The continuous advertisement of a reserved post for a specified period without a response from reserved category candidates entitles the appointed candidate to de-reservation and service benefits as per relevant Government Resolutions.

JUDGMENT :

G.A. Sanap, J.

1. In this petition, the petitioner has prayed for quashing and setting aside the order dated 6th August, 2011 passed by respondent No. 1, whereby the proposal for de-reservation of the post to which the petitioner was appointed came to be rejected and for a declaration that service of the petitioner as a “Lecturer” in Botany may be confirmed from the date of her initial appointment. The facts are as follows.

2. The petitioner was initially appointed as a Lecturer by respondent No. 5 at respondent No. 6-College on a temporary basis for the period from 29th November, 1990 to 20th April, 1991. The post to which the petitioner was appointed was a reserved post. Before appointment of the petitioner as a Lecturer, since 1985 every year the said reserved post was advertised for more than five years by 1990. The reserved category candidate had not responded to the advertisements and, therefore, the same post could not be filled in.

3. The petitioner after initial appointment was continued for academic years 1991-1992 and 1992-1993. Despite advertisements, as respondent No. 5 did not get the candidate from the reserved category, appointment of the petitioner was continued every year on temporary basis. It is alleged that on 26th July, 1993, respondent No. 5 did not allow the petitioner to joint the duty. The petitioner, therefore, approached the College Tribunal, Mumbai. The College Tribunal, Mumbai during pendency of the appeal, allowed the petitioner to report on duty. The College Tribunal dismissed the appeal on 30th March, 1995. However, the College Tribunal continued stay till re-opening of the College for the academic session 1995-1996.

4. The petitioner by filing the Writ Petition in this Court challenged the order of the College Tribunal. This Court continued the interim relief granted by the College Tribunal during pendency of the petition. The petition came to be disposed of on 11th January, 2010. This Court issued directions to the respondents to commence and complete the procedure for de-reservation of her post on or before 31st July, 2010. This Court continued interim relief till communication of the decision taken by the respondents pursuant to the order in the writ petition.

5. It is the case of the petitioner that she made an application to the University for de-reservation of the post occupied by her. The University made recommendation to the Joint Director i.e. respondent No. 2 for de-reservation of the post. The stay was in operation. The petitioner continued to work as a Lecturer. After filing the Contempt Petition by the petitioner on 6th August, 2011, respondent No. 2 rejected the proposal for de-reservation of the post occupied by the petitioner. It is the case of the petitioner that the post was advertised every year for a continuous period of five years. The petitioner is, therefore, entitled to get the benefit of the Government Resolution dated 29th September, 1986 and also the Government Resolution dated 25th January, 1990. The petitioner is entitled to get continuation and all the service benefits from 25th August, 1990.

6. One Dr. Babasaheb Bhimrao Kadam filed affidavit on behalf of respondents No. 1 to 3 and opposed the claim. Respondents No. 1 to 3 have not denied the qualification, eligibility and appointment of the petitioner. However, it is the case of the respondents No. 1 to 3 that the petitioner is not entitled to avail the benefits of the Government Resolutions. Appointment of the petitioner was temporary. Appointment was made on 23rd December, 1990 by a Local Selection Committee. There was no clear vacancy. In order to get the benefit of de-reservation and continuity of the service, the appointment must be on the clear and vacant post. The appointment was temporary and on year to year basis. The case of the petitioner was not accepted by the College Tribunal.

7. It is the case of respondents No. 1 to 3 that respondents No. 4 and 5 did not make efforts to fill the reserved post b