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2011 Supreme(Bom) 324
2011 (3) ALL MR 620
High Court of Judicature at Bombay
THE HONOURABLE MRS. JUSTICE NISHITA MHATRE
Rohidas Ganpat Godse
Versus
The Principal, G.B. Khare College, & Others
Writ Petition No. 6240 OF 2001
Decided on : 11-03-2011
For the Petitioner:Anita Agarwal, Advocate. For the Respondent:R1 to R3 - Sunanda Kumbhat, R4 - R.A. Rodrigue, Advocates.
Headnote:Constitution of India - Articles 226 and 227-Mumbai University Statute, Statute 417-Termination from service-Petitioner, a lecturer-Appointed on probation as a probationer-Selected by duly constituted Selection Committee under statute-Termination of service of petitioner without following procedure not sustainable-Liable to be set aside.-The petitioner’s appointment was made after he was selected by a duly constituted Selection Committee comprising the Vice-Chancellor, a subject expert nominated by the University, a representative of the B.C. Cell of the University and a representative of the Director of Higher Education. This selection committee obviously was a selection committee as envisaged under Statute 417 and not a local selection committee for filling any temporary vacancies. A local selection committee for filling any temporary vacancy comprises of (i) the Chairman of the Governing Body or his nominee, (ii) the Principal of the College, and (3) the Head of the Department of the College in the subject concerned or the senior-most teacher in the subject if there is no Head of the Department. Considering the constitution of the Selection Committee which selected the petitioner for appointment, it is evident that the petitioner’s selection was not on a temporary vacancy but as a probationer.
Constitution of India - Articles 226 and 227-Mumbai University Statute, Statute 418, Clause 2-Termination from service-On ground of unsatisfactory look and behaviour of petitioner a lecturer-Petitioner appointed on probation-His assessment report not maintained by Principal of College-Reports not sent to Chairman of Governing Body 2 months prior to expiry of period of probation-Petitioner entitled to reinstatement with back wages.-In the present case, there is no indication that the assessment reports of the petitioner were maintained by the Principal of the College nor is there any material placed on record to show that the Principal had sent to the Chairman of The Governing Body his assessment report with a definite recommendation, two months prior to the date of expiry of the period of probation.
The order impugned in the present case has been passed because the petitioner had not completed the NET/SET examination and had failed to achieve satisfactory standards of work. The termination of service of the petitioner is illegal as the respondent Nos. 1 and 2 were unable to establish that the petitioner’s behaviour and work were not up to the mark.
Constitution of India - Articles 226 and 227-State Government circular dated 20.2.1996- University circular dated 27.2.2001-Termination from service-As petitioner, a lecturer not passed NET/SET examination-As per circulars, services of lecturers who had not passed NET/SET examination, protected if they appointed between 19.1.1991 to 10.10.1999-Petitioner appointed during said period-His termination not sustainable-Liable to be set aside.-In the present case, admittedly, the petitioner had completed his M.Phil. degree only in 1997 although he was registered for the degree in 1994. However,, in view of the decision of the University dated 27.2.2002, the petitioner’s services would be protected as the University had, in consonance with the circular of the State Government issued on 20.2.1996, directed that those lecturers who had not completed their NET/SET examination should be continued in service if they had been appointed between 19.1.1991 and 11.10.1999. However, he would be entitled to increments only within the pay scale of Rs. 8000-13500 and not any other benefits like promotion, selection grade, etc. Therefore, in Court’s view, the submission that the petitioner’s service had to be terminated because he had not cleared the NET/SET examination cannot be accepted.
1. The challenge in this petition is to the judgment and order of the Mumbai University and College Tribunal dated 27.3.2001. By the impugned order, the Tribunal has dismissed the appeal preferred by the petitioner under Section 59 of the Maharashtra Universities Act, 1994.
2. On 10.12.1998, respondent Nos.1 and 2 i.e. the management of the college advertised the post of lecturer in Accountancy. The petitioner being qualified with M.Com., M.Phil. and G.D.C. & A. degrees, applied for this post. He was selected by duly constituted Selection Committee and joined service with the management on 6.2.1999. He was informed that the formal appointment order would be issued to him later. The petitioner noticed that the management was indulging in the malpractice of releasing payment of only 50% of the salary payable to the teaching staff although their signatures were obtained on documents indicate that they had received the full salary. On a demand by the management, the petitioner submitted a duplicate pass-book to it.
3. The petitioner was issued an order terminating his services on 1.1.2001. Consequently, he preferred Appeal No. 1 of 2001 before the Mumbai University and College Tribunal (in short, the Tribunal) on 10.1.2001 challenging the order of termination issued to him. That appeal was dismissed on 27.3.2001 by the Tribunal concluding that the management had established that the work and behaviour of the petitioner was not satisfactory. It was held that the petitioner was appointed on a temporary basis and, therefore, could have been terminated from service on appraisal of his work which was found to be unsatisfactory.
4. Ms Agarwal appearing for the petitioner, submitted that the order of termination issued to the petitioner was illegal and unjustified. She submitted that the order was stigmatic as the management had stated in the order of termination that the petitioner’s work and behaviour had not been found satisfactory. She pointed out that the petitioner had undergone a selection process and was in fact entitled to permanent employment. She submitted that the management had failed to follow the procedure detailed in the Act for assessment of reports or work of the petitioner. According to the learned advocate, the failure on the part of the management to comply with the requirement of maintaining assessment reports in consonance with the provisions of the statute has vitally prejudiced the petitioner. She urged therefore that the services of the petitioner could not have been terminated on the ground that his work was not satisfactory without such assessment reports. Mrs.Agarwal buttress this argument by relying on the judgment in the case of Vanmala S. Aney v/s National Education Society, reported in 1982 Mah.L.J. 403. She further drew my attention to the fact that the assessment of the petitioner’s work was carried out by an outsider i.e. respondent No.3 herein when that was not the procedure prescribed under law. Apart from this, Mrs.Agarwal submitted that there was no material on record to show that the behaviour of the petitioner had not been satisfactory and, therefore, the management could not have terminated the services of the petitioner in the manner that it had. She further submitted that it was only because the petitioner had complained against the misdeeds of the management in directing the teaching staff to sign on registers/vouchers indicating that they had received full payment of their salary when in fact the management had paid only half the salary.
5. Ms Kumbhat for the management submitted that it had acted by following the due process of law while terminating the services of the petitioner. She submitted that the petitioner was only a temporary employee and, therefore, could have been terminated from service at any point of time. According to her, requisite steps as envisaged under the Act had been taken while terminating the petitioner’s services and, therefore, this Court should not int
