Deepa Gourang Murdeshwar Katre Vs. The Principal, V.A.V. College of Arts.
&Amp; Ors  Insc 125 (13 February 2007)
Dr. AR. Lakshmanan & Altamas Kabir
(Arising Out of SLP (C) NO. 22356-22358 OF 2005) Dr. AR. Lakshmanan, J.
The above three Special Leave Petitions were filed against the judgment and
final order dated 13.4.2005 in Writ Petition No. 1914 of 1999, final order
dated 5.5.2005 passed by the High Court of Judicature at Bombay in Review
Petition No. 65 of 2005 and final order dated 3.8.2005 passed by the High Court
of Judicature at Bombay in W.P. No. 4851 of 2005 whereby the High Court
dismissed the writ petitions and review petition filed by the Appellant.
Background facts The Appellant applied for appointment in the college,
respondent No.1, on the post of English Lecturer, pursuant to a vacancy which
had arisen by leaving of an English Lecturer after the Ist term. The appellant
was duly interviewed by the local selection committee and was appointed as full
time lecturer in English on 22.11.1993 on temporary basis for 2nd term subject
to the approval of the University. The appellant joined as Lecturer and has
been working since then.
The College advertised a number of vacant posts for the academic year
1994-1995 on 29.4.1994 by way of newspaper publication. One of the posts was
the post of English Lecturer, but the same was reserved for Scheduled Caste
candidate. The advertisement, however, provided that in case the backward class
candidate was not available, then a candidate from the general category would
be considered for appointment on year to year basis. No backward class
candidate applied for the said post. Three general category candidates applied
out of which the Appellant was selected and recommended for appointment by the Six-Members'
Selection Committee on 11.7.1994.
Vide appointment letter dated 15.7.1994, the Appellant was appointed as full
time Lecturer in the college for one academic year as per the advertisement.
The problem of non-filling up of reserved seats in Government and
Government-aided colleges were subject matter of various decisions by the
Government. Earlier there was a Government Resolution of 25.1.1990 which
provided that if no backward class candidate is available for five years then
the post should be de-reserved. By way of the Government Resolution dated
19.1.1995, the Government took a decision that in all Government-aided
colleges, the reserved post of a Lecturer should be advertised for five years.
Thereafter, in the 6th year, an advertisement should be issued with
interchangeability clause and only if no eligible backward candidate is
available, the post should be de-reserrved and the person who has been
occupying the post on temporary basis should be considered for regular
appointment on the post. The Mumbai University vide order dated 17.7.1996
implemented the said decision as would be clear from para 3 of its order dated
17.7.1996. The said circular was applicable to the existing posts also.
Even in the 2nd academic year i.e. 1995-1996, the post of English Lecturer
was advertised for filling up the same from Scheduled Caste Category. No
backward class category candidate reported for interview to fill up the said
post of the English Lecturer. The Appellant was, therefore, once again
appointed on temporary basis on the said post for a period of one academic
In the third academic year i.e. 1996-1997 the post of English Lecturer was
again advertised as being reserved for Scheduled Caste candidate. Applications
were called for. However, no scheduled caste category candidate applied for and
reported for interview.
Therefore, the Appellant was once again appointed on temporary basis on the
said post for one academic year on 19.7.1996.
For the 4th academic year again the post of Lecturer of English was
advertised by College as reserved post for Scheduled Caste Candidate on
28.4.1997. However, no scheduled caste category candidate applied for and
reported for interview. Therefore, the appellant was once again appointed on
temporary basis on the said post for one academic year on 24.7.1997.
For the 5th academic year i.e. 1998-1999, the post of English Lecturer was
again advertised as reserved post for Scheduled Caste candidate. It was clearly
mentioned in the advertisement that this was the 5th advertisement.
However, no Scheduled caste category candidate applied for and reported for
interview. Therefore, the appellant was once again appointed on temporary basis
on the said post for one academic year on 15.7.1998.
Thus as per Government resolution and the University circular, 6th
advertisement with interchangeability clause had to be issued. The draft of the
said advertisement for the academic year 1999-2000 was forwarded by the College
to the University on 3.4.1999. The University duly vetted the said draft
advertisement and returned the same to the College on 7.4.1999 for publication.
Accordingly, the 6th advertisement was published by the College in Maharashtra
Times on 13.4.1999 clearly mentioning that the post was being advertised for
the 6th time on interchangeability basis as per Government Rules.
However, no Scheduled Caste candidate applied for and reported for
The report of the Selection Committee Meeting was forwarded by the College
to the University on 30.7.1999 clearly mentioning that no backward class
category candidate had reported for interview in English language.
The nil report for appointment to the post of lecturer in English was
accepted by the University vide letter dated 1.11.1999.
In the meantime, the appellant had approached the High Court of Bombay by
way of Writ Petition No. 1914 of 1999 for confirmation of her services as no
candidate from backward class had appeared for even an interview after six
years. Vide order dated 12.7.1999, a Division Bench of the Bombay High Court
granted interim relief to the appellant i.e. the appellant was not to be
terminated from services.
In the meantime, a similar matter of one Mrs.
Madhuri Srivastava came up for hearing before the Bombay High Court. The
Bombay High Court vide order dated 1.2.2001 observed that since no backward
class category candidate had turned up for the interview, in terms of the
circular of the University dated 17.7.1996, the lecturer who was working on the
post for nine years was liable to be regularized. Just one day before the final
hearing of the writ petition, the University filed an affidavit to the effect
that the 6th advertisement had yet not been published in terms of the
University Circular dated 17.7.1996 and hence the post cannot be de- reserved. Said
stand of the University was most unfortunate as not only the draft
advertisement had been vetted by the University, but subsequently the report of
the Selection Committee was also accepted by the University.
According to the learned counsel appearing for the appellant, the affidavit
was made available to the appellant only on the date of the hearing, the
appellant could not dispute the correctness of the same and hence, in such
circumstances, the Bombay High Court passed the impugned order directing the
publication of the 6th advertisement. The directions issued by the High Court
read as follows:
"Respondent No.1 within four weeks from today to forward to
respondent No.2 a draft advertisement based on interchangeability. On the draft
advertisement being received and after verifying the same and if earlier there
had been five advertisement already issued by the University to permit the
respondent No.1 to issue the advertisement based on interchangeability.
If on the advertisement being issued
no candidate from reserved category is available, respondents to permit the
petitioner to continue in the post presently held by her.
After the sixth advertisement, if no
candidate belonging to the backward class is available, respondent No.1 to send
representation to respondent No.3 to de-reserve the post. The University after
complying with the procedure to forward the same to respondent No.4.
Respondent No.4 considering the clause for de- reservation and
considering the judgment of this court in W.P. No. 1914 of 1999 dated 13th
April, 2005 which has taken a view that it is not necessary that after
de-reservation, that post must be re-advertised but it is open to the
Government to relax the condition, to take the appropriate decision and communicate
the same to respondent No.3.
The Petitioner pursuant to the sixth
advertisement if no backward class candidate is selected to be continued and the
petitioner's services will not be terminated. If the order be adverse it is not
to be acted upon for a period of twelve weeks after the communication of the
decision of respondent No.4 by respondent No.1 to the petitioner.
Rule made absolute accordingly. There shall be no order as to costs.
Sd/- F.I. Rebello,J.
Sd/- S.P. Kukday,J."
It is relevant to mention here that on the very same day, the very same
Bench of the Bombay High Court disposed of two more writ petitions by two
similarly situated lecturers of the very same college. In both the cases, the
6th advertisement had been issued and since the teachers had been working for a
number of years, the High Court held that there was no need for fresh
advertisement and, therefore, directed that the petitioners in those writ
petitions, will be treated as permanent.
When the appellant came to know that an incorrect statement has been made by
the University that no 6th advertisement has been published, the appellant
filed Review Petition No. 65 of 2005 clearly pointing out the error apparent on
the record and the mis-statement by the University.
When the said review petition came for hearing on 5.5.2005, the University
made another incorrect statement that though the advertisement had been issued,
no interviews had been held because of the stay order of the High Court. The
High Court found that the 6th advertisement had been issued, but however,
wrongly found that the interviews were not conducted. As stated above, the
interviews were held on 5.7.1999 much before the interim order of the High
Court on 12.7.1999. The University had not taken this stand as the report of
the interview was sent to the University and the University accepted the said
report. The order dated 5.5.2005 passed by the High Court in Review Petition
No.65 of 2005 reads as follows:
"The review is based on the contention that six advertisements for the
post of Lecturer in English having interchangeability clause was advertised on
13.4.1999 and considering that directions given by this Court in the Judgment
dated 13.4.2005 requires to be reviewed.
We have considered the contention of the learned counsel for the Review
Applicant. We find that after advertisement was issued, petitioner approached
this Court by way of Writ Petition No. 1914 of 1999 on 12.7.1999 and interim
relief was granted in terms of Prayer Clause (g). Prayer clause (g) was to the
effect that the services of the petitioner should not be terminated and that
she should be allowed to continue. As such the Management could not have
proceeded with interview and by letter of 30.7.1999, considering the order of
this Court issued letter of appointment in favour of the Petitioner herein.
Considering the above, as the interviews could not be conducted in terms of
the sixth advertisement, we do not find this to be a fit case to review the
order dated 13.4.2005. With the above directions, application stands disposed
of. No order as to costs.
Sd/- S.P. Kukday,J."
When the appellant came to know even at the time of hearing of the review
petition an incorrect statement had been made, the appellant filed fresh Writ
Petition No.4851 of 2005. The College filed the counter affidavit bringing the
correct facts to the notice of the High Court.
However, the High Court refused to entertain the fresh writ petition on
3.8.2005 and passed the following order:
"CORAM: A.P. Shah & D.Y. Chandrachud,JJ.
3rd August, 2005 P.C The present petition is in the nature of a review of
the order passed by the Division Bench in Writ Petition No. 1914 of 1999. The
Petitioner, in fact, sought review of the said order by filing a review application
which came to be dismissed by the Division Bench by order dated 5th May, 2005.
It is not permissible for the petitioner to seek the same relief again by
filing a fresh petition. Petition is, therefore, dismissed.
Sd/- Judge Sd/- Judge"
The appellant filed the present appeal by way of three special leave
petitions challenging all the three orders passed by the High Court including
the first order dated 13.4.2005 passed in W.P. No. 1914 of 1999.
This Court vide order dated 24.10.2005 issued notice to the respondent and
granted status quo.
During the pendency of the special leave petitions, the University vide its
letter dated 6.9.2005 acknowledged the facts that it would not be proper to
issue a fresh advertisement and, therefore, requested the College to send a
proposal for de-reservation of the post. The letter dated 6.9.2005 reads as
" UNIVERSITY OF MUMBAI No. (29)/6115/2005 Dated: 6th September,2005 To
The Principal Annasaheb Vartak College of Arts, Commerce and Science, Vasai
Road, District Thane(W)-401 202 Sub : Approval for advertisement Madam, This is
in reference to your letter No.
AVC/Advt/292/2005-06 dated 18th May, 2005.
It is clear from the advertisement annexed to the aforesaid letter for the
post of Lecturer (English) was advertised with interchangeability clause on
13th April, 1999 in Maharashtra Times newspaper and accordingly interview was
also held on 5th July, 1999.
In view of the above, it would not be proper for issuance of one more
advertisement for the post of Lecturer (English). You are, therefore, requested
to submit a proposal for de-reservation of the said post in the format enclosed
herewith to the University. After receipt of the proposal, the same would be
scrutinized and sent to the State Government for further approval.
Yours truly, Sd/- illegible Vice-Chancellor (Special Branch)"
Thus it is seen that the University has now acknowledged that there is an
error in the order of the High Court and that the direction of the High Court
to issue 6th advertisement was based on wrong facts. The College vide letters
dated 1.10.2005, 22.6.2006 and 24.8.2006 requested for de-reservation of the
post which read as follows:
VIDYAVARDHINI'S Annasaheb Vartak College of Arts, Kedarnath Malhotra College
of Commerce &
E.S. Andrades College of Science Vasai Road West-401 202, Distt. Thane
No.DIR/7226/2005-2006 Dated 1.10.2005 To The Addl.Secretary Special Cell,
University of Mumbai Mumbai-400 032 Sub: De-reservation of Post : Mrs. D.G.
Murdeshwar Katre Lecturer in English Sir, That our college had forwarded a
proposal for de- reservation of the post held by Mrs. D.G. Murdeshwar-Katre,
Lecturer in English vide letter dated 6.5.2005 for necessary action at your
end. Pursuant to the telephonic conversation held on 30.9.2005 with your
office, we were requested to forward the necessary details in Form-A which is
It is requested that appropriate steps may be taken for de-reservation of
the post of Mrs. D.G. Murdeshwar Katre.
Thanking you, Yours truly, Sd/-illegible Principal Encl:- Form A"
"AVC/DER/202/2006-07 22/6/06 To The Registrar, University of Mumbai,
Mumbai-400 032 Sub: De-reservation of post-Mrs. D.G. Murdeshwar- Katre,
Lecturer in English Sir, I am forwarding herewith application along with
enclosures of Mrs. Deepa G. Murdeshwar Katre, Lecturer in English for
De-reservation of post.
I request you to look into the matter and do the needful.
Thanking you, Yours faithfully, (Dr. S.S. Kelkar) Principal Encl. As above
"VIDYAVARDHINI'S Annasaheb Vartak College of Arts, Kedarnath Malhotra
College of Commerce &
E.S. Andrades College of Science (Affiliated to the University of Mumbai)
AND Junior Colleges Vasai Road West-401 202, Distt. Thane
Ref.No.AVC/DER/1100/2006-07 Date: 24/8/2006 To The Dy. Registrar Spl. Cell,
University of Mumbai, Mumbai-400 001.
Sub: De-reservation of post: Mrs. D.G. Katre- Lecturer in English Sir, I
have to inform you that our Proposal for De-reservation of post of Mrs. D.G.
Murdeshwar Katre, Lecturer in English has been forwarded to your office vide
out letter No. AVC/DE- R/257/2005-06 dated 6/5/2005. The information in
Proforma 'A' has been forwarded vide our letter No. AVC/DER/1226/2005-06 dt.
1/10.2005. Zerox copies are enclosed herewith.
I request you to look into the matter and do the needful.
Thanking you, Yours faithfully, Sd/- (Dr. S.S. Kelkar) Principal Encl. As
However, because of the directions of the High Court in the impugned order
regarding issuing of 6th advertisement, the University has not forwarded the
proposal any further and is maintaining status quo.
We heard Mr. Gaurav Agrawal, learned counsel appearing for the appellant and
Mr. Ravindra K. Adsure, learned counsel appearing for the University and Mr.
Prashant Kumar, learned counsel appearing for the College.
Mr. Gaurav Agrawal, learned counsel appearing for the appellant submitted
that the High Court failed to consider that its first order dated 13.4.2005 had
been passed by relying upon a fraudulent mis-representation of the
respondent-University contained in the affidavit dated 12.4.2005 that the 6th
advertisement had not been issued, when the indisputable fact was that the said
advertisement had been issued as per the approval of the University itself on
13.4.1999. Therefore, learned counsel submitted that on this ground alone, the
order dated 13.4.2005 ought to have been recalled and the factum of issuing the
advertisement was in terms admitted at the time of hearing of the review
petition. It was further submitted that the High Court failed to notice that
pursuant to the advertisement dated 13.4.1999 interviews for the reserved post
of English Lecturer in the College (respondent No.4) were held on 5.7.1999 and
no candidate from the backward class had turned up for the interview. Likewise,
the High Court has not noticed that the College vide letter dated 30.7.1999 had
given a non-availability report in relation to interviews for the post of
English Lecturer and this report was accepted by the University on 1.11.1999.
Therefore, the submission that the interview could not be proceeded with in
view of the interim order of the High Court was patently not correct. It was
also submitted by learned counsel appearing for the appellant that the High
Court at the time of hearing the review petition was also mislead by the
respondent-University as an impression was given that no interviews had been
held pursuant to the advertisement dated 13.4.1999 which was clearly belied by
the documents of the University itself. It is clear that even the Bench hearing
the review petition had been mislead by the respondent-University by making a
false statement, the review order dated 5.5.2005 was vitiated by fraud and was
liable to be recalled by the High Court. It was also contended that the High
Court erred in dismissing the writ petition in a cursory manner by the impugned
order dated 3.8.2005 without appreciating the contentions raised by the
appellant which were fully supported by indisputable documents on record, which
documents emanated from the College and the University. The writ petition
clearly indicates how the High Court had been mislead by the false statements
made by the University and the High Court ought to have considered the
submissions made by the appellant.
The High Court, in our opinion, has erred in law rejecting the writ petition
without considering the merits of the matter though the merits of the matter
were specifically argued by the appellant and the mis- representations made by
the University were brought to the notice of the High Court.
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 regularized on this post after de- reserving
the same and if the appellant is now thrown out, the appellant would be age
barred for any other service.
We are of the opinion that the case on hand is a fit case for interference
by this Court in exercise of the jurisdiction under Art. 136 of the
Constitution of India in view of the misrepresentations made by the respondent-
University and considering the long service rendered by the appellant to the
respondent-College at a time when no other candidate was willing to take the
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.
It is well settled by catena of decisions of this Court that if a case of
fraud or mis-representation of such a dimension is discovered that the very
basis of the order passed by a Court of law is affected, the Court can recall
its order. The power to recall an order founded upon fraud and mis-representation
is an inherent power of the Court.
The present case is one such instance where the High Court has mislead by
incorrect representations made by the University at the time of hearing of the
writ petition and the review petition. The question was whether the post
occupied by the appellant was entitled to be de-reserved as for six years no
backward class candidate was available.
We have already noticed that the statement made before the Court was not
correct. The records also reveal that the interviews for the post of English
Lecturer pursuant to the 6th advertisement were made on 5.7.1999 and no
candidate belonging to the backward class turned up for interview. The
University was fully aware of this as the University had on 1.11.1999 accepted
the non-availability report. However, it mislead the Review Bench of the High
Court by sating that no interviews were held. The review order dated 5.5.2005
was totally vitiated due to fraud which compel the appellant to file a fresh
writ petition challenging the order of the University of Bombay calling for the
6th advertisement. However, the High Court by the impugned order dated 7.8.2005
dismissed the writ petition by relying on the dismissal of the earlier writ
petition and review petition without appreciating that the previous orders had
been founded upon fraudulent mis- representations made by the University and
the said orders were liable to be recalled.
When fraud was clear on the fact of the record, the High Court erred in law
in dismissing the writ petition of the appellant.
Learned counsel appearing for the respondents was not able to controvert the
factual statements made by the learned counsel appearing for the appellant at
the time of hearing. The arguments made by the learned counsel appearing for the
appellant are fully supported by the records filed before the High Court and
also the annexures and material placed before us. We, therefore, have no
hesitation in accepting the arguments advanced by the learned counsel appearing
for the appellant and allowing the appeal.
In view of the letter of the University dated 6.9.2005 in which the
University had acknowledged that the 6th advertisement had indeed been issued
and it would not be proper to issue a 6th advertisement, the basis of the
impugned order is incorrect and, therefore, the same is liable to be set aside
on this ground. In such circumstances, the case of the appellant would be
similar to that of Mrs. Bina Patil and Mrs. Madhuri Srivstava and since the
appellant has worked continuously for the last 13 years, it is a fit case for
this Court to pass a similar order as in the matter of aforesaid two persons.
We, therefore, allow the appeal and set aside the orders passed by the High
Court with a direction to the respondents to regularize the services of the
appellant on the post in question after de-reserving the same.
However, there shall be no order as to costs.