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2019 Supreme(Bom) 836
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.M. BORDE, N.J. JAMADAR, JJ.
Dr. Agrawal Richa Assistant Professor at A, S & C Guru Nanak Khalsa College Matunga, Mumbai - Petitioner
Versus
The University of Mumbai University building, Fort, Mumbai through its Registrar and Ors - Respondent
Writ Petition No. 141 of 2017
Decided On : 06-06-2019
Advocate Appeared:
For the Petitioner: Mr.C.R. Sadasivan I/b Mr.N.M. Ganguli
For the Respondent: Mr.Rui Rodrigues, Mr.Manish Upadhye
Headnote:
Constitution of India, 1950 – Article 226 – Condonation of break – By this petition under Article 226 of the Constitution of India, the petitioner assails the action of the University of Mumbai, the respondent No.1, of rejecting a proposal for condonation of break in the petitioner’s service of 38 days. – Held, On a plain reading of the aforesaid stipulation, we are inclined to agree with the submission of Shri Rui Rodrigues, the learned counsel for the respondent No.1, that the petitioner’s case cannot be said to be one of a break accruing in service on account of no fault of the employee or on account of the circumstances, beyond the control of the employee. – On the contrary, there is a justifiable ground to hold that the termination of the services of the petitioner by her former employer was in the context of the conduct reflecting upon the efficiency of the petitioner to discharge the services satisfactorily. – The break in service, which accrued on account of the termination of the service of the petitioner, in these circumstances, cannot be said to be of a mere technical nature. – The respondent No.1 was thus justified in regulating its decision on the anvil of the aforesaid stipulation in the government resolution – It is more so for the reason that the challenge to the termination failed and attained finality – Court is of the considered view that the respondent No.1 had correctly applied the governing provisions to the facts of the case and justifiably exercised the authority not to condone the break in service. – Resultantly, the petitioner is not entitled to the relief in the nature of writ of mandamus directing the respondent No.1 to condone the break in service. – Petition Dismissed
N.J. JAMADAR, J.
1. Rule. Rule made returnable forthwith and, with the consent of the learned counsels for the parties, heard finally.
2. By this petition under Article 226 of the Constitution of India, the petitioner assails the action of the University of Mumbai, the respondent No.1, of rejecting a proposal for condonation of break in the petitioner’s service of 38 days.
3. The petition arises in the backdrop of the following facts :
The petitioner is a qualified lecturer. The petitioner was initially appointed, on the post of lecturer, at Rizvi College, Mumbai, after following due selection process, with effect from 10th June 2008, on probation, for a period of two years. The said appointment was then duly approved by the respondent No.1. Rizvi College, however, terminated the services of the petitioner. When the petitioner challenged the said order of termination before the College and University Tribunal, Mumbai, Rizvi College withdrew the said termination order, realising its unsustainability. However, the petitioner’s services were again terminated with effect from 6th June 2010. The petitioner assailed the said termination by preferring appeal No. 13 of 2010. In the meanwhile, the petitioner came to be appointed as lecturer with Guru Nanak College of A, S and C, Matunga respondent No.5, run by respondent No.4. In view of the subsequent development, the petitioner did not pursue appeal No.13 of 2010 for the purpose of reinstatement. The appeal came to be disposed of by order dated 14th November 2011.
4. The petitioner has since been confirmed in the post of Assistant Professor in the respondent No.4 institution. The petitioner became eligible for grant of placement benefits in the senior scale and selection grade. The petitioner, thus, applied for condonation of break in service of 38 days from 6th June 2010 to 13th July 2010, which was stated to be purely of a technical nature, through the respondent No.5. The respondent No.1, by communication dated 18th July 2016, conveyed to the respondent No.5 that the break in service was not condoned by the respondent No.1University as in terms of the government resolution dated 21st July 1983, the said break could not be condoned since the petitioner’s services were terminated by Rizvi College before completion of her probation period satisfactorily. The petitioner pursued the matter with the authorities by pointing out the governing government resolution and the legal position. However, vide communication dated 25th October 2016, the respondent No.1 informed the petitioner that the earlier communication dated 18th July 2016 (whereby the prayer to condone the break in service was rejected) stood unchanged. Hence, this petition.
5. The respondent No.1 has resisted the prayers by filing an affidavit in reply. The substance of the resistance putforth by the respondent No.1 is that the petitioner's services were terminated by her former employer-Rizvi College with effect from 6th June 2010 and the challenge mounted by the petitioner to the said termination by filing appeal No.13 of 2010 before the University Tribunal was unsuccessful. Consequently, the order of termination of the services of the petitioner by Rizvi College attained finality. As the petitioner did not pursue the prayer for reinstatement, the University Tribunal was persuaded not to grant even the monetary benefit for the said period. Banking upon a stipulation in the government resolution, dated 21st July 1983, which, interalia, incorporates the condition for condonation of break in service, it was asserted that since the services of the petitioner have been terminated on disciplinary ground, after following the prescribed procedure, the break in service cannot be condoned.
6. We have heard Shri C.R. Sadasivan, the learned counsel for the petitioner, Shri Rui A. Rodrigues, the learned counsel for the respondent No.1 and Shri Manish Upadhye, the learned AGP for the respondent Nos.2 and 3.
7. A strenuous effort was ma
