Ajyurvidya
Prasarak Mandal & Anr Vs. Mrs.Geeta Bhaskar Pendse & Ors [1991] INSC
101 (12 April 1991)
Sawant,
P.B. Sawant, P.B. Fathima Beevi, M. (J)
CITATION:
1991 SCR (2) 282 1991 SCC (3) 246 JT 1991 (2) 209 1991 SCALE (1)706
ACT:
Bombay
University Act, 1974--Sections 11,77--Government resolutions and university
directions on reservation/dereservation--Reservation in appointment of college
teachers in favour of backward classes-- Dereservation thereof--Procedure to be
followed-- Appointments without following the procedure--Validity of filling up
of the post--Directions issued.
HEAD NOTE:
For
the academic year 1983-84, there was a vacancy for the post of Lecturer in
Sanskrit, in the College managed by the appellant-Trust. The said post was
reserved for candidate from backward classes. The first Respondent, not
belonging to any backward class, applied for the post, even before the
appellant-Trust issued an advertisement. An advertisement was issued later
without mentioning the academic year for which the appointment was to be made,
though admittedly it was for the academic year 1983-84. The advertisement
specifically stated that the post was reserved for a backward class candidate
and if no such candidate was available, a candidate from the non-backward classes
may be appointed for one year. Within a month, the advertisement was repeated
and yet no application was received from any candidate from backward classes.
Hence the appellant-trust appointed the First Respondent, who had earlier
applied, from 19.3.84 till 30.4.1984.
Again,
an advertisement was issued in 1984 for the academic year 1984-85. And there
was no response from any candidate belonging to backward classes. The First
Respondent was interviewed and appointed for one year, till 19.4.1985.
For the
academic year 1985-86, no advertisement was issued. The First Respondent was
again appointment to the said post from July 10, 1985 to April 30, 1986. Thereafter her services were terminated after issue of
notice.
No
appointment was made to the said post for the academic year 1986-87. However,
on 1.5.1987, an advertisement was issued inviting applications for the said
post from candidates belonging to all classes, 283 dereserving the post.
Respondents 1 and 5 and another candidate, all belonging to non-backward
classes applied.
The
5th Respondent was selected and appointed to the said post.
Thereafter,
in respect of non-payment of salary for certain period and for setting aside
her termination order, the First Respondent approached the College Tribunal.
The Tribunal allowed her claim for salary for the relevant periods, but
dismissed her claim for reinstatement, holding that her appointment was purely
temporary and her claim that she should be deemed to have been confirmed
because she had served for two academic years was not established in the
circumstances of the case.
Against
the Tribunal's decision, the First Respondent approached the High Court by way
of a Writ Petition. The High Court allowed the Writ Petition holding that
notwithstanding the break in her actual appointment, she was continuously in
employment from March 19, 1984 to April 30, 1986, and hence entitled to the
benefit of the resolutions of the State Government and the University
directions which, according to the High Court, laid down that an employee who
was appointed for two consecutive academic years must be deemed to have been on
probation right from the time of the first appointment and, therefore, she
should be confirmed in the post. The benefit of full back wages, seniority etc.
was also ordered.
Aggrieved
by the Judgment of the High Court, the appellants preferred the present appeal,
by special leave.
Allowing
the appeal, this Court,
HELD:
1. The appellant-Trust had violated the directions of the Government as well as
of the University in the appointments in question as a result of which neither
the appointment of the 1st respondent nor that of the 5th respondent can be
said to have been validly made. Both the appointments were made without
following the Government Resolutions and the University directions in the
matter of reservation of seats for backward classes which are binding on the
college. Unfortunately, these aspects of the matter which are evident from the
record were lost sight of both by the Tribunal and the High Court. [287G-H;288A]
2.1. Admittedly, the selection of the 5th respondent was made by a committee
where neither the nominee of the Vice-Chancellor nor the expert nominated by
the University nor the nominee of the Director of 284 Education (Higher
Education), i.e., the Director of Ayurveda, was present. The selection so made
was, therefore, not valid. [289F]
2.2
There is nothing on record to show that when the appellant Trust forwarded its
report on appointment of the 5th respondent, it apprised the University of the absence
of the expert at the time of his selection. The University has not reserved the
power to relax the rule and permit selection without the presence of the
expert. There is nothing in the University's letter to show why the University
had condoned the absence of the expert. The approval given by the University
being in ignorance of the true state of affairs and in breach of the rule, is
legally ineffective and cannot validate the appointment. [289H,290A- B]
3.
Admittedly, the post was reserved for the academic year 1983-84. The Trust had
not given three advertisements within six months for any of the academic years
1983-84, 1984-85 and 1985-86. On the other hand, for the academic year 1983-84,
it issued only two advertisements. It is not known as to why even these two
advertisements were not issued at the beginning of the said academic year. As
regards the second academic year 1984-85, it issued only one advertisement, and
no advertisement was issued for the academic year 1985-86. The initial appointment
of the Ist respondent for the academic year 1983-84 and her continuation for
the subsequent academic years, viz., 1984- 85 and 1985-86 was thus in breach of
the Government resolutions and the University direction and, therefore,
illegal. Similarly, since the appointment of the 5th respondent was made
without following the procedure prior to dereservation, viz., three
advertisements repeated every year for all the three academic years for which
the post was to be reserved, his appointment to the post, as if the post stood
legally dereserved, was also illegal since the post could not have been dereserved
to make it available for a non-backward class candidate.[294B-E]
4.
Even assuming that her initial appointment and subsequent continuation of service
was valid, the First Respondent would not be entitled to the benefit of the
University direction of March
11, 1987 because her
entitlement to the vacation salary does not extend her period of employment up
to the end of the vacation. That is a perquisite which is conferred on every
teacher who has served during the academic year. It has no connection with the
continuation of the employment since even those teachers whose services are
validly terminated before the beginning of the vacation period are given the
benefit of the salary of the vacation period. [295E-F] 285
5. The
appellant-Trust shall advertise the post three times sufficiently in advance
and in any case within six months from the close of the present academic year,
viz., 1990-1991 as a post reserved for the backward class candidate, and if no
application is received from a suitable backward class candidate, the post will
be deemed to have been dereserved. The Trust will then proceed to fill in the
same by a candidate belonging to non-backward classes. This fact may be made
clear in all the three advertisements. The 5th respondent will be entitled to
apply for the post notwithstanding the fact that he has become overaged. If he
is selected on the basis of his other qualifications, the Selection Committee
shall relax in his favour the condition with regard to the maximum age. If he
is appointed to the post, his appointment will be a fresh one and his past
service will not count for the probation period. The Trust shall constitute a
proper Selection Committee according to the rules. [296D-F]
6. To
overcome the hardship to the students, the 5th respondent may be permitted to
teach as a purely temporary teacher till the process is completed for the
academic year 1991-92. [297C]
CIVIL
APPELLATE JURISDICTION: Civil Appeal No.1779 of 1991.
From
the Judgment and Order dated 10-4-1990 of
the Bombay High Court in W.P.No.1944 of 1987.
M.C.Bhandare,
CPU Nair, Ms.Kamini Lao and M.N.Shroff for the Appellants.
V.N.Ganpule,
S.K.Agnihotri, A.S.Bhasme and Ms.H.Wahi for the Respondents.
The
Judgment of the Court was delivered by Sawant,J. Leave granted.
2.
Appellant No.1 is a Trust which runs and manages an Ayurveda College in Bombay. Appellant No.2, is the Principal
of the College. There was a vacancy in the post of a lecturer in Sanskrit for
the academic year 1983-84 which was admittedly reserved for a candidate from
the backward classes. The Ist respondent had applied for the said post on 19th September, 1983 even before the appellant-Trust had
invited applications by advertising the vacancy as it was required 286 to do.
Subsequently, on October
13, 1983, the
appellant- Trust issued an advertisement inviting applications for the post
without mentioning for which academic year the appointment was to be made. The
parties before us agree that it was for the academic year 1983-84. In the
advertisement, it was specifically mentioned that the post was reserved for a
backward class candidate and if no suitable candidate from the backward classes
was available, a candidate from the non-backward classes may be appointed for an
year. It appears that within a month thereafter on the 12th November, 1983, a second advertisement was issued repeating the
earlier advertisement. No application was received from any candidate from the
backward classes in response even to this advertisement, and hence, the Ist
respondent who had already applied as stated earlier, was appointed to the said
post for the period from March
19, 1984 till April 30, 1984. The total period of service put in
by the Ist respondent for the said academic year was 41 days. On April 28, 1984, the appellant-Trust issued an
advertisement for the same post repeating the contents of the earlier
advertisement, but for the academic year 1984-85. The applications were invited
by 30th April, 1984. No candidate from the backward
classes applied in response to the said advertisement. The interview was held
on June 30, 1984 and the Ist respondent was
appointed for the period from 21st August, 1984
to 19th April, 1985.
3. In
the third academic year 1985-86, admittedly no advertisement was issued and no
applications from the candidates including candidates from the backward classes
were invited. However, the Ist respondent was appointed to the post from July 10, 1985 to April 30, 1986. Thereafter the Ist respondent's services were terminated w.e.f.
30th April, 1986 by a notice dated March 12, 1986.
4. No
appointment was made to the said post for the academic year 1986-87. On May 1,1987, the Trust issued advertisement inviting applications
to the said post from candidates belonging to all classes since, according to
the Trust, the post was dereserved during the said period. Three candidates
belonging to the non-backward classes including the Ist respondent and the 5th
respondent applied for the post and the 5th respondent was selected and
appointed to the same.
5. It
appears that the Ist respondent was not paid salary for the summer vacations
following the academic years 1984-85 and 1985-86. She was also not paid salary
from November 1985 to April 1986. She approached the College Tribunal praying
for salary for (i) November 1985 to April 1986, and (ii) for the summer
vacations following 287 academic years 1984-85 and 1985-86, i.e., for the
months of May and part of June 1985, and May and part of June 1986, and (iii)
for setting aside her termination of service and for reinstatement. The
Tribunal allowed her claim for the salary for the relevant periods, but
dismissed her claim for reinstatement holding that her appointment was purely
temporary and her claim that she should be deemed to have been confirmed
because she had served for two academic years was not established in the
circumstances of the case. This decision was delivered by the Tribunal on December 9, 1986.
As
stated earlier, during the academic year 1986-87, no appointment was made to
the said post and it was subsequent to this decision that an advertisement was
issued calling for applications from candidates belonging to all classes and
5th respondent was appointment to the said post.
Against
the decision of the Tribunal the Ist respondent approached the High Court under
Article 226 of the Constitution, and the High Court held that notwithstanding
the break in her actual appointment, she was continuously in employment from March 19, 1984 to April 30, 1986. She was, therefore, entitled to the benefit of the
resolutions of the State Government and the University of Bombay dated
September 29, 1986 and February 27, 1987 respectively which, according to the
High Court, laid down that an employee who was appointed for two consecutive
academic years must be deemed to have been on probation right from the time of
the first appointment and, therefore, confirmed in the post. The High Court,
therefore, allowed her petition and directed the appellants to reinstate her
forthwith in the post and also to treat her as if she had been in continuous
employment from March
19, 1984 with the
benefit of full back wages, seniority etc. The High Court also directed the
University, the Director of Ayurveda, Maharashtra and the State of Maharashtra who were respondents 3,4 and 5
respectively to the petition, and who are respondents 2,3 and 4 to the present
appeal respectively, to make appropriate sanctions including grant of money, if
necessary. The High Court further granted cost and directed compliance with the
orders by the appellants within six weeks from the date of its order, which is April 10, 1990.
6.
Although various contentions have been raised we find that it is not necessary
to go into them. According to us the appellant-Trust has violated the
directions of the Government as well as of the University in the appointments
in question in two major respects, as a result of which neither the appointment
of the Ist respondent nor that of the 5th respondent can be said to have been
validly made.
Unfortunately,
these aspects of the matter which are evident from the record 288 were lost
sight of both by the Tribunal and the High Court.
The
result has been that the illegalities which are patent on the face of the
record have been perpetuated.
7. The
Government of Maharashtra had issued a Govt. resolution No.USG.
1177/129387/XXXII (CELL) on October 25, 1977 prescribing conditions of service
as shown in Appendix III to the resolution. By a further resolution of April 3, 1978, Government made it clear that the
revised scales of pay which were sanctioned by the resolution of October 25, 1977 could be implemented only after
statutes had been duly made by the University. Since the making of the statutes
was to take some time and the revised scales of pay recommended of the
University Grants Commission were to be effective from January 1, 1973 as laid
down in the GR of October 25, 1977, the Vice Chancellor exercised his powers
conferred upon him under Section 11(6)(b) of the Bombay University Act 1974
(hereinafter referred to as the "Act") and issued his direction
No.192 of 1978 on 7th June, 1978. This direction, among other things, laid down
the mode of recruitment of the teachers and principals, as follows:
"Futuer
recruitment to posts of Teachers and Principals of colleges shall be made
through a Selection Committee, the composition of which is specified in the
terms and conditions (Appendix II)." Appendix II states as follows:
"
Terms and conditions attached to the revised scales of pay.
(i) x x
x x x x x x (ii) All appointments of teachers in colleges shall be made on
merit and on the basis of all India
advertisement. The qualifications prescribed for the posts should essentially
be related to the academic attainment in the subject concerned and should not
be linked with language or other regional consideration. Appointment should not
be made on communal or caste consideration. The constitution of Selection
Committee for recruitment to the posts of lectures in a college should be as
follows:
(a)
Chairman, Governing Body of the College or his nominee;
289
(b) a nominee of the Vice-Chancellor.
(c) one
expert to be nominated by the University.
(d) one
nominee of the Director of Education (Higher Education).
(e)
Principal of the college; and (f) Head of the Department concerned of the
college.
No
selection shall be considered valid unless at least one expert is present. The
recommendations of the Selections Committee shall be subject to the approval of
the Vice-Chancellor.
* * *
* * * * * (Emphasis Supplied)
8. The
effect of the aforesaid government resolutions and the University directions is
(a) that all appointment of teachers in colleges have to be made on merit and
on the basis of all India advertisement;(b) that the appointments have to be
made by a Selection Committee which consists, among others, of nominee of the
Vice-Chancellor, an expert to be nominated by the University and a nominee of
the Director of Education (Higher Education). No selection will be considered
valid unless at least one expert is present for the selection.
9.
Admittedly, the selection of the 5th respondent was made by a committee where
neither the nominee of the Vice- Chancellor nor the expert nominated by the
University nor the nominee of the Director of Education (Higher Education),
i.e., in the present case of the Director of Ayurveda was present. The
selection so made was, therefore, not valid. Shri Bhandare, the learned counsel
for the appellant-Trust Pointed out to us the letter of June 6, 1989 sent by
the University of Bombay according approval to the appointment of the 5th
respondent as a lecturer in Sanskrit on probation from 2nd July, 1987 and
contended that in view of the said approval the invalidity of the appointment,
if any, on account of the absence of the expert in the Selection Committee,
should be deemed to have been condoned.
We are
not impressed by this contention. In the first instance, there is nothing on
record to show whether when the appellant-Trust forwarded its report on
appointment of the 5th respondent, the Trust had apprised the 290 University of
the absence of the expert at the time of his selection. Secondly, the
University has not reserved the power to relax the rule and permit selection
without the presence of the expert. There is nothing in the University's letter
to show why the University had condoned the absence of the expert. It is,
therefore, obvious that the approval given by the University being in ignorance
of the true state of affairs and in breach of the rule is legally ineffective
and cannot validate the appointment.
10.
There is further a common illegality in the appointment of both the 1st and the
5th respondent which arises on account of the failure to follow the Government
Resolutions and University directions in the matter of reservation of the seats
for the backward classes, which are binding on the College.
11. On
30th March 1981, the Government of Maharashtra passed a resolution in exercise
of the powers conferred on it under sub Section (2) of Section 77- C of the Act
issuing instruction to all the non-agricultural Universities in regard to the
reservation of posts to be made in favour of Scheduled Castes and Scheduled
Tribes while making appointments to teaching and non-teaching posts in the
University affiliated colleges and recognized institutions.
The
reservation prescribed was as follows:
(1)
Scheduled Castes 13 p.c.
(2)
Scheduled Tribes 7 p.c.
(3)
Nomadic Tribes & Vimukta Jatis 4 p.c.
Total
--------- 24 p.c.
That
resolution further says that the various orders contained in the booklet
"Reservation and other concessions in Government service for backward
classes" will be applicable for recruitment to the teaching and
non-teaching posts reserved for backward classes in the University and the
affiliated colleges and recognized institutions subject to the following
modifications in regard to recruitment to the teaching posts. The
modifications, among other things, were as follows:
"Similarly,
at any given time of recruitment to the teaching posts, only the total number
of reserved vacancies and the sections from which they are to be filled in
should be 291 determined. It would be enough if the require percentage is
fulfilled as a whole and not with reference to any particular post. If the
reserved vacancies cannot be filled, then so many posts as cannot be filled in
may be kept vacant for six months and should be again advertised thrice. Even
after readvertising the posts 3 times if suitable candidates belonging to backward
classes do not become available, they may be filled in by candidate belonging
to the open category." "For giving effect to the aforesaid
instructions, it will be necessary for the Universities to make statutes under
Section 77C(1) under their respective Universities Acts of 1974. For ensuring
immediate implementation, the Vice-Chancellors of the Universities, under
clause (b) of Section 11(6) of the respective Universities Act of 1974."
(Emphasis supplied)
12. By
its subsequent resolution of October 20, 1983, the Government of Maharashtra
clarified its earlier resolution of March 30, 1981 and stated as follows:
"1.
x x x x x x x x
2.
After reconsideration of the above decision, it is now directed that if
suitable candidates cannot be found to fill posts reserved for backward classes
in Universities, affiliated colleges and recognized institutions, those posts
should be temporarily filled with candidates belonging to non-backward classes
for one academic year. But as mentioned in the resolution the appointment of a
non-backward class candidate to a reserved vacancy should be made only in the
event of failure to find a backward class candidate even after the post has
been advertised thrice.
3. x x
x x x x x x" (Emphasis supplied)
13.
Thereafter a further resolution was issued by the Government on September
29,1986 on the subject stating therein that it had come to the notice of the
Government that some institutions had not 292 implemented the instructions
contained in the earlier resolutions of March 30, 1981 and of October 30, 1983.
The Government therefore directed that the said directions should be
implemented strictly. This resolution further directed that the non-backward
class candidates who were being repented for the second and third academic years
when backward class candidates were not found for appointment for the first
academic year, should not be called for interview every year and that the
candidates belonging to the non-backward classes should be appointed for the
second and third academic year also, without calling them for interview. It is
further stated in the said resolution that, similarly, as soon as the reserved
post is dereserved, the appointed candidate should be confirmed in that post
from the date of dereservation subject to all other terms and conditions. It
was also directed that necessary statutes should be made by the University in
accordance with the provisions of the Act and for ensuring immediate
implementation, the vice- Chancellor should issue directions under clause (b) of
Section 11(6) of the Act.
Pursuant
to the said resolution of the Government, the Vice-Chancellor of the University
issued direction on March 11, 1987 as follows:
"x
x x x x x x (1) That the reserved teaching post which is filled in by
appointment of a suitable non-backward class candidate in the first year by
following the prescribed procedure of selection shall be advertised again for
the second and third years for inviting applications only from persons
belonging to Scheduled Castes, Scheduled Tribes, Denotified Tribes and Nomadic
Tribes. However, applications may also be invited from persons belonging to
non- backward class if the suitable non-backward class candidate already
appointed in the first year is not available for reappointment in the second or
third year and or his services are required to be terminated on account of
unsatisfactory performance of work in the first year;
(2)
That if in the second year, in response to the advertisement, a backward class
candidate is not available, then the suitable non-backward class candidate
already appointed in the reserved post shall not be required to appear for
interview before the Selection Committee again for the second 293 and: or third
year (s) but that he shall be reappointed in the reserved post, if he is
available for reappointment;
(3)
That if in response to the third advertisement in the third year, no
application is received for the reserved post from candidates belonging to SC,
ST, DT, or NT, the college authorities shall start the process of dereservation
of the reserved post.
After
the process of dereservation of the post is completed, the appointment of
non-backward class teacher shall be deemed to be on probation with
retrospective effect from the date of his initial appointment if he has held
continuous appointment for two years in the college or in any other college
under the same management, and that his appointment shall be confirmed from the
dates of completion of two years of continuous appointment.
The
aforesaid direction shall come into force with retrospective effective from the
date of the Maharashtras Government Resolution, that is, of 29- 9-1986, which
means that non-backward class teacher who is eligible to get the benefit of the
above direction shall be confirmed in his post with effect from 29-9-1986 or
from any later date on which he may become eligible for confirmation in
accordance with the aforesaid directions.
x x x x
x x x x x" (Emphasis supplied)
14.
According to these Government resolutions and University directions (a)
whenever a post is reserved to be filled in by the candidates from the backward
classes, the post is to be advertise thrice within 6 months in each academic
year. The post is to be kept vacant for the said months 6 months if no suitable
candidate from the backward classes is available; (b) the post is to be filled
in temporarily for one academic year by a non-backward class candidate only
after the three advertisements have been given as above; (c) the aforesaid
process is to be repeated for two more academic years; (c) the candidate from
the non- backward classes appointed temporarily in the first academic, year for
want of a backward class candidate, is to be continued as a temporary appointee
for the next two academic years without being interviewed afresh for the next
two years; (d) if in spite of the third advertisement in the third academic
year, no application is received from a backward class candidate, the College
authorities are free to 294 start the process of dereservation of the reserved
post; (e) after the process of dereservation of the post is completed, the
appointment of non-backward class teacher will be deemed to be on probation
with retrospective effect from the date of his initial appointment and he shall
be confirmed in the post on his completing two years of his continuous service.
15.
Admittedly, as pointed out earlier, the post was reserved for the academic year
1983-84. The Trust had not given three advertisements within six months for any
of the academic years 1983-84, 1984-85 and 1985-86. On the other hand for the
academic year 1983-84, it issued only two advertisements, viz., on October 30, 1983 and November 12, 1983. It is not known as to why even two advertisements were not
issued at the beginning of the said academic year. The academic year admittedly
begins from June. May that be, as it is. As regards the second academic year
1984-85, it issued only one advertisement and that was on April 28, 1984. It did not issue any advertisement
for the academic year 1985-86. The initial appointment of the 1st respondent
for the academic year 1983-84 and her continuation for the subsequent academic
years, viz., 1984-85 and 1985-86 was thus in breach of the Government
resolutions and the University directions and, therefore, illegal. Similarly,
since the appointment of the 5th respondent was made without fallowing the
procedure prior to dereservation, viz., three advertisements repeated every
year for all the three academic years for which the post was to be reserved,
his appointment to the post, as if the post stood legally dereserved was also
illegal since in the facts and circumstances of the case, it is obvious that
the post could not have been dereserved to make it available for non- backward
class candidate.
16. Shri
Bhandare, however, contended that in the meanwhile the appellant-Trust had
taken steps to shift the reservation from the post of a lecturer in Sanskrit to
the post of lecturer in Sanhita. The Trust had written a letter on July 2, 1986 for the purpose to the Directorate
had by its letter of July
11, 1986 accorded the
sanction. It may, however, be pointed out the representation made by the
lecturer in Sanskrit to the post of lecturer in Sanhita had proceeded on the
basis that the Trust had made efforts to fill in the said post from the
candidates of the backward classes as required by the Government resolutions
and the University directions. As pointed out above, the Trust had not made the
efforts as required by the said resolutions and directions. It had not issued
the advertisements 295 as it was required to do. The sanction was obtained and
granted obviously on the basis of inadequate information.
The
sanction was, therefore, defective in law. The High Court unfortunately did not
notice these infirmities in the appointment of either of the respondents.
17. Shri
Ganpule, the learned counsel appearing for the 1st respondent contended that
since the 1st respondent was appointed in the first academic year, viz.,
1983-84 and continued for the next two academic years, viz., 1984-85 and
1985-86 she was entitled to the benefit of the directions of the University
contained in Circular No. 98 of 1987 dated March 11,1987 which had stated that
if the non-backward class teacher is on probation continuously for two years he
would be deemed to be on probation with retrospective effect from the date of
;his initial appointment. Although the services of the 1st respondent were
terminated w.e.f. April 30, 1986, since she was entitled to the benefit of the
vacation salary following the academic year 1985-86 she would be deemed to be
in service after the completion of the vacation and, therefore, she may be said
to be in service on September 29, 1986 from which date the said University
direction was to be effective. The contention proceeds on the footing that her
initial appointment and the continuation of service for the next two academic
years was valid. We have already pointed out above that they cannot be
considered to be valid. However, assuming that her initial appointment and
subsequent continuation of service was valid, she would not be entitled to the
b benefit of the University Direction of March 11, 1987 because her entitlement
to the vacation salary does not extend her period of employment up to the end
of the vacation. That is a perquisite which is conferred on every teacher who
has served during the academic year. It has no connection with the continuation
of the employment since even those teachers whose services are validly
terminated before the beginning of the vacation period are given the benefit of
the salary of the vacation period. Statute 424 of the University which is
reproduced as Annexure 'C' to the petition makes this position clear. The
argument, therefore, has no merit.
In the
view we have taken the appointments of both 1st and the 5th respondents were
not valid.
18.
The post was reserved for the academic year 1983- 84. We are now at the end of
the academic year 1990-91 A fresh appointment, therefore, will have to be made
for the academic year 1991-92. In the meanwhile, several events have occurred.
The appointment of the 1st 296 respondent has already been terminated w.e.f.
April 30, 1986. The 5th respondent has been in service from July 2, 1987. We
are informed across the bar that today he has become overaged. The 1st respondent
was overaged even at the time of her initial appointment. Although the advertisemently
had stated that the candidate should not be above 32 years, at the time of her
initial appointment itself, she was about 40 years old. The advertisement had
also not l;mentioned anywhere that the age was relaxable.
But
that is a matter of history. In the meanwhile. as pointed out above, on
incomplete information, the Directorate of Ayurveda has allowed the
appellant-Trust to shift the reservation from the post to the post of a
lecturer in Sanhita. Taking into account all the facts and circumstances, we
are of the view that an opportunity should be given to the appellant-Trust to
cure the illegalities.
19.
While, therefore, we maintain the order of Tribunal and set aside the order of
the High Court, we direct the appellant-Trust to advertise the post three times
sufficient in advance and in any case within six months from the close of the
present academic year, viz.,1990-91 as a post reserved for the backward class
candidate, and if no application is received from a suitable backward class
candidate, the post will be deemed to have been dereserved.
The
Trust will then proceed to fill in the same by a candidate belonging to
non-backward classes. This fact may be made clear in all the three
advertisements. The 5th respondent will be entitled to apply for the post
notwithstanding the fact that he has by this time become overaged. If he is
selected on the basis of his other qualifications, the Selection Committee shall
relax in his favour the condition with regard to the maximum age. If he is
appointed to the post, his appointment will be a fresh one and his past service
will not count for the probation period. The Trust shall for the purpose
constitute a proper Selection Committee according to the rules.
The
appeal is allowed accordingly. The parties will bear their own costs.
20.
Before parting with this appeal, we must observe that our decision has
proceeded on the basis of the Government resolutions and University directions
placed before us. The resolutions and directions as pointed out above require
that the posts reserved for backward class candidates should be kept vacant for
six months and it is only after the third advertisement during the said six
months in each academic year that they should be filled in by candidates
belonging to 297 the non-backward classes if suitable candidate from backward
classes are not available. Literally interpreted, it would mean that in each
academic year, there will be no teacher for the first six months, if the
process of advertisement is to begin at the commencement of the academic year.
This is bound to cause hardship to the students. It is, therefore, incumbent
upon the institutions concerned to advertise the posts thrice within six months
well before each academic year begins. Since in the present case the academic
year begins in June, the process of advertisement must begin in December of the
preceding year. This should be the normal practice. An exception has to be made
in the present case because the decision is being given today. To overcome the
hardship to the decision is being given today. To overcome the hardship to the
students, we would recommend that the 5th respondent may be permitted to teach
as a purely temporary teacher during the period that the process is not
completed for the academic year 1991-92. However, the appellant-Trust will take
steps within two weeks from the receipt of this order to start the process of
advertisement as directed above.
G.N.
Appeal allowed.
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