2002(1) ALL MR 854
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
R.M.S. KHANDEPARKAR, J.
Dayanand Education Society, Latur & Anr Vs. Bhagwan S/O Babshetty Patil & Anr.
Writ Petition No.57 of 2000
17th August, 2001
Petitioner Counsel: Shri. S. R. BARLINGE
Respondent Counsel: Shri. S. B. TALEKAR
Marathwada University Act (1974), Ss.2(6), 42 - University Statutes - Statute 218(B)(2) - Appointment of teacher on probation - Suitability of probationer can be assessed in terms of Statute 219 Cl.3 - His service terminated without following procedure - Services of petitioner stated to be not satisfactory merely by whims and fancies - University and College Tribunal after considering law and facts setting aside order of termination and holding that petitioner was entitled to continue in service - Order does not require interference. (Paras 7,9)
2. The petitioners challenge the judgment and order dated 13th October, 1999 passed by the Presiding Officer, University and College Tribunal Aurangabad in Appeal No. SRTMU/06/99. By the impugned order, the appeal filed by the respondent No.1 against the order of termination of his services dated 13-3-1999 has been allowed and the said order has been quashed and set aside and further the respondent No.1 is held to be entitled to continue to be in service subject to conditions as may be imposed by the University and further subject to condition of passing of NET/SET examination in accordance with the provisions of law. The petitioners have been directed to pay the arrears of the salary of the respondent No.1 from 16th April, 1999 onwards.
3. The petitioner No.1 is the institution registered under the Societies Registration Act 1860 and also under the Bombay Public Trusts Act 1950. It runs a Law College at Latur. Pursuant to the selection of the respondent No.1 by the Selection Committee in its meeting, held on 17th June, 1998, respondent No.1 came to be appointed as the lecturer in the said college by letter of appointment dated 17th June, 1998. The appointment of the respondent No.1 was duly approved by the Swami Ramanand Teerth Marathwada University Nanded vide its letter dated 9-9-1998. By letter dated 13-3-1999, the respondent No.1 was informed by the petitioners that his services in the said college as Lecturer in Law would stand terminated with effect from 15th of April 1999. Being aggrieved the respondent No.1 preferred an appeal bearing No.SRTMU/06/99 before the University and College Tribunal at Aurangabad and the same was allowed by the impugned Judgment.
4. It is the contention of the petitioners that the appointment of the respondent No.1 was made for a fixed period of one year 1998-99 as he had not passed NET/SET examination and the approval by the University of his appointment was also for one academic year. It is also the contention of petitioners that the service rendered by the respondent No.1 during the said period of one year was not satisfactory and even assuming that he was on probation, nothing prevented the petitioner from terminating his services on expiry of the probation period of one year. On the other hand, it is the case of the respondent No.1 that he was selected by following the due process of law as applicable to the petitioner's college and in a clear vacancy; that he was appointed on probation initially for one year in view of the provisions contained in Government Resolution dated 22nd December, 1995 to enable the respondent No.1 to obtain necessary NET/SET qualifications; the action on the part of the petitioners in seeking termination of the services of the respondent No.1 abruptly after one year is arbitrary and clearly discriminatory as compared to treatment given to another person by name Girish V. S. Keshava Pillai who was also selected and appointed initially for one year along with the respondent No.1 in the same manner as respondent No.1 was selected and appointed.
5. Upon hearing the learned advocates and on perusal of record it is seen that, the institution of the petitioner is governed by the Marathwada University Act 1974 in the matter of appointment of lecturers as well as pertaining to service conditions of such lecturers. It is not in dispute that the college run by the petitioners wherein respondent No.1 was appointed is the college within the meaning of the said expression under section 2(6) of the said Act. Under section 42 of the said Act, the Senate of the University is empowered to make Statutes to provide for the various matters enumerated therein in relation to the teachers and other employees in affiliated colleges and recognized institutions, other than those managed and maintained by the State Government or the University and such matters include the qualifications required for different posts, except those of teachers, the manner and mode of selection and appointment of Principals and Teachers, a reasonable period of probation and confirmation in respect of permanent posts, the duties to be performed and the workload to be assigned to each category of posts, security of service, all disciplinary matters, including the procedure to be followed by the management for holding enquiries, except where an employee is convicted on a criminal charge involved in moral turpitude; the pay, allowances and other benefits, including post retirement benefits and other conditions of services. Accordingly, the Senate has framed various Statutes under the said section 42 in relation to the terms and conditions of the service of teachers appointed by the affiliated colleges and the same provides for mode of recruitment of teachers in affiliated colleges, constitution of selection committee and selection of candidates, procedure to be followed in the matters of appointments and filling up vacancies, permanent as well as temporary, details regarding probation period, seniority, assessment of teacher's work etc. etc. The Statute No.219 (A) pertains to the recruitment of Teachers and Principals of colleges affiliated to the University and thereunder in clause (1) provisions made in relation to the constitution of the selection committee. Clause (2) deals with the procedure to be followed in the matter of appointment. Sub-clause (d) of clause (2) provides that the selection committee shall interview and adjudge the merits of each candidate in accordance with the qualification advertised and recommend to the Vice Chancellor the names arranged in order of merit of the persons, if any, whom it recommends for appointment to the post advertised giving reasons for the order of preference. It further provides that if no person is selected, a report to that effect will have to be made. At the same time the committee will have right to recommend only one name if others are not found suitable for inclusion in the recommended panel. The recommendations of the committee shall be subject to the approval of the vice Chancellor. Clause (e) provides that the Governing Body shall appoint, from amongst the persons in the order recommended by the selection committee and approved by the Vice Chancellor the Principal or the number of teachers required to fill in the posts advertised. Statute No.219(B) deals with the matter pertaining to the probation period. Clause (1) thereof provides that a Principal or a teacher shall, subject to the procedure prescribed for selection and appointment, be appointed in the first instance on probation which in no case shall exceed 24 months from the date he joins his duties at the end of which he shall be confirmed or his service shall be dispensed with. In either case the decision shall be communicated to the teacher in writing, as the case may be. It will not be necessary to assign any reasons for terminating the services of a teacher on probation if it is held that he has not completed his probation satisfactorily. Clause (2), (3) and (4) provide for method of assessment regarding suitability of the teacher or probation in relation to a permanent appointment. Clause (2) provides that the Governing Body shall assess the suitability of teachers for permanent appointments before the expiry of the period of probation on the basis of the assessment reports maintained by the Principal in case of teachers and Governing Body in case of a Principal in accordance with Statute 219(B)(3). It further provides that a teacher or a Principal shall be deemed to have been confirmed after the expiry of the period if he has not been communicated anything contrary to that effect. Clause (3) speaks of procedure as to how the suitability of the teacher during the probation period is to be assessed and clause (4) speaks of maintenance of report in respect thereof as well as consideration of same by the Governing Body.
6. Apparently, therefore, elaborate provisions are found to have been made in the said Act and the Statutes made thereunder in relation to the service conditions of the teachers appointed in the colleges like the one run by the petitioners herein and, therefore, such teachers as regards their service conditions are clearly governed by those provisions.
7. The appointment letter issued in favour of the respondent No.1 by the petitioners on 17-6-1998 does refer to the appointment of the respondent No.1 being a purely temporary for the academic year 1998-99. But, at the same time, it makes it clear that the services of the respondent No.1 are to be governed by Swami Ramanand Teerth Marathwada University Nanded and other provisions of law applicable to the petitioner institution. It also specified that his pay scale shall be Rs.2200-75-2800-100-4000 and other allowances as per Government rules. It further specifies that he shall be on probation for a period of one year. It is also a matter of record that the respondent No.1 was selected by a duly constituted selection committee for the purpose of filling a permanent vacancy for the post of lecturer in the institution of the petitioner and pursuant to the interviews held by such selection committee, the respondent No.1 was selected as the best candidate among those who were interviewed by the selection committee. Once a candidate is selected for the post of lecturer in the college governed by the said Act and the Statutes made thereunder to fill up a permanent vacancy in lecturer's post and he was issued a letter of appointment for the same after his selection by the duly constituted selection committee, such appointment letter on the face of it discloses the appointment being on probation, it is not permissible for the institution to ignore the provisions of law contained in the said Act and the Statutes made thereunder and to act contrary to the dictates of the said provisions of law. Statute No.219(B) clearly specifies that the person appointed on probation, the services of such person can be put to an end if the same are found to be unsatisfactory. No doubt, in case of misconduct there is no prohibition for taking action even against an employee appointed on probation. However, dehors such penal action, the period of probation governed by the provisions of the said Act and the Statutes made thereunder cannot be denied right to continue in service except by following the procedure prescribed under the said Act and the Statutes made thereunder. Statute No.219(B)(2) clearly provides that the suitability of the teacher on probation can be assessed as provided under clause (3) thereof and after evaluation thereof by the Governing Body. It is not in dispute in the case in hand that, the petitioners have not followed the said procedure. It is true that a faint attempt was made on behalf of the petitioners in reply to the letter of the University objecting to the conduct on the part of the petitioners in not forwarding the proposal of the respondents No.1 for renewal after the expiry of one year contending that the services of the respondent No.1 were not satisfactory, nevertheless, the petitioners were not able to produce any material either before the tribunal or this Court disclosing any assessment of the suitability of the respondent No.1 having been done by the Governing Body as required under the said Statute and having been evaluated by the Governing Body in accordance with clause (4) of Statute No.219(B). In other words, the provisions of law in relation to the assessment of the suitability of the respondent No.1 was not at all followed and, as rightly contended on behalf of the respondent No.1, it was merely by whims and fancies that the services of the respondent No.1 were stated to be not satisfactory.
8. There is no doubt that the selection committee has observed in its report that the respondent No.1 could not be appointed on permanent basis unless he had acquired the necessary qualifications of NET/SET examination. That is also the provision of law comprised in Government Resolution dated 22nd December, 1995. Being so, the note by the selection committee in its report did not contain something new as such nor it empowered the authorities to act contrary to the provisions of law applicable to the institution. The said Government Resolution clearly discloses that the candidate selected for the appointment in a permanent vacancy after following the procedure of selection, once appointed in such post cannot be confirmed in the said post unless he acquires NET/SET qualification. But at the same time it also provides that such candidates cannot be terminated solely on the ground of non acquisition of the said qualifications within specified period and it is a matter of record that the facility to acquire such SET/NET qualification was being extended from time to time by the Government to the candidates appointed in similar such situations.
9. All these provisions of law and the facts which warrant and justify the claim of the respondent No.1 for continuation in the employment with the petitioners have been duly considered by the Tribunal in its judgment and, therefore, the same needs no interference as it does not disclose any illegality or improper exercise of jurisdiction.