Chikitsak Samuha S.S. and L.S. Patkar College, Goregaon and others vs Bilquis Wahab Quraishi and others

Pendse, J.—These two cross appeals are directed against judgment dated March 18, 1993 delivered by learned single Judge in Writ Petition No. 1020 of 1988. By the impugned judgment, the learned Judge directed the educational institution to reinstate respondent No. 1 in service as Lecturer and pay full back wages. The Trial Judge further directed that the Lecturer is entitled to increments only upto October 20, 1985 in accordance with Circular No. 238 of 1983 dated June 16, 1983 issued by the Government of Maharashtra. The management has preferred Appeal No. 290 of 1993 to challenge the order of reinstatement with full back wages while the Lecturer has preferred Appeal No. 968 of 1993 to claim that she is entitled to the increments even beyond October 20, 1985. As the claim raised in these two appeals is inter-connected, it is convenient to dispose of both the appeals by common Judgment.

The facts which gave rise to the passing of the impugned judgment are not in dispute and are required to be briefly stated to appreciate the grievance of the management. Chikitsak Samuha Trust, which is registered under the Bombay Public Trusts Act, is conducting Patkar College, situated at Goregaon (W), Bombay. From academic year 1981-82, the College introduced second year commerce faculty and as a result thereof, fresh appointments were made to meet additional workload. An advertisement dated March 18, 1981 was published in the local newspapers inviting applications for recruitment to the post of Lecturer. The respondent No. 1 applied for the post on March 24, 1981 even though respondent No. 1 was not qualified. The qualifications were prescribed by Government Resolution dated October 25, 1977 which was issued in pursuance of approval of the revised University Grants Commission''s recommendation. The University Grants Commission recommended revision of pay scales but felt that higher scale should be made available provided the teacher possesses better qualifications. Clause-V of the resolution provides that for appointment to the post of College Teachers, the following qualifications are necessary -

(a) A consistently good academic record with first or higher second class (B+) at Master''s degree in a relevant subject or an equivalent degree of a foreign University;

(b) A M. Phil Degree or a recognised degree beyond the Master''s level or published work indicating the capacity of a candidate for independent research work.

In a Master''s degree, a candidate can claim to have secured higher second class (B+) provided the candidate has secured more than 55% marks. It is not in dispute that the respondent No. 1 teacher did not have the qualifications prescribed either under (a) or (b) above.

The resolution further provided that the colleges may recruit a person with lower qualifications only in case a person of the prescribed qualifications is not available or is not considered suitable but such person will have to acquire the prescribed qualifications within five years from the date of his appointment failing which he shall not be allowed to earn any future increment and his services will be liable to be replaced by recruiting a person possessing the prescribed qualifications.

The management did not receive any application of fully qualified candidate and consequently on June 20, 1981 the respondent No. 1 was appointed as a part-time Lecturer purely on temporary basis for the academic year 1981-82. The respondent No. 1 was required to deliver lectures in commerce classes. The rules prescribe that in case any College appoints Teachers who are unqualified, then approval must be sought for temporary appointments from the University of Bombay to which the Colleges are affiliated. The University granted approval to appointment of respondent No. 1 on December 2, 1981. The management introduced third year commerce faculty for the next academic year and again published an advertisement in a newspaper inviting applications for full time Lecturers in subjects of Commerce and Marketing. The advertisement was published on March 27, 1982. Before the academic year commenced, the University of Bombay introduced reservation policy for appointment of backward class candidates in the Colleges for academic year 1982-83. The result of the introduction of the policy with effect from May 8, 1982 was that the vacancy in which the respondent No. 1 was working as temporary was declared as reserved for backward class candidate. The selection committee could not meet because of non-availability of suitable candidates with the result that the University granted permission to continue respondent No. 1 in a temporary capacity for the academic year 1982-83 as a special case. The identical situation followed for the next academic year, even though the applications were invited by the management to find out availability of a fully qualified Teacher. The respondent No. 1 had applied in pursuance of the advertisement though not qualified. The management could not secure any qualified candidate from the backward class with the result that the respondent No. 1 was continued with approval of the University as a Lecturer in a temporary capacity for academic year 1983-84. The same situation continued for the academic years 1984-85 and 1985-86.

The University expected the management to forward approval forms duly signed by the Teachers for the academic year 1986-87 and the management called upon all the Teachers who held temporary posts to sign the approval form. Every Teacher working under the management signed the approval form except respondent No. 1. The respondent No. 1 declined to sign it for her own reasons with the result that the University declined to approve temporary appointment of Respondent No. 1 for the academic year 1986-87. As the University declined to grant approval, the management informed the respondent No. 1 that she had ceased to be in employment and was not allowed to resume duties on the reopening of the term with effect from June 20, 1987.

The respondent No. 1 preferred Appeal No. 16 of 1987 before the College Tribunal in accordance with the provisions of Section 42(B) (i) of Bombay University Act, 1974 complaining that the termination of her services as a Lecturer in Commerce faculty with effect from June 20, 1987 was illegal. The respondent No. 1 claimed that she was appointed in a clear vacancy and hence should be deemed to be a permanent employee. The respondent No. 1 claimed that her services could not have been terminated without holding an enquiry as contemplated by the provision of the University Act. The respondent No. 1 therefore claimed reinstatement with full back wages. The Tribunal by judgment dated February 5, 1988 rejected the claim and dismissed the appeal. The Tribunal came to the conclusion that the respondent No. 1 was appointed on temporary basis and her termination is not involution of the provisions of any Act. Though the respondent No. 1 was entitled to only one month''s notice period as compensation as per the statute, the Tribunal taking a sympathetic view, directed the management to pay four months total salary to respondent No. 1. The respondent No. 1 then filed Writ Petition No. 1020 of 1988 under Article 226 of the Constitution. The petition was heard by the learned single Judge and by impugned judgment, the learned Judge held that the claim of the management that the respondent No. 1 was appointed on purely temporary basis cannot be accepted. The learned Judge held that the management was not justified in artificially keeping the services of respondent No. 1 as temporary from year 1981 to 1986 and the continuous rendering of services for six years automatically makes respondent No. 1 permanent in service. The Trial Judge felt that merely because respondent No. 1 was appointed from year to year for a fixed period and on a temporary basis that cannot after the position that respondent No. 1 was holding a permanent post. While recording this finding, the learned Judge found that the respondent No. 1 was not qualified either on the date of initial appointment or on the date of termination of employment or even on the date when the judgment was delivered in writ petition. Inspite of respondent No. 1 being unqualified to hold the post, the learned Judge directed that the management should reinstate her with full back wages on the basis that the respondent No. 1 has automatically become a permanent employee. The trial Judge found that the refusal of respondent No. 1 to sign the approval form could not be faulted with. The learned Judge directed that the respondent No. 1 is entitled to the increments only upto October 20, 1985 on the basis that the respondent No. 1 did not obtain the requisite qualifications within a period of five years from the date of her appointment and could be deprived of additional increments in accordance with the Government Resolutions dated October 25, 1977 and June 16, 1990. The two cross appeals are directed against the impugned judgment.

Smt. Doshi, learned counsel appearing on behalf of the management, submitted that the learned single Judge was in error in assuming that the respondent No. 1 was a permanent Teacher. It was urged that there is no rule which makes the teacher automatically permanent even though the Teacher remained in services for a total duration of six years. Smt. Doshi submitted that it is not in dispute that for every academic year from the year 1981 to 1986, the management made efforts to secure qualified Teacher but was unable to do so and consequently respondent No. 1 was appointed on temporary basis from year to year with the approval of the University. Smt. Doshi submitted that it was open for the management to terminate temporary employment of the Teacher without holding any enquiry or without assigning any reason but the management did not indulge in such actions but was constrained to terminate the services of respondent No. 1 when respondent No. 1 declined to sign the approval form demanded by the University. Shri Desai, learned counsel appearing on behalf of respondent No. 1 on the other hand submitted that though respondent No. 1 did not have the requisite qualifications at the time of initial entry into the services or anytime thereafter, still respondent No. 1 should be deemed to be in permanent employment and the finding of the learned Judge on that count may not be disturbed. The learned counsel very fairly stated that in case the respondent No. 1 was not holding the permanent post but was appointed on temporary basis from year to year and for a fixed duration, then no grievance can be made about discontinuation of respondent No. 1. In view of the rival submissions, the short question which falls for determination is whether the respondent No. 1 was holding a permanent post.

The expression ''Temporary Appointment'' is defined under Statute 409 of the Bombay University Act and reads as follows :-

"Temporary appointment means an appointment made on purely temporary basis either in a permanent post or a tenure post or against a temporary position/vacancy".

The statute also defines expression ''Probation'' which means an appointment made on specified conditions for a stipulated period to a post for determining one''s fitness for eventual confirmation in the post. Though Shri Desai at one stage suggested that respondent No. 1 was appointed as a probationer, the contention was not rightly persuaded because respondent No. 1 was not qualified to hold the post and question of fitness or eventual confirmation could not have arisen. It is therefore obvious that the respondent No. 1 was appointed initially on a temporary basis. As mentioned hereinabove, the Government Resolution dated October 25, 1977 prescribed the qualifications of appointment of post of Lecturer. The resolution provided to make appointment of persons with lower qualifications if the persons with requisite qualifications were not available. The appointment of such candidates with lower qualifications was permissible provided such unqualified candidate secures requisite qualifications within a duration of five years. It is not in dispute that the Government Resolution dated October 25, 1977 was in operation when the respondent No. 1 was initially appointed in a temporary post. The respondent No. 1 was appointed because the management could not secure services of any qualified candidate. The University of Bombay granted approval for temporary post realising that qualified candidate is not available. Shri Desai submitted that once an unqualified candidate is appointed because of non-availability of qualified candidate, then such unqualified candidate is entitled to remain in services for a duration of five years because that is a period provided for acquisition of requisite qualifications. The submission is devoid of any merit. The Government Circular provides for appointment of unqualified persons to avoid consequences of the management closing down the class for non-availability of qualified teachers. The management cannot be forced to continue unqualified teachers for a duration of five years even if a qualified teacher is available for the next academic year. The provision to acquire the requisite qualifications within a stipulated period of five years is an enabling provision and that provision cannot be used to claim that an unqualified teacher can continue for a duration of five years even though qualified teachers are available.

ON THURSDAY, JUNE 23, 1994 :-

Shri Desai, learned counsel appearing on behalf of respondent No. 1, then submitted that the Government Resolution dated October 25, 1977 was replaced by Government Resolution dated January 31, 1983 and in pursuance of this resolution the University of Bombay issued a circular which provided for the qualifications for appointment of Lecturers. The qualifications prescribed under the earlier resolution were slightly modified by providing that the Lecturer should have good academic record with at least second class (6 in the seven point scale) Master''s degree in relevant subject from an Indian University or equivalent degree from a foreign University and an M. Phil degree or a recognised degree beyond the Master''s level or published work indicating the capacity of a candidate for independent research work. The only deviation from the earlier resolution was that instead of first or higher second class (B+) in Master''s degree, second class (6 in the seven point scale) Master''s degree was found sufficient qualification. The latter resolution further provided that if a candidate possessing the qualifications as above is not available or not considered suitable, then the management may appoint a person possessing a good academic record on condition that he will have to obtain M. Phil degree within eight years of the appointment failing which he will not be able to earn future increments till he obtains a degree. Relying on this resolution, Shri Desai contended that failure to secure M. Phil degree within eight years merely deprives the candidate of future increments but such candidate cannot be removed from services. The submission cannot be accepted for more than one reason. In the first instance, the respondent No. 1 was appointed prior to the publication of the Government Resolution dated January 31, 1983 and was regulated by the qualifications prescribed by the earlier resolution and which clearly provided that in case a candidate fails to secure the requisite qualifications within five years then such candidate can be removed. As mentioned hereinabove, the Government Resolution does not give a charter to the management to continue unqualified teachers indefinitely. We are unable to appreciate the submission of Shri Desai that the unqualified candidates can continue for a period of eight years and thereafter only future increments can be denied but such candidate cannot be removed from employment.

The principal question which falls for determination is not whether the respondent No. 1 can acquire the requisite qualifications within five years or eight years but whether the respondent No. 1 had acquired the status of a permanent teacher. It is not in dispute that at no stage, the respondent No. 1 had acquired requisite qualifications. The respondent No. 1 was initially appointed as mentioned hereinabove on June 20, 1981. Even on that date, the respondent No. 1 had not secured the requisite qualification. The minimum qualification required on that day was first class or second class (B+) Master''s degree and an M. Phil degree. The respondent No. 1 had secured second class in B. Com. and also in M. Com. but did not secure the requisite marks to claim B+. It was not possible for respondent No. 1 to acquire a fresh Master''s degree and consequently even if respondent No. 1 had acquired M. Phil degree, that would not have been sufficient. It is not in dispute that the respondent No. 1 never secured M. Phil degree. On these undisputed facts, Shri Desai submitted that the respondent No. 1 became permanent Teacher automatically after continuation of services for a duration of two years. We repeatedly enquired from the learned counsel as to how the claim is made and whether it is based on any statutory provision or any letter from the management or the University and the answer was in the negative. We are unable to appreciate how a Lecturer appointed on a temporary basis for a fixed duration from year to year can ever claim that such a Lecturer has acquired a status of permanent Teacher and therefore cannot be removed apart from the consideration that the initial appointment itself was of a unqualified Teacher. The initial appointment was made due to non-availability of qualified teacher. Shri Desai then submitted that the respondent No. 1 was continued by the management for a duration of about six years and that fact should be sufficient to hold as observed by trial Judge that respondent No. 1 was made permanent. We are unable to find any merit in the contention. As mentioned hereinabove, the management was searching for a qualified teacher every year from academic year 1980-81 onwards but was unsuccessful in securing such candidate and consequently respondent No. 1 was continued from year to years with approval of the University. The mere fact that the respondent No. 1 was continued for six academic years cannot led to the conclusion that the respondent No. 1 had acquired status of permanency. There is one more factor which cannot be overlooked. In the academic year 1982-83 i.e., within one year of the initial appointment of respondent No. 1, the University of Bombay declared the post held by respondent No. 1 as reserved for backward class candidate. The respondent No. 1 does not belong to backward class. The management thereafter invited applications from backward class candidates, but such candidate was not available with the result that the respondent No. 1 was continued. The fact that the respondent No. 1 was not qualified, the fact that the management was inviting applications for each academic year from qualified candidates, the fact that the post held by the respondent No. 1 was reserved for backward class candidate and the fact that the respondent No. 1 applied for appointment from year to year are tell-tale circumstances to establish that neither the management nor the University ever treated the respondent No. 1 as holding the permanent post. It is not open for the Court to foist an unqualified teacher on the management on equitable consideration. Indeed, it cannot be overlooked that the University declined to grant approval to the continuation of respondent No. 1 after the respondent No. 1 refused to sign the approval form. It is not open for the management to engage any teacher whose appointment is not approved by the University. The University declined to give approval because the candidate was not qualified in this background, it was not proper for the learned single Judge to direct reinstatement of respondent No. 1 with full back wages in exercise of writ jurisdiction. In our judgment, the order directing reinstatement of respondent No. 1 with full back wages is not correct and is required to be set aside.

The respondent No. 1 has preferred Appeal No. 968 of 1993 to claim that the Trial Court should have directed payment of increments for the period of eight years from the initial appointment and not only upto October 20, 1985. The claim does not survive for consideration in view of our decision that respondent No. 1 is not entitled to reinstatement. Even otherwise we are not impressed by the contention that unqualified teacher is entitled to draw emoluments for a duration of eight years though not qualified. The appointment of respondent No. 1 was made in pursuance of resolution of year 1977 and that specifically provided that unqualified teacher who fails to secure requisite qualifications will not be entitled to increments after a duration of five years. In our judgment, appeal preferred by the respondent No. 1 is without any merit.

Accordingly, Appeal No. 290 of 1993 filed by the management is allowed and impugned judgment dated March 18, 1993 delivered by learned single Judge in Writ Petition No. 1020 of 1988 is set aside and the order dated February 5, 1988 delivered by College Tribunal in Appeal No. 16 of 1987 stands restored. Appeal No. 968 of 1993 filed by the Teacher is dismissed. The bank guarantee furnished by the management stands discharged. In the circumstances of the case, there will be no order as to costs in both the appeals.