within the meaning of Article 12 of the Constitution of India must satisfy the requirement of Articles 14 and 16. Public employment cannot be restricted to a particular class of persons unless they fall in the categories which are constitutionally permissible. Otherwise all eligible must be entitled to apply and to be considered. The University is bound by the Maharashtra Non-Agricultural Universities and Affiliated Colleges Standard Code (Terms and Conditions of Service of Non-Teaching Employees) Rules, 1984. These Rules have been made in exercise of the powers conferred under Section 77-A of the University Act including the Bombay University. Rule 3(III) Ministerial and Technical posts including in Class III. The procedure for selection to the post is also set out in Rule 4 which provides that all appointments which are required to be made by nominations or by selection shall be advertised in atleast two daily newspapers, one of which shall be a Marathi newspaper indicating the minimum academic or other technical qualifications if any, experience required, pay scale and total emoluments admissible for the post, and the reasonable period (which shall not be less than 2 weeks from the date of publication of the advertisement in the newspapers) within which the candidates are required to submit their applications. Simultaneously these vacancies shall also be notified to the concerned Employment Exchanges and the concerned District Social Welfare Officers. The appointment to the junior post including the junior clerks, clerks and clerk-cum-typist are to be by selection. Once that be the case the petitioner University had to comply with the mandate of Rule 4 to make regular appointment. In the instant case it is clear, therefore that the appointment was not made in terms of Rule 4. Once the appointment was not made in terms of Rule 4 it was not open to the respondent No. 1 to contend that she was appointed on regular basis or for that matter for the Tribunal to proceed on the footing that the appointment was on regular basis and directed reinstatement.
F. I. REBELLO, J.
( 1 ) THE petitioner by the present petition has impugned the judgment dated 6th September, 2002 passed by the Mumbai university College Tribunal in Appeal No. 75 of 2001 preferred by a member of the non-teaching staff under section 59 of the Maharashtra Universities Act, 1994. The Appeal was preferred to challenge the order dated 30th September, 2000 and 31st August, 2001 under which the respondent No. 1s services were sought to be brought to an end by the University.
( 2 ) THERE is no dispute that the Respondent No. 1 continued to be the employment of the University pursuant to various orders which came to be passed from time to time ordinarily for a period of 3 months from 1st October, 1997. On some occasions there were longer periods and on some occasion shorter period than 3 months. By the order of 30th September, 2000 the respondent No. 1 was informed that in pursuance of the resolution of the management Council at its meeting held on 29th September, 2000 her services have been discontinued with immediate effect i. e. from 30th September, 2000. 2a. The respondent No. 1 filed a complaint before the Industrial Court which passed an interim order on 4th October, 2000 which had the effect of allowing the respondent No. 1 to continue in service and report for duty. The petitioner University then raised an objection as to the jurisdiction of the industrial Court to entertain the complaint. That objection was upheld. However, though the ad-interim order was vacated on 21st August, 2001 a direction was issued to maintain status quo until the Respondent No. 1 received copy of the order passed by the Industrial Court. The copy was made available on 31st august, 2001. The University by their letter of 31st August, 2001 again discontinued the services of the respondent No. 1 on the ground that there was no stay from the Court of Competent jurisdiction. It is thereafter that the respondent no. 1 herein preferred an Appeal before the University and College Tribunal. It was the contention of the respondent No. 1 that her father was employed with the petitioners and he retired on 31st July, 1990. It was further contended that it was the practice of the petitioners to appoint son or daughter of the employees who were retiring and to that effect had issued various circulars. The respondent No. 1 contended that her work was satisfactory and no memo or orders were issued to her. As and when required the respondent No. 1 did O. T. and extra work to meet the exigencies. Despite all that the petitioner was not paying the salary as per the prescribed scale and other allowances. There are some other grievance as set out which need not for the time being, gone into. In fact she made various representations to be regularised. Instead of being regularised the respondent no. 1 was informed that her services will be discontinued. She challenged the order of termination as being mala fide, arbitrary, illegal and contrary to the provisions of law. It was also her case that similarly situated employees filed writ Petition No. 1844 of 1994 in which the petitioner herein had filed consent terms and absorbed the said four employees and regularised their services. She, therefore, prayed that the orders of termination be set aside and she be reinstated. The petitioner University filed their reply. It was contended therein that when the University required the employees on permanent basis they have to send a proposal to the State Government and unless the Government sanctions the post no permanent appointment can be made. There are restrictions imposed on the petitioners by section 8 of the Maharashtra University Act, 1994. In order to meet contingencies and with a view to complete the examination process and the allied work incidental thereto within the restricted period, the petitioner had to employ some employees on ad hoc basis. Such appointments are required to be made and the Management Council of the University under its author
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