Writ Petition No.107 of 1994,Writ Petition No.563 of 1994

28th October, 2005

Petitioner Counsel: Shri. M. M. SUDAME
Respondent Counsel: Shri. G. G. MISHRA,Smt. T. D. KHADE

Cases Cited:
Premlata Sudhakar Sathe Vs. Governing Body of G. S. Tompe College, 1981 Mh.L.J. 332 [Para 18]

JUDGMENT

JUDGMENT :- In Writ Petition No.107/1994, the petitioner employee is challenging the judgment dated 25-11-1993, delivered by the Presiding Officer, College Tribunal, Nagpur in appeal under section 45 of Amravati University Act, 1983. The College Tribunal has dismissed her appeal.

2. The petitioner challenged in the said appeal the order dated 18-3-1994 issued by the respondent No.2 terminating her services as part time lecturer w.e.f. 20-04-1991. The case of the petitioner in short is that on being selected and recommended by the duly constituted selection committee, she was appointed w.e.f. 24-08-1988 as part time lecturer in Marathi on temporary basis, in one academic session i.e. 1988-89 and thereafter, again she was re-appointed w.e.f. 12-08-1989 in the same capacity, but on probation and was continued as such till termination of her appointment by the impugned order. She contended that this termination was not in accordance with the provisions of the Amravati University Act. She stated that she was appointed against a clear vacancy and on recommendation of the duly constituted selection committee and having put in more than 2 years continuous service in that capacity, in view of the provisions of Statute 53 she occupied the status as confirmed teacher, and as such could not have been discontinued without holding departmental enquiry. She relied upon the provisions of Statute 53 and also Ordinance No.24 in support.

3. The respondent Management did not deny the first appointment of petitioner and her continuation thereafter by subsequently order. The management defended their action by pointing out that the performance of the petitioner during her period of probation was not satisfactory, and as such, the employer in exercise of rights available to it, legally terminated her services before completion of period of probation by issuing simple one months notice, and it was stated that therefore, holding of departmental enquiry was not necessary. They stated that in view of the probation w.e.f. 12-08-1989 she did not complete period of probation till 20-4-1991, and hence question of acquiring the status of confirmed teacher did not arise. By placing reliance upon the provisions of Statute 53, Rule 4 Management contended that she was not appointed against clear vacancy, and as such she could not have been acquired the status of confirmed teacher, merely by putting in 2 years service as probation. It was therefore, stated that the approval of University was not necessary before terminating her services.

4. The College Tribunal has considered this aspect and has found that though the petitioner proved that her appointment was on probation she could not prove that it was against the clear vacancy and she could not further prove that she satisfactorily completed the said period. The College Tribunal has found that the College in which the petitioner was working was opened in 1986-87 session and it was not in existence before that. Thus the post was created for the first time in 1987-88 and in 1988-89 the petitioner was appointed on probation and at that time the post has not become clear and/or permanent in view of the definition of clear vacancy under the provisions of Rule 4 of Statute 53. It is further observed that upto 26-4-1991 the petitioner had completed less then two years, and thereafter her services record has been considered by the College Tribunal to point out how her performance was not satisfactory. It further found that the University letter dt.8-6-1990 granting approval to the petitioner as full time employee was issued on wrong and incorrect representation. It further found that there was no sufficient work load to appoint the petitioner as full time lecturer and it found that some documents considered by the University for giving approval to the petitioner on full time basis were infact forwarded by the petitioner herself in the capacity of in-charge Principal. It is further recorded that during the relevant period the institution had not permitted Marathi Literature either as subject or as optional subject and it has accepted the case of management that the petitioner was only a part time teacher. It also found that the Secretary of the respondent No.2 society filed affidavit stating that the petitioner obtained the signatures on certain proposals misleading him and no proposal for full time appointment of petitioner was forwarded to the University, consciously. In view of this finding the College Tribunal found that the services of the petitioner were terminated during the period of probation and she had not acquired the status of confirmed teacher and her services would have been terminated without holding any enquiry against her.

5. I have heard Advocate Sudame and Advocate Deshpande for petitioners in respective petitions, learned Assistant Government Pleader for Respondent No.1 in Writ Petition No.107/1994 and for respondent No.2 in Writ Petition No.563/1994. Advocate Mishra, for respondent No.3 and Mrs. Khade, Advocate for respondent No.4 in Writ Petition No.107/1994.

6. Advocate Sudame, has contended that the petitioner was initially appointed as clerk by order dt.24-8-1988. She was appointed as lecturer. He further states that the petitioner completed one year in August, 1989 and she was also made in charge Principal of respondent No.3 College because of her work. He further argues that thereafter, the petitioner was again given fresh appointment as mentioned above, and that her services were terminated on 20-04-1991. It is contended that the petitioner completed two years of services as lecturer in Marathi on 24-8-1989, and as such she could not have been treated as probationer. The reliance has been placed upon the provisions of Statute 53 and Ordinance No.24 in support. It is further contended that as per the Ordinance No.24, an agreement was deemed to have been entered into and said agreement being a statutory agreement the services of petitioner would not have been terminated in such mode and manner. It is further stated that the interpretation of Clause 4 of Statute 53 by the College Tribunal is not just and proper. Attention is invited to the requirement of work load for full time and part time teachers and particularly to the directives issued on 27-8-1981 to contend that when there was one person in Marathi department such person/teacher was to be considered as full time. Attention has been invited to the available work load with reference to the documents and directives on record with a view to demonstrate that the petitioner had work load of 12 periods.

7. In reply, the learned counsel for respondent No.3 has contended that as the College was opened only in 1986 and no clear vacancy in any post could become available before 1990, and as such the petitioner could not have been appointed on probation before 1990 and that therefore, the probation period would begin only in 1990 and hence on the date of her termination i.e. on 20-4-1991 she had not completed the period of probation. He invites attention to the observations made by the College Tribunal in order to demonstrate that the services of the petitioner were terminated for unsatisfactory performance. He contend that the petitioner was only a part time lecturer and had work load of only 8 periods. He further states that when the petitioner was officiating as Principal, by practicing misrepresentation she obtained approval as lecturer by adding 15 periods of Marathi Literature. According to him the provisions of Ordinance 24(11) prescribed for qualification of teachers. The petitioner was part time teacher and as such she was not probationer. It is further contended by him that classes in Marathi literature were started by the petitioner at her own, without any permission from the management and the University. He further states that no interference is warranted in the matter in writ jurisdiction.

8. Petitioner in Writ Petition No.563/1994 was appointed by the same Management on 7-9-1988 for academic year 1988-89 and, thereafter, by order dated 12-08-1989. By this order he was appointed on probation for a period from 1989 to 1991 and on 4-4-1990 Amravati University granted approval to the appointment as teacher in Political Science as full time teacher from 1988-89 onwards. It is further stated that on 1-12-1989 similar approval was given to the petitioner. Thereafter, the management gave him appointment order dt.6-8-1990, appointing him on permanent basis. On 18-3-1991 he was sought to be terminated from 20-4-1991 on the ground that the educational session is coming to end. The petitioner accordingly filed appeal under section 45 of the Amravati University Act, 1983. The said appeal is again dismissed by the College Tribunal by holding that the appointment of the petitioner was on probation only and he has been terminated during probation on account of non-satisfactory service.

9. The argument advanced by the learned counsel for the petitioner Shri. Deshpande and Advocate C. G. Mishra, for respondent No.1 are identical as mentioned in Writ Petition No.107/1994.

10. In both these writ petitions, it is apparent that the employees were appointed on probation and petitioner Rekha in Writ Petition No.107/1994, completed two years on 24-8-1990. Her services have been terminated thereafter by order dt.18-3-1991 w.e.f. 20-4-1991. The other petitioner Ravindra has infact been appointed on probation by order dt.12-8-1987 and he was also given approval accordingly by the University, initially on 1-12-1989 and thereafter on 4-4-1990. After this order he has been confirmed by order dated 6-8-1990. He has been terminated after confirmation by order dt.18-3-1990 w.e.f. 20-4-1991. However, the College Tribunal has treated this appointment as on probation, after holding that the petitioner were not appointed against clear vacancy.

11. In case of Rekha, there is a dispute between the parties about the nature of her appointment. The Management contended that she was appointed on part time basis, while the petitioner has pointed out that she was appointed as full time teacher. The petitioner has produced on record approval given to her service by the University on 8-6-1990 on probation basis. This approval was not challenged by the management before any other forum and management also did not make any grievance to the University about it. The management has filed affidavit before this court to demonstrate that only 8 periods were available for petitioner. However, the petitioner has filed the counter affidavit to show that the work load for Marathi teacher was available and infact on 8-8-1992 Management issued advertisement for full time post in Marathi. The petitioner has also produced before this Court directive having No.AC/CO/C/316, dated 28-08-1981, in which it is mentioned that if there is only one man in department, the teacher concerned should be considered as a full time even if he has a work load of 12 periods per week. It is not disputed in the facts of the present case that the department in which the petitioner is working was having only one teacher i.e. the petitioner. The material on record also demonstrates that the subject of Marathi literature was also being taught and that work load was available to the petitioner. In this background acceptance of the affidavit by the College Tribunal that the petitioner has obtained some signature and forwarded the proposal for obtaining approval on full time basis cannot be accepted. The petitioner has also produced before this Court along with her affidavit dated 3-10-2005 Statement of marks issued by Amravati University of about 6 students. The first statement of marks is dated 19-7-1989, in which it is shown that the student named therein appeared for Marathi literature paper in Summer Examination 1989, of Amravati University. The other statement of marks is in relation to March, 1990 examination which again shows the same fact. The third statement of marks is in relation to Summer 1989 Examination conducted by the Amravati University and it shows that the student named therein appeared for Marathi literature in Summer 1989 Examination. March, 1993 statement of marks issued to student Sanjay shows that he passed his Graduation in March, 1993 with Marathi literature as subject. March, 1991 mark sheet of another student shows that he appeared for Marathi literature paper of Amravati University. March, 1992 statement of marks of another student shows that he appeared for Marathi Literature in March, 1992. Thus, these mark sheets spread over the considerable time refute the claim of the respondent Management that Marathi Literature was not approved either by the Management or by the University for being taught in respondent College. The case of respondent that there was workload for her and her services were approved by Amravati University as full time teacher therefore is substantiated. The arguments of Advocate Mishra, about classification of teacher relying upon the provisions of Chapter-II in Ordinance No.122, in this respect therefore, cannot be accepted. It is to be noted that the said Chapter gives three heads of classification. Those heads are (1) Permanent Teacher; (2) Probationary Teacher; and (3) Temporary Teacher. These clauses further defines who is permanent teacher, who is probationary teacher and who is temporary teacher. It also defines part time teacher, and contributory teacher. Clause 7 in the said Chapter states that other teacher except part time teacher and contributory teachers are to be appointed as per contract given in Appendix "A". In view of the discussion above, it cannot be accepted that the petitioner was a part time teacher.

12. So far as the petitioner Ravindra in other petition is concerned, there is no dispute about his status.

13. In this background when the provisions of Statute 53 are looked into, the said Statute deals with the subject of confirmation of teacher in affiliated Colleges. Clause 4 of this Ordinance falls for consideration in this matter. And said clause reads as under :-

"4. A teacher shall subject to the procedure of Selection and Appointment, be appointed in a clear vacancy in the first instance on probation for two years (24 months) from the date of his appointment, at the end of which he shall be confirmed on the expiry of which he shall either be confirmed or his services dispensed with, provided that notice of such confirmation or termination of services shall be given at least one month before the due date, in the absence of which it shall be construed that he has completed the period of probation satisfactorily and that he is deemed to be confirmed in service.

Provided that if any teacher already, in service has completed two years of service temporarily/probation in a clear vacancy, he will be deemed to be a confirmed.

Explanation : It is hereby clarified that a clear vacancy means a vacancy which is not in a lien vacancy or leave vacancy and that the vacancy/post is on vogue in the Institution for not less than four years."

Thus a teacher to be appointed on probation can be appointed for two years and at the end thereof, he is to be confirmed. The said clause further provides that notice of confirmation or termination of service is to be given at least one month before the due date and in absence thereof, it is to be presumed that the employee has completed period of probation satisfactorily and it is to be presumed that he is confirmed in service. Thus in case of the petitioner - Rekha, the period of her probation expired on 24-08-1990, and before that she was not given any notice of termination or any notice of confirmation also. In view of the deeming fiction provided for in clause 4, it is held that in normal circumstances she could have been deemed to have been confirmed on 24-08-1990. The termination of her service on account of the alleged unsatisfactory performance after 24-08-1990 therefore, will not be in accordance with the provisions of Ordinance No.122, mentioned above, or Ordinance No.24, particularly the agreement mentioned in Schedule-A, thereto. Same will be the position in case of petitioner Ravindra, in another petition. On the other hand his case stands on better footing because he has been expressly confirmed by order dt.6-8-1990.

14. However, the College Tribunal, has not treated them as the probationers on the ground of their appointment was not on clear vacancy. The opening para of Clause 4, of Statute No.53 requires the appointment of the petitioner in clear vacancy. The Phrase - Clear Vacancy has been defined in explanation appearing at the end of clause 4. As per the said explanation, a vacancy can be treated as clear vacancy if it is not a lien vacancy or a leave vacancy and said vacancy/post is in existence in the College for not less than 4 years. Thus merely because the vacancy exists the said vacancy cannot be treated as clear vacancy. Here the College in which the petitioners were working has been established in 1986 and as such there was no question of any lien vacancy or leave vacancy. It is not the case of the respondents also that the petitioners were appointed against lien or leave vacancy though the posts were vacant and available. The vacancy could not be said as clear vacancy because the said vacancy was not available for 4 years. The College Tribunal has found that these vacancies did not qualify as clear vacancy till the year 1990. In other words, it is held that in the College which is newly opened, there cannot be a vacancy for initial period of 4 years. In this view of the matter, the College Tribunal has found that the petitioners could not have been appointed against the clear vacancy before 1990. In view of this finding, the College Tribunal has found that on 20-4-1991, when both the petitioners were terminated, they had not completed period of probation. In other word, the College Tribunal has reckoned the appointment of both the petitioners as probationers from 1990.

15. Look at this provision shows that it has been enacted with obvious purpose because the number of post become available in a College after it is newly opened varies initially and also to avoid unnecessary burden on exchequer, in case of a particular subject is required to be discontinued initially within 3-4 years. Intention therefore appears to treat the post as permanently available, if that post and work load for it remains available continuously for four years. The substantial part of clause 4 provides for probation of two years at first instance. If the interpretation given by the College Tribunal to above explanation is accepted the probation period of every new teacher joining the new College shall start after expiry of the initial period of 4 years. Thus after putting of 6 years in such College he can be confirmed in normal circumstances. As against this, the teacher who joined such College at the end of four years, against the post which was then vacant, he would be appointed against the clear vacancy initially itself, and therefore, he would stand confirmed only after putting in two years. Thus, in the new College all teachers joining initially would be loosing four years of their service, while in other Colleges it will not be the position. This will be discrimination and will work against the interest of such new incumbent in new college. If the purpose to enact the artificial definition of clear vacancy in explanation is looked into, it is apparent that the intention is to safeguard the interest of revenue, and is not to cause any prejudice to the interest of teacher. The purpose obviously is also not to create artificial discrimination between the teachers by extending them to different treatment in the matter of computation of total length of their service. It is apparent that if the post remains available for four years, it would become clear and it was a clear vacancy. Thus the question whether the vacancy was clear or not as contemplated by the said explanation can be decided after four years, and if the teacher has worked on that post in the meanwhile it can be said that his initial appointment was against the clear vacancy. It is not necessary for the said teacher to wait for four years after his appointment against the clear vacancy and to commence the period of his probation thereafter. If the post is available, even after four years, the service put in by such teacher prior thereto will become a service against the clear vacancy and the appointment on probation as per clause 4 of Statute No.53. Thus if such teacher has completed period of his probation before expiry of this waiting period of four years. He will remain a temporary teacher till then and management will have right to remove him as per contract with him.

16. In the facts of the present case, the fact that vacancy in Marathi and Political Science existed since 1986 when the College commenced and was available in the year 1990, is not in dispute. Infact both the petitioners have been discontinued after the College completed 5 years and thus the vacancy also existence for about 5 years. In such circumstances, the appointment of petitioner by order dated 24-08-1988 and 12-08-1989 respectively, is against clear vacancy and therefore, the probation for a period of two years. In case of petitioner Rekha in Writ Petition No.107/1994, the said period would expire on 24-08-1990, while in case of Ravindra, there is express order of confirmation issued by the Management itself on 6-8-1990. It is thus apparent that the College was not right in treating the petitioners as on probation on 20-4-1991.

17. Advocate Sudame, has tried to contend that the explanation cannot be interpreted to curtail the meaning of substantive portion of the section. He has also relied on some cases in this respect. However, I find that the said explanation is infact only a definition which clarifies what is meant by a "clear vacancy". The case law in relation to interpretation of explanation is therefore not relevant for this purpose.

18. Advocate Sudame and Advocate Deshpande, have invited attention of the court to the provisions of Ordinance No.24, to point out that the appointment of College teachers is regulated by Chapter 5 thereof. It is pointed out that both the petitioners are selected after completing the procedure prescribed in clause 38 and the appointment presumes a written contract in the form prescribed in Schedule-A. Clauses 8 and 9 of this contract prescribed in Schedule-A, are important. Clause 8 prescribes that after confirmation of the service of such teacher can be terminated upon in certain contingencies like misconduct, unfitness, non-competence and operation of post. In Clause 9 it has been mentioned that if the services are to be terminated upon any other count except clause A or B of Clause 8, the employer has to give to such teachers three calender month notice in writing or pay him salary of three months in lieu thereof. Attention is invited to the Full Bench Judgment of this court reported at 1981 Mh.L.J. 332 (Premlata Sudhakar Sathe Vs. Governing Body of G. S. Tompe College and Ors.). Paragraph No.6 of this ruling deals with this statutory form of contract and it has been held that in view of the wordings in Article 38 of Ordinance No.24, it is not necessary that such written contract must be executed and it has been observed that it would be a mere formality. It has been observed that infirmity or formal defect in the actual execution of the contract cannot vitiate the contract itself, nor can it rob the parties of the rights and obligations flowing from the statutory contract itself. It is also held that provisions of College Code (Ordinance No.24), cannot be read in isolation divorced from it, and parties cannot be permitted to evade their liability under this statutory contract. It is stated that a interpretation which will help the party to escape their obligations or will enable him to defeat the Statute or will permit him to take advantage of his own wrong is to be avoided, and if two interpretation are possible then one which will suppress the mischief and advance the remedy will have to be preferred. In the facts of the present case, when the Management itself appointed both the teachers on probation by issuing order on 12-08-1989, it is apparent that all these observations will apply and come to the rescue of the present petitioners.

19. In the circumstances, the impugned orders of the College Tribunal dated 26-11-1993 and 3-12-1993 respectively are quashed and set aside. The termination orders dated 18-3-1991 issued to the petitioners are also quashed and set aside. The respective appeals filed by the petitioners before the College Tribunal are hereby allowed. The respondent management is directed to reinstate the petitioner in service with continuity of service. Considering the fact that the termination is being set aside almost after 14 years, I am not inclined to grant full back wages to the petitioners. The management is directed to reinstate the petitioners with 30% back wages.

20. Rule is made absolute in the aforesaid terms, with no order as to costs.

Petition allowed.