Late Babasaheb Warhade Education Society and Others vs The State of Maharashtra and Others

B.R. Gavai, J—Rule. Rule made returnable forthwith. Heard finally by consent of learned counsel appearing for the parties.

The petitioners have approached this Court being aggrieved by the communication dated 31.3.2011 vide which the State has refused to re-grant permission for starting of Home Economics subject.

The petition arises out of peculiar facts. The petitioners were granted permission for starting Arts, Commerce and Science College on 13.9.1991. Insofar as Arts stream is concerned, permission was granted for various subjects including Home Economics. After the grant of permission by the State Government, the respondent No. 4�University also granted affiliation for various subjects including Home Economics.

It appears that the respondent No. 5 came to be appointed to teach Home Economics subject since September, 1992. It appears that subsequently the respondent No. 5 was suspended in the year 1996. It further appears that from 1997-98, there was a dispute between the petitioners and the respondent No. 5. It was the case of the respondent No. 5 that though students were available, the petitioners had not given admissions to the students in Home Economics subject. Per contra, it was the case of the petitioners that in fact no student came forward for being admitted in the said subject. In this background, the petitioner decided to seek permission of the respondent No. 4-University for closure of the said subject. However, the University vide its communication dated 6.1.1997 refused the permission to close the subject. Being aggrieved thereby, the petitioners had filed a writ petition in this Court being a Writ Petition No. 3892/2001. However, it appears that subsequently the matter was amicably settled between the petitioners and the respondent No. 5 herein and as such a pursis was filed in Writ Petition No. 3892/2001. The pursis was filed on 24.9.2008 along with the terms of settlement dated 31.7.2007. Accordingly the said petition came to be disposed of as withdrawn.

It appears that thereafter from the academic year 2008-2009, there have been regular admissions in the subject of Home Economics as could be gathered from the chart which is placed on record by the respondent No. 3. It further appears that the University also granted permanent affiliation for all the subjects including Home Economics with effect from 16.6.2009. It further appears that though initially the respondent No. 2 was granted permission on no grant-in-aid basis from 1994-1995, the College came on grant-in-aid basis partially, beginning with 25% and on 100% grant-in-aid with effect from 1997-1998.

It further appears that thereafter a proposal was sent by the petitioners to the respondent No. 3 for recommending 100% grants insofar as salary of the respondent No. 5 is concerned. It further appears that the respondent No. 3 had recommended the petitioners'' proposal to the Director of Higher Education i.e. respondent No. 2. It appears that the respondent No. 2 had forwarded the proposal of the petitioners to the respondent No. 1. Since there was no favourable action on the part of the respondent No. 1, representations were made by the petitioners. However, by the impugned communication dated 31.3.2011, the Government has refused the proposal sent by the petitioners on the premises that the said subject was restarted without seeking fresh permission of the Government.

As already stated, the facts in the present case are peculiar. Right from inception, the petitioners were granted permission for the subjects of Home Economics also. It appears that from 1996 onwards, there was a dispute between the petitioners and the respondent No. 5 on account of which there were no admissions in the subjects of Home Economics till the matter was amicably settled in the year 2007. The chart placed on record by the Joint Director of Higher Education shows that though students were available till academic year 1995-96 and thereafter from 2008-2009 onwards, however, for some mysterious reason during the intervening period the students were not available. We do not wish to go into the rival controversies i.e. whether the students were available and not admitted by the petitioners as claimed by the respondent No. 5 or whether the students were in fact not available as claimed by the petitioners.

Be that as it may. The respondent No. 4 - University refused the request of the petitioners to close the said subject. It is pertinent to note that there was no order at all passed by either the University or the State Government thereby revoking the permission granted in the subject of Home Economics. As such we find that the order impugned, which gives a reason that the subject was revived without there being a permission of the State Government is on an erroneous footing. Though we have called upon the learned AGP to show any order showing the closure of said subject, the learned AGP has not been in a position to do so. As such we find that there was no valid closure of the said subject and as such the impugned order which states that the subject has been restarted without the permission of the State Government is totally without any valid basis.

In that view of the matter, we find that the petition needs to be partly allowed.

Insofar as the period between academic year 1997-98 and the academic year 2007-2008 is concerned, since it is a specific case of the Joint Director of the Higher Education that no students were admitted by the petitioners during the said period, we are not inclined to direct the State to release the grants during that period. However, taking into consideration that the College has come on 100% grant-in-aid basis from 1999 onwards, we find that the petitioners would be entitled for release of grants from the academic year 2008-2009 onwards. It appears that in view of the settlement arrived at in between the parties, the respondent No. 5 herself has accepted to forgo the claim of the salary towards the aforesaid period i.e. between academic session 1997-98 and 2007-2008. In that view of the matter, we find that the State cannot be burdened with the payment for that period. However, it appears that the respondent No. 5 has been continuously working from the academic year 1992-93. As such she would be entitled to continuity in service for all the purposes except the back wages as stated hereinabove.

In the result, Rule is made absolute in the following terms:

The impugned order dated 31.3.2011 is quashed and set aside. It is held that the petitioners are entitled to 100% grant-in-aid insofar as the subject of Home and Economics are concerned from the academic year 2008-2009 onwards. The respondents No. 1 to 3 shall regularly pay the salary to the respondent No. 5 with effect from 1.4.2015. The arrears of salary shall be paid within a period of six months from today. It is held that since we have directed that the respondent No. 5 would be entitled to continuity in service, her pay fixation treating her service as a continuous one from the original date of appointment shall be done within a period of one month from today.

In the facts and circumstances of the case, no order as to costs.