ORAL JUDGMENT :- By this writ petition, petitioner No. I-Institution and petitioner No. 2 - its Principal, challenge the judgment delivered by the University and College Tribunal, Nagpur, on 29-10-1996 allowing the Appeal No. A-18 of 1996 filed by present respondent No.1 and quashing and setting aside his termination dated 6-9-1995 and ordering his reinstatement as a confirmed Peon. The Tribunal has also directed the petitioners to pay him all his emoluments from 7-10-1995 till the date of his joining. This Court has while admitting writ petition, granted stay and therefore respondent No. 1 is still out of employment.

2. Respondent No.1 joined the services as Peon on 1-4-1991 and it appears that he was appointed on probation in time scale up to 31-3-1993. He was also confirmed by issuing separate orders with effect from 10-4-1993 as per resolution passed in the meeting of Executive Body of the College. It appears that the petitioners were not receiving any grant-in-aid initially and the College was started in 1989. In fourth year, i.e. in the year 1993, they started receiving 25% of the grant. As respondent No.1 was about 38 years of his age on the date of appointment, he was overage and hence the petitioners moved Director of Education, Maharashtra State, Pune, for relaxation of age limit. On 30-8-1995, Senior Auditor, Higher Education, Amravati Division, Amravati, wrote to the Director of Higher Education, after conducting audit of College of petitioners and pointed out to him that appointment of respondent No.1 was not legal. On 6-91995, the petitioners issued an order of termination mentioning therein that respondent No. 1 was appointed on purely temporary basis and informed him that he would stand discontinued from 7-10-1995. This order was challenged by respondent No. 1 in the appeal as mentioned above. The College Tribunal after hearing both sides found that the petitioners appointed respondent No. 1 with full knowledge of his age and there is no concealment by respondent No.1 in this respect. The College Tribunal relied upon the judgment in the case of Union of India vs. M. Z. Qazi, reported at 1989 Mh.L.J. 134 = 1990(2) BCR 162 to hold that in such circumstances, the petitioners - management could not have been permitted to raise plea of age bar. It also relied upon another Hon'ble Apex Court judgment in the case of Shri Anadi Mukta Sadguru A. M. V. S. J. M. S. Trust vs. V. R. Rudani, reported at AIR 1989 SC 1607, to conclude that primarily it is the responsibility of management to pay salary of employees. In view of these rulings and findings, it allowed the appeal and granted respondent No. 1 reliefs as mentioned above.

3. I have heard Shri V. G. Wankhede, learned counsel for the petitioners and Shri Ghare, learned counsel for respondent No. 1. Nobody appears for respondent No.2.

4. Shri Wankhede, learned counsel contended that the moment it was shown that respondent No. 1 was overage, the College Tribunal ought to have seen that he had no right to post and therefore he could not have been given any relief of reinstatement. He contends that all appointments must be made in accordance with the provisions of law and when respondent No. 1 was found to be overage in view of Rule III (b)(1)(i) of the Standard Code, respondent No.1 could not have been given any relief by the College Tribunal. He contends that the theory of estoppel utilised by the College Tribunal in this respect is misconceived and there is no such estoppel in the matter. He further contends that the judgment of Division Bench of this Court in the case of Anna Manikrao Pethe vs. Presiding Officer, School Tribunal, reported at 1997(3) Mh.L.J. 697, is squarely applicable because the provisions applicable to colleges are more or less identical. He has also relied upon the judgment of Division Bench of Allahabad High Court in the case of Sushil Kumar Dwivedi vs. Basic Shiksha Adhikari, Banda, reported at 2003 Lab.I.C. 2732, to substantiate his contention.

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