Writ Petition No. 1940 of 2006,Writ Petition No. 2463 of 2012

29th August, 2013

Petitioner Counsel: Mr. MIHIR DES
Respondent Counsel: Mr. A.I. SAYYED, Mr. RUI RODRIQUES, Mr. A.I. PATEL, Ms UMA PALSULEDESAI

Cases Cited:
Kakoli Shyamlal Sircer Vs. Nagpur University & Ors., 2002(2) Mh. L. J. 673 [Para 7,11,15]
Ashok Chandrashekar Rao Vs. University of Mumbai, Writ Petition No.3101/2004, Dt.26/4/2005 [Para 7,12]
Sanjay Raghunath Gadakh Vs. N.D.M.V.P. Samaj, Civil Writ Petition No.3540/2005, Dt.27/02/2008 [Para 7,17]
Deepa Gourang Murdeshwar Katre Vs. Principal, V.A.V. College of Arts & Ors., 2007 ALL SCR 1719=(2007) 14 SCC 108 [Para 7,13]

JUDGMENT

M. S. SONAK, J. :- With the consent of the parties, both the petitions are taken up for final disposal.

2. The petitioner is a Lecturer (Chemistry) at the D. G. Ruparel College of Arts, Science & Commerce (hereafter referred to as "the College"). The College is affiliated to the University of Mumbai (hereafter referred to as "the University"). The College is in receipt of aid from the Directorate of Higher Technical Education, State of Maharashtra (hereafter referred to as "the State"). The College, the University and the State have been respectively impleaded as parties in both petitions.

3. In writ petition no. 1940 of 2006, the Rule was issued on 26.04.2006. The petitioner, essentially seeks a writ of mandamus to direct the College, the University and the State to treat her as having been regularly appointed (on probation) to the post of Lecturer (Chemistry) with effect from the date of her initial appointment i.e. 23.07.1990 and thereafter to confirm her services after two years i.e. w.e.f. 23.07.1992 and to accord to her all corresponding and consequential benefits.

4. The grievance in writ petition no. 2463 of 2012, essentially concerns the non implementation of judgment and order dated 04.10.2011 passed by the College Tribunal reinstating the petitioner as regular permanent teacher in chemistry with continuity from the date of her initial appointment. The judgment and order dated 04.10.2011 set aside order dated 02.01.2008 by which petitioner's services were terminated on ground of reduction in workload and directed reinstatement as regular permanent teacher in Chemistry with continuity from the date of her initial appointment. The College in compliance with the judgment and order dated 04.10.2011 did reinstate the petitioner. However, no salary and other emoluments have been paid to the petitioner from the said date, though the petitioner continues to discharge duties as Lecturer (Chemistry). Hence, Rule in Writ Petition no. 2463 of 2012. With consent, Rule is made returnable forthwith.

5. The State of Maharashtra and the University contend that the judgment and order of the College Tribunal dated 04.10.2011 contains no directions as against them, although they may have been impleaded as parties to the proceedings. In the circumstances, they contend that they are not bound by the order of the College Tribunal. In the alternate, they contend that the petitioner having been appointed against the reserved post, there was no question of directing regularisation, unless the process for dereservation is duly complied with. In writ petition no. 1940 of 2006, the grievance of the petitioner concerns the inaction on the part of the College, University and the State in the matter of dereservation and consequent denial of regular appointment to the petitioner. In the circumstances, we deem it fit to take up and consider both the writ petitions together for the purposes of final disposal.

6. The factual matrix necessary for appreciation of the petitioner's case and the respondents response is set out hereafter:

(A) On 06.06.1990, the College issued an advertisement, interalia inviting applications for filling up post of full time Lecturer (Chemistry) from reserved category candidates. This advertisement, which shall hereafter be referred to as "1st advertisement", made it clear that in case candidates from reserved categories are not available, then candidates from open category may be considered for appointment on purely temporary basis for one academic year.

(B) In response to the 1st advertisement, the petitioner, who is open category candidate applied for and upon recommendation of duly constituted selection committee, came to be appointed by the College to the post of Lecturer (Chemistry) vide appointment letter dated 01.08.1990 on temporary basis w.e.f. 25.07.1990 for the academic year 1991. The selection committee interalia comprised representatives of the College / Management, nominee of the Vice Chancellor of the University and nominee of the State.

(C) The aforesaid appointment was consistent with circulars dated 11.03.1987 and 07.07.1990 issued by the University adopting corresponding Government Resolutions dated 29.09.1986 and 07.07.1990 issued by the State, in the matter of appointments of open category candidates against reserved posts and the procedure for dereservation and consequent regularisation of such appointments.

(D) The circular dated 11.03.1987 issued by the University adopts Government Resolution No.UG/1286/(1179)/UNI-4 dated 29.09.1986 issued by the State. The Circular / Government Resolution interalia provide that where a reserved teaching post is filled by appointment of a suitable open category candidate in pursuance of 1st advertisement, the post shall be advertised for 2nd and 3rd years inviting applications only from candidates belonging to reserved category provided the open category candidate already appointed is continuing in service. If, in pursuance of 2nd and 3rd advertisements, there is no response from any reserved category candidates, then College can initiate process of dereservation of the reserved post. Upon completion of the process, the open category candidate so appointed shall be deemed to have been appointed on probation with retrospective effect from the date of initial appointment and such appointment shall be confirmed from the date of completion of two years from the initial appointment. This circular came into force w.e.f. 29.09.1986.

(E) By another circular no. CONCOL/148 OF 1990 dated 07.07.1990, the University adopted the Government Resolution no. USG/1286/(1170)UNI-4 dated 25.01.1990, upon the very same subject. The circular of 1990, interalia provides that dereservation process shall be effected after issuance of five annual advertisements instead of the three referred to in the circular dated 11.03.1987. Except for these changes, the procedures prescribed in the circular dated 11.03.1987 were substantially continued.

(F) There is yet another circular no. 39 of 1994 dated 02.03.1994 issued by the University which contemplates that the department / college, apart from issuing prescribed number of advertisements, should also intimate seven specified agencies (NGOs) established for welfare of reserved category candidates and obtain recommendations / names of reserved category candidates, who fulfil the eligibility criteria and may be desirous to be considered for appointment. This is for the purpose of establishing that genuine efforts have indeed been made for filling up reserved post with reserved category candidates.

(G) Accordingly for the academic year 1991-92, the College issued advertisement dated 15.05.1991 (2nd advertisement) inviting applications from reserved category candidates only to the post of Lecturer (Chemistry). As there was no response from any reserved category candidates, the petitioner was continued as Lecturer (Chemistry) for the academic year 1991-92. This appointment / continuance was duly approved by the University. On basis of such approval, the State released the necessary grants to the College for payment of salary and other emoluments to the petitioner for the academic year 1991-92.

(H) For the academic year 1992-93, the College issued 3rd advertisement, and since there was no response from reserved category candidates, the petitioner was continued as Lecturer (Chemistry) for the academic year 1992-93, again with the approval from the University and release of grants from the State.

(I) For the academic year 1993-94, the College issued 4th advertisement and since there was again no response from reserved category candidates, the petitioner was continued as Lecturer (Chemistry) for the academic year 1993-94, again with the approval from the University and release of grants from the State.

(J) For the academic year 1994-95, the College issued 5th advertisement and since there was again no response from reserved category candidates, the petitioner was continued as Lecturer (Chemistry) for the academic year 1993-94, again with the approval from the University and release of grants from the State.

(K) The College has placed on record two compilations of documents. The first compilation has copies of approvals granted by the University for the appointment of the petitioner as Lecturer (Chemistry) from the academic year 1990-91 upto 2004-05. The approvals pertain to each of the respective academic years. For example, the approval letter dated 13.11.1991 contains the following endorsement against the name of the petitioner:

"Approved as full-time temporary teacher in Chemistry from 23-7-1990 to 20-4-1991."

The approval letter dated 12.09.1996 for the academic year 1995-96 contains the following endorsement against the name of the petitioner:-

"Approved as full-time lecturer in Chemistry on temporary basis from 20.6.95 to 20.4.96 (Against Reserved Post)."

The approval letter dated 27.09.2002 for the academic year 1999- 2000 contains the following endorsement against the name of the petitioner:-

"Full-time lecturer in Chemistry on temporary basis from 16.6.1999 till end of the academic year 1999-2000 including vacation period. (Against reserved post) (proposal sent for de-reservation)."

Similar endorsement appears in the approval letter dated 15.07.2005 for the academic year 2001-2002 and 2002-2003.

The approval letter dated 24.06.2005 for the academic year 2000-2001 contains the following endorsement against the name of the petitioner:-

"Full-time Lecturer in Chemistry on temporary basis from 9.6.2000 till end of the academic year 2000-2001 (Against reserved post) (De-reservation case)."

(L) The second compilation of documents are photo copies of letters addressed by the College to seven specified agencies like Maharashtra State Cooperative Tribal Development, Director Adivasi Kalyan, Divisional Social Welfare Officer, University Employment Exchange Office, etc., intimating them about the vacancies in the reserved post and requesting them to recommend the names of suitable reserved category candidates, if available, to fill up the said posts. In some cases the agencies have issued NOCs as they were unable to recommend names of any reserved category candidates. In some cases there are postal receipts / acknowledgment receipts which establish that the specified agencies were indeed intimated about the vacancy position and requests were made to recommend / forward the names of suitable reserved category candidates.

(M) The aforesaid procedures of issuing advertisements, addressing intimations to seven specified agencies and obtaining approvals from the University from time to time, were obviously in compliance with University Circulars and Government Resolutions of 1986-87 and 1990 to which reference has been made herein above, both for the purpose of continuance of the petitioner's appointment as against a reserved post and towards eventual dereservation of the reserved post in order to facilitate regularisation of petitioner's services from the date of her initial appointment in the year 1990.

(N) It is pertinent to set out that though the Circular / Government Resolution of 1990 provided for issuance of five annual advertisements before process of dereservation could be initiated, the College even after the issuance of 5th advertisement dated 31.05.1994 for the academic year 1994-95 proceed to issue advertisements for the subsequent academic years as well on 24.06.1996, 16.05.1997, 03.08.1998, 04.06.1999, 21.06.2001 and 25.12.2003. Despite all such advertisements, there was no response from any reserved category candidates for the post of Lecturer (Chemistry). The appointment of the petitioner was accordingly continued as aforesaid.

(O) The petitioner, in the meanwhile, addressed representations seeking de-reservation and consequent regularisation of her appointment w.e.f. 23.07.1990 i.e. the date of her initial appointment. As there was no favourable response, the petitioner preferred writ petition no. 1940 of 2006 on 17.03.2006. Rule was issued in the said petition on 26.04.2006.

(P) During the pendency of writ petition no.1940 of 2006, by letter dated 02.01.2008, the petitioner's services came to be terminated on the alleged ground of reduction in workload, which ground was totally unconnected with the issue of de-reservation. The petitioner, initially preferred a writ petition to question the termination letter dated 02.01.2008. However the said writ petition was disposed of on the ground that the petitioner had alternate remedy to file appeal before College Tribunal under Section 59 of the Mumbai Universities Act, 1994.

Thereafter appeal no. 80 of 2008 came to be filed before the College Tribunal, which was disposed of by the College Tribunal by its judgment and order dated 04.10.2011. By the said judgment and order, the College Tribunal quashed and set aside the order dated 02.01.2008 and further directed the College to reinstate the petitioner as a permanent lecturer in chemistry with continuity from the date of her initial appointment. The petitioner was denied back wages. The judgment and order records that the same came to be passed in view of changed circumstances, namely, retirement of three lecturers from the chemistry department and the consequent sufficiency in workload for the petitioner's continuance. The University and the State were parties in appeal no. 80 of 2008. However they have chosen not to challenge the judgment and order dated 04.10.2011 passed by the College Tribunal, as it is their case that the directions for reinstatement and continuity were issued only to the College / Management and that the same were not binding upon the University or the College.

(Q) In pursuance of the judgment and order dated 04.10.2011 the petitioner was permitted by the College to resume duties w.e.f. 8.11.2011. However, neither has the University approved the appointment of the petitioner post 08.11.2011 nor has the State released any aid for the payment of salary and other emoluments to the petitioner. Consequently, the College has also not been paying any salary or emoluments to the petitioner despite the fact that the petitioner has been discharging duties as Lecturer (Chemistry) from 08.11.2011 till date. The petitioner is due to retire upon attaining the age of superannuation in the year 2014.

7. Mr. Mihir Desai, the learned Advocate appearing for the petitioner submitted that the petitioner possesses necessary qualification for appointment to the post of Lecturer (Chemistry). Her appointment w.e.f. 23.07.1990 was in pursuance of 1st advertisement dated 06.06.1990 and on the basis of recommendation made by duly constituted selection committee from academic year 1990-91 and upto 02.01.2008, the petitioner has discharged duties as Lecturer (Chemistry) uninterruptedly, though on temporary basis. Petitioner has resumed duties w.e.f. 08.11.2011 and continues to discharge duties till date. For all these years, the appointment of the petitioner was duly approved by the University and salary and other emoluments were paid to the petitioner by the College from out of the grants released by the State. He submitted that the petitioner's case is covered by circular dated 07.07.1990 and consequent upon the post of Lecturer (Chemistry) having been advertised five times, the 5th advertisement being the advertisement dated 31.05.1994, the respondents were bound to dereserve the post and regularise petitioner's service from the date of her initial appointment i.e. from 23.07.1990 and confirm her service w.e.f. 23.07.1992. He submitted that there is substantial compliance with the conditions prescribed under the circular dated 07.07.1990; that the petitioner is continued in service for over 20 years; that the petitioner shall attain the age of superannuation by 2014 and that despite having been reinstated w.e.f. 08.11.2011, in pursuance of judgment and order dated 04.10.2011 by the College Tribunal, the petitioner was being deprived of salary and other emoluments. In such circumstances, he submitted that writ petition no. 1940 of 2006 filed by the petitioner be allowed and the petitioner's service be regularised w.e.f. 23.07.1990 itself along with other consequential benefits. He submitted that in case such relief is granted, then the subsequent letter of termination dated 02.01.2008 would also not stand because the service of the regular employee cannot be terminated on grounds of reduction in workload. Such regularly appointed employees are required to be redeployed and that too by following the principles of 'last come first go'. In any case, he submitted that the judgment and order dated 04.10.2011 passed by the College Tribunal has granted the petitioner benefit of permanency / regularisation from the date of her initial appointment and such judgment and order binds the University and the State since they were parties to appeal no. 80 of 2008 which was filed by the petitioner before the College Tribunal. He submitted that since the University and the State have not chosen to challenge the judgment and order dated 04.10.2011, they cannot refuse to abide by the same. Mr. Desai, made reference to the following judgments in the case of (I) Kakoli Shyamlal Sircer vs. Nagpur University & Ors. 2002(2) Mh. L. J. 673, (II) Unreported judgment in the case of Ashok Chandrashekar Rao vs. University of Mumbai in writ petition no. 3101 of 2004 decided on 26.4.2005, (III) Sanjay Raghunath Gadakh vs. N.D.M.V.P. Samaj in civil writ petition no. 3540 of 2005 decided on 27.02.2008 and (IV) Deepa Gourang Murdeshwar Katre vs. Principal, V.A.V. College of Arts & Ors. (2007) 14 SCC 108 : [2007 ALL SCR 1719] and submitted that these cases substantially cover the issues raised in writ petition no. 1940 of 2006.

8. Mr. A. I. Patel, the learned Assistant Government Pleader appearing for the State in writ petition no. 1940 of 2006 and Ms. Uma Palsuledesai, the learned Assistant Government Pleader also appearing for the State in writ petition no. 2463 of 2012 submitted that the petitioner is not entitled to any relief in both the writ petitions. With particular reference to writ petition no.1940 of 2006, they submitted that the case of the petitioner was covered by G.R. dated 05.12.1994 which interalia provides for the reserved post being advertised six times and not five times as provided under the G.R. dated 25.01.1990 upon which the petitioner has placed reliance. They further submitted that the G.R. dated 05.12.1994 provides that if despite five advertisements, there is no response from reserved category candidates, then for the 6th year the advertisement which is issued should make it clear that the post is being filled on exchange basis (inter changeability) as specified in G.R. dated 05.12.1994. Further they submitted that there is no proper material to establish that requisite number of advertisements had been issued and that necessary intimations had been sent to the specified agencies (NGOs). In absence of such compliance, it could not be said that the College had indeed made genuine efforts to fill up the reserved post with reserved category candidates. They also pointed out that there can be no dereservation without compliance with such procedures followed by specific dereservation order to be issued by the State. In so far as writ petition no. 2463 of 2012 is concerned, they submitted that the judgment and order dated 04.10.2011 contains no directions as against the University or the State and consequently they are not bound by the same and there was no necessity for them to challenge the same. Ms. Uma Palsuledesai, further placed reliance upon G.R. dated 31.10.2007, including conditions 5 and 6 prescribed therein which provide that if new posts are created, consequent upon increase in workload, then prior permission of the State is necessary and no recruitment can be made without such prior permission. She submitted that no such permission from the State was obtained prior to reinstating the petitioner w.e.f. 08.11.2011 in terms of the directions contained in judgment and order dated 04.10.2011 passed by the College Tribunal. Accordingly, she submitted that the State is not obliged to either recognise such appointment or release any aid to the College in respect of such appointment.

9. Mr. Rui Rodriques, the learned counsel appearing for the University has substantially adopted the submissions made by and on behalf of the State. He further submitted that there are several discrepancies in the compilation of documents produced by the College as also in the copies of advertisements produced by the petitioner along with the petition. He submitted that the dates and years mentioned in chart of advertisements furnished by the College in its reply are contrary to the material on record. He submitted that the appointment letter dated 01.08.1990 issued to the petitioner indicates that she had applied for the said post on 03.06.1990 whereas the date of the 1st advertisement pursuant to which she is supposed to have applied is indicated as 06.06.1990. He submitted that the 2nd advertisement dated 15.05.1991, makes reference to academic year 1990-1991, when in fact the advertisement for the academic year 1990-1991 was the one issued on 06.06.1990. He points out that in the advertisement for the academic year 1992-1993 there is no clear date and some other advertisements annexed to the petition carry printed date line but no further details. In these circumstances, he submitted that there is no strict compliance with the Circulars / G.Rs dealing with de-reservation. He submitted that the University had required the College to depute its officials, in order to process the de-reservation papers concerning the petitioner. However, there was no compliance. He submitted that the College has in fact admitted that the acknowledgment receipts with regard to intimations sent to some of the prescribed agencies for the academic year 1990-1992 were missing. For all these reasons, he submitted that there was no compliance with Circulars / G.Rs relating to dereservation and therefore the petitioner is not entitled to any relief.

10. Before we analyse the factual aspects as they unfold, it would be appropriate to refer to some of the decided cases on the subject of de-reservation, in the context of Circulars / GRs to which reference has already been made. From the decided cases, it transpires that the courts have directed dereservation upon being satisfied that there is substantial compliance with the terms and conditions specified in the Circulars / G.Rs and there is material on record which establishes that the College or Institute has made genuine efforts for filling up reserved posts by reserved category candidates.

11. In the case of Kakoli Shyamlal Sircer (supra), a Division Bench of this Court in similar facts and circumstances directed dereservation and awarded benefit of regularisation to the petitioner in the said case. The relevant observations are quoted herein below for ready reference:-

"We have perused the petition, annexures thereto and reply filed by the respondents. In the facts and circumstances of the present case, which are very peculiar, in our view, the services of the petitioner are entitled to be confirmed from the date of the initial appointment i.e. from 18-8-1986. The petitioner has been continuously working since last 17 years. The Government Resolution of 1986 specifically states that if the candidate from the Scheduled Caste Category is not available then the person from the open category should be continued for a period of 3 years and thereafter the post should be dereserved. The Ordinance issued by the Vice-Chancellor by exercising his statutory power under section 11(6)(b) of the Nagpur University Act also specifically states that the vacancy can be carried forward up to the period of 3 years. The petitioner, by virtue of the interim orders of this Court, has continued to work as a lecturer in Biochemistry and she is being paid salary from month to month. Though it is true that the Resolution or the Ordinance issued by the University does not speak about automatic de-reservation, yet it cannot be overlooked that the petitioner has continued to work as a lecturer in Biochemistry and is working for the last 17 years. In our view, the petitioner is entitled to get the benefits of the Resolution issued by the Government of Maharashtra dated 29th September, 1986 which in clear terms states that if a candidate from the Scheduled Caste Category is not available then after third year the post has to be dereserved and the person from the open category who has worked should be confirmed in the said post. The ordinance issued by the University also clearly states that the post which is reserved for a reserved category can be carried forward only upto 3 years. In this view of the matter, we are of the view that the petitioner who has worked continuously for 3 years 18.8.1986 in the reserved category post, is entitled to get confirmation from the said post."

12. Yet another Division Bench of this court in the case of Ashok C. Rao (supra) granted relief to the petitioner in facts and circumstances which are almost similar to the case of the present petitioner. In the said case the contention that the advertisements issued by the college were not very clear or that necessary NOCs were not obtained from the 7 prescribed agencies were negatived by observing that as long as there is substantial compliance, post ought to be dereserved and the benefit of de-reservation be accorded to the incumbent in service. Relevant observations are quoted herein below:

"The petitioner was first appointed as Reader in Mechanical Engineering in the year 1991 pursuant to the advertisement which appeared on 30th August, 1990 in the Times of India. The petitioner for the last 14 years has been holding the said post pursuant to the policy decision of the University. The rejection for dereservation of post by the State Government is only on the ground that when the post was advertised, the advertisement did not clearly specify for which category of backward class candidate the post was reserved and secondly that on the sixth occasion there was no clause reflecting inter-changeability. In the advertisement issued on 30th August, 1990 as also on 19th July, 1991, on 16th March, 1993, on 21st May, 1994 and 10th August, 1995 the posts were shown as reserved for S.C. / S.T. / D.T. and N.T. It is therefore, clear that there was no specific indication that the posts were reserved for a specific indication that the posts were reserved for a specific category of reserved candidate. In the advertisement issued on 6th February, 1997 the post of Reader in Mechanical Engineering was shown as reserved for Scheduled Caste. In the advertisement of 14th August, 1999 it was mentioned that the post was already advertised five times for S.C. / S.T. Candidates. It is therefore, clear that it is not as if the posts were not advertised showing reservation. What was not indicated was the specific reserved category. The posts in the sixth advertisement ought to have been shown as available for other categories in other words, interchangeable of the reserved category was available. Instead the respondent No. 1 had first issued advertisement as if the posts were availed for all reserved candidates from the first to fifth advertisement. Inspite of that no candidate from reserved category applied for the said post. The advertisement was not only by an affiliated College of Respondent No. 1 but by Respondent No.1 itself.

It is true that the objection of reservations is to further the cause of those who are socially and economically underprivileged. That however is subject to the resolution issued by Respondent No.4 which contemplates de-reservation in the event candidates from reserved categories are not available."

8. The Petitioner has approached this Court consequent to the post being advertised on six occasions. The advertisement was purely in the hands of the Respondent No. 1. The petitioner had no say whatsoever in the matter. The question is whether the action of Respondent No.4 in rejecting the proposal of Respondent No.1 for de-reservation can be sustained. In our opinion in the event there has been substantial compliance, ordinarily Respondent no. 4 ought to dereserve the posts in terms of the resolution and as long as there are no malafides and that the attempt is not to protect candidates from the forward categories. In the instant case as noted by us earlier there has been substantial compliance. In the advertisement issued on 14th August, 1999 it was again declared that the post of Reader in Mechanical Engineering was not being advertised as it already been advertised on six occasions. Inspite of all the advertisements no candidate from any reserve category applied for the same or challenged the procedure of filling the posts. The advertisements were issued by the University itself. All these indicate that there was no candidate available from the reserved category to fill in the said post. In our opinion therefore this was a fit case for Respondent No. 4 to dereserve the post."

13. In the case of Deepa Katre, [2007 ALL SCR 1719] (supra) the Supreme Court whilst dealing with substantially similar facts and circumstances granted relief of dereservation and regularisation. In the said case also, the Mumbai University had objected to de-reservation on the ground that the 6th advertisement had not been published in terms of University circular and consequently there was no compliance with Circulars and G.Rs concerning dereservation. The Supreme Court, upon being satisfied that there was substantial compliance and no candidate from reserved category was available for sixth year when the advertisements were issued directed dereservation and regularisation. The relevant observations are quoted herein below for ready reference :-

"30. It is not in dispute that the appellant has been in service of the respondent College for the last 12 years. No candidate from the reserved category was available for six years. The appellant continued on the temporary basis year to year and hence it is a fit case where the appellant should be regularised on this post after dereserving the same and if the appellant is now thrown out, the appellant would be age-barred for any other service."

32. This apart, the appellant would be deprived of her livelihood if she is thrown out of her employment and irreparable injury would be caused to the appellant if the prayer made in the appeal is not granted. On the other hand, the respondents would not suffer any prejudice by granting the prayer made in the appeal as the appellant is fully qualified to teach English and has been doing so for the last 12 years."

14. In the present case, the facts on record establish that the petitioner was initially appointed as Lecturer (Chemistry) w.e.f. 23.07.1990 in pursuance of 1st advertisement dated 06.06.1990. Subsequently, advertisements came to be issued by the College in respect of each academic year, the 5th advertisement for the academic year 1994-95 being the one dated 31.05.1994. The circumstance that the dates in respect of some of the advertisements are not very clear or that the academic year referred to in one of the advertisements is incorrect, are not by themselves sufficient to conclude that there was no substantial compliance on the part of the College. In this regard, it is pertinent to note that from the year 1990 upto 2008, the University has issued approvals in respect of the petitioner's appointment / continuance for each academic year. The contention of Mr. Rodriques that the university has two different departments, one dealing with approvals and the other dealing with dereservation and therefore the circumstance that approvals came to be granted from time to time cannot lead to inference that University had verified at that stage the compliance of the procedures prescribed in the Circulars / G.Rs does not appear to be correct. In any case these are internal modalities which may have been adopted by the Universities. The fact that for 18 long years, the University issued approvals for the appointment / continuance of the petitioner establishes that the University had indeed verified that there was substantial compliance with the procedure prescribed under Circulars / G.Rs concerning dereservation. Further, in terms of the Circulars / G.Rs, the University is required to approve draft advertisements that have been issued when open category candidate is being continued against a reserved post. In the present case also there is nothing on record to suggest that the drafts of advertisements were not approved by the University. In the affidavit filed on behalf of the University, there is no contention that such drafts were not approved by the University. In these circumstances, it is not possible to accept the contention of Mr. Rodriques that there exist any serious discrepancies in the advertisements issued by the College from time to time. The same is the position with regard to intimations sent to seven specified agencies intimating them about reserved vacancy and requesting them to recommend candidates from reserved category. There is substantial compliance in this regard as well. The circumstance that postal acknowledgement receipts for the academic year 1990-1992 are not traceable, cannot lead to any inference that there was no compliance with the requirement. In fact, the material on record establishes that there has been substantial compliance. In the circumstances, we are satisfied that the College has substantially complied with the requirement of Circular dated 07.07.1990, which in turn adopts and applies the G.R. dated 25.01.1990 in the matter of dereservation and regularisation.

15. Another vital circumstance which needs to be referred to is that despite issuance of five advertisements and despite intimations having been sent to seven specified agencies, no candidate from the reserved category applied for the post of Lecturer (Chemistry) at the College. The petitioner continued in employment for a period of 18 years uninterruptedly. The interruption by way of letter of termination dated 02.01.2008 was also for reasons totally unconnected with the issue of dereservation. The termination was on account of reduction in workload. Even this termination would not have come about, had the petitioner services been regularised within a reasonable period from the issuance of 5th advertisement dated 31.05.1994. There are provisions for redeployment of surplus staff and that too on the principle of 'last come first go' . From the material placed on record, we are satisfied that the College has indeed made genuine efforts for exploring the possibility of filling up the reserved post by reserved category candidates. Despite such efforts, no candidates from the reserved category applied for appointment to the post of Lecturer (Chemistry) at the College. Applying the ratio descendi in the case of Kakoli Sircer (supra) and others, in the facts and circumstances of this case, we are satisfied that the petitioner is entitled to the benefit of dereservation and consequent regularisation in terms of Circular dated 07.07.1990 and G.R. dated 25.01.1990.

16. The learned counsel appearing for the State, however contended that the case of the petitioner is governed by the G.R. dated 05.12.1994, which requires issuance of six advertisement and the 6th advertisement should make it clear that the post is being filled on exchange basis (inter changeability). This having not been complied with the petitioner is not entitled to the benefit of dereservation and consequent regularisation.

17. The aforesaid contention is not correct. In the first place, the 5th advertisement in terms of circular dated 07.07.1990 and G.R. dated 25.01.1990 came to be issued on 31.05.1994 itself. There was no response from any reserved category candidate in pursuance of the 5th advertisement dated 31.05.1994. In such circumstances, the petitioner is right in contending that she should have been regularised on basis of the existing circulars / G.Rs and such accrued right cannot be defeated by reference to G.R dated 05.12.1994, as otherwise the same would amount to giving a retrospective effect to the G.R dated 05.12.1994. Admittedly, the G.R dated 05.12.1994 has not been given any retrospective effect by the State, assuming that it is possible for the State to give retrospective effect to the Government Resolution of this nature. In any case the issue of retrospectivity of G.R dated 05.12.1994 is no longer res integra. In somewhat similar facts and circumstances, a Division Bench of this Court in the case of Sanjay Raghunath Gadakh (supra) ruled that if by the time G.R dated 05.12.1994 was published, the 5th advertisement as required by the G.R dated 25.01.1990 (as adopted by the University vide circular dated 07.07.1990) had already been published, then the G.R dated 05.12.1994 shall not be applicable, as otherwise the same would amount to giving a retrospective effect to the G.R dated 05.12.1994. Relevant observations are quoted herein below for ready reference:

"15. Mr. Mandlik, learned Counsel appearing for the 1st respondent confirms that no list of backward class candidates was received by the 1st respondent though efforts were made by the 1st respondent. In our opinion there is sufficient compliance of the requirements by the 1st respondent.

16. So far as the aspect of inter-changeability is concerned in the said letter dated 31st December 2004 it is stated that the appointment of the petitioner is of the period prior to the year 1994. G.R. Introducing the receipt of inter-changeability is dated 5th December 1994. By the time this G.R. Was published the 5th advertisement as required by G.R dated 25th January 1990 had already been published. Therefore, this G.R. Dated 5th December 1994 is not applicable to the petitioner's case.

17. On a fair reading of this G.R we are of the opinion that this G.R cannot have retrospective effect at least in the peculiar facts and circumstances of this case where the petitioner is working with the 1st respondent since the year 1990 and by the time this G.R came about 5 advertisements were already issued as per G.R dated 25th January 1990. However no backward class candidate was available. It is important to note that as per the G.R which was applicable during the relevant period the post had to be dereserved prior to the coming into force of G.R dated 5th December 1994. The State by its inaction has allowed time to pass by. It cannot now take up a stand that in view of G.R dated 5th December 1994 bringing in concept of interchangeability the said post cannot be dereserved. State has to adopt a fair approach while dealing with people."

18. Further, no material has been produced on record by the University or the State to indicate that the G.R dated 05.12.1994 has in fact been adopted by the University. In any case the material on record establishes that even after 31.05.1994 and upto 25.12.2003, the College went on issuing advertisements in respect of each of the academic years and despite the same there were no applications from reserved category candidates for the post of Lecturer (Chemistry). As seen earlier, this Court as well as the Supreme Court upon being satisfied that there has been substantial compliance has directed the relief of dereservation and consequent regularisation. This is not a case where any malafides have been alleged by the University or the State against either the petitioner or the College. All that is pointed out are some discrepancies, in dates and the text of some of the advertisements. On basis thereof, it cannot be said that there is no substantial compliance with the procedure prescribed under the Circulars and G.Rs pertaining to dereservation and regularisation. We are also satisfied the College has indeed made efforts to fill up the reserved posts with reserved category candidates. The petitioner has discharged duties as Lecturer (Chemistry) in all for over 22 years and she is due to attain age of superannuation in the year 2014. In the circumstances, we are of the opinion that the post needs to be dereserved and the services of the petitioner be regularised w.e.f. from the date of her initial appointment along with consequential benefits like confirmation w.e.f. 23.07.1992 as also other benefits.

19. The contention of Ms. Uma Palsuledesai based upon conditions 5 and 6 of circular dated 31.10.2007 regards promotion / NOC from the State to fill up the post consequent upon increase in workload cannot be accepted in the peculiar facts and circumstances of this case. This is not a case where the College of its own accord has filled in the post by reinstating the petitioner. The petitioner was reinstated to the post in pursuance of directions issued by the College Tribunal. Besides in the light of our view that the post held by the petitioner needs to be dereserved and the petitioner's services regularised from the date of her initial appointment, the objection based upon the circular dated 31.10.2007 looses significance and does not warrant any further consideration.

20. In this view of the matter, it is not necessary to address the contentions and response in writ petition no. 2463 of 2012 in great details. However, we are unable to accept the submissions of Mr. Desai that the judgment and order dated 04.10.2011 passed by the College Tribunal per se binds the State and the University in so far as directions of regularisation and continuity of appointment are concerned. This is because the directions have been issued only qua the College, even though the University and the State were parties in the appeal. In fact the issue before the College Tribunal was whether the termination of petitioner's service vide letter dated 02.01.2008 was legal and valid. The College Tribunal however, whilst adjudicating upon this limited issue travelled further and granted the petitioner permanency from the date of her initial appointment, which was not appropriate, more so since the issue of dereservation and grant of regularisation was pending before this court in writ petition no. 1940 of 2006. Now that we are allowing writ petition no. 1940 of 2006, there may be no need to interfere with the conclusion recorded or the relief granted in judgment and order dated 04.10.2011 passed by the College Tribunal. In any case the College is bound to comply with the directions contained in the judgment and order dated 04.10.2011, particularly since the College has not even chosen to challenge the same. On the same principle the petitioner is also bound by her statement that she shall not claim any salary or other emoluments for the period between 03.01.2008 and 08.11.2011 i.e. the date on which the petitioner was permitted to resume her duties at the College.

21. We are informed that the petitioner is due to retire from service in the year 2014. The petitioner has already worked in the post of Lecturer (Chemistry) from 1990 till date (save and except the interregnum between 03.01.2008 and 08.11.2011). The judgment and order dated 04.10.2011 passed by the College Tribunal has directed reinstatement of the petitioner along with continuity. In such circumstances, the break, if any, between 03.01.2008 to 08.11.2011 deserves to be condoned. However, the petitioner shall not be entitled to claim any salary or other emoluments for the said period, in view of her statement in College Appeal No. 80 of 2008. This period however shall be counted for all other purposes and benefits. The benefit of dereservation and regularisation shall be personnel to the petitioner.

22. Upon the petitioner's retirement in 2014, the post of Lecturer (Chemistry) at the College is to revert as a reserved post. The College has rightly accepted this position and in any case it is so ordered.

23. Accordingly, in the facts and circumstances of this case, respondents are directed to dereserve the post of Lecturer (Chemistry) held by the petitioner w.e.f. 23.07.1990 and to regularise the petitioner's services in the said post w.e.f. 23.07.1990 along with all consequential benefits including but not restricted to confirmation w.e.f. 23.07.1992. The respondents are directed to pay salary and other emoluments to the petitioner, including the arrears from 08.11.2011 within a period of twelve weeks from the date of this order. The petitioner has stated that the senior's scale has already been awarded to her and her claim is restricted to selection grade. The respondent shall examine as to whether the petitioner is entitled to selection grade on the basis that her services are to be regularised w.e.f. 23.07.1990 and take appropriate decision in that regard within aforesaid period of twelve weeks. Rule is accordingly made absolute to the aforesaid extent in both the writ petitions. There shall be no order as to costs.

Ordered accordingly.