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Joseph Francis Lobo (Dr.) Vs. Secretary, Modern Education Society, N. Wadia College and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 1745 of 1981
Judge
Reported in1983(1)BomCR162
ActsPune University Act, 1974 - Sections 42B and 59
AppellantJoseph Francis Lobo (Dr.)
RespondentSecretary, Modern Education Society, N. Wadia College and ors.
Appellant AdvocateM.A. Rane, Adv.
Respondent AdvocateJ.M. Chitale and ;M.V. Palkar, Advs. for respondent Nos. 1 and 2, ;A.V. Sawant, Adv. General for respondent No. 3, ;A.G. Sabnis, A.G.P. for respondent No. 5, ;P.M. Vyas, Adv. for respondent No. 11
DispositionPetition allowed
Excerpt:
.....or otherwise of the directions issued by the university and college authorities were bound by the letter issued by the university and hence the order which is based on the direction issued by the university is perfectly legal and proper. of gujarat, air1982guj107 .3. on the other hand, it is contended by the management as well as the university that the petitioner was not eligible for appointment as a demonstrator or lecturer, either in the junior college or senior college as he did not satisfy the qualifications laid down for such as appointment. therefore, it cannot be said that the university is bound by its representation made in the said letter by applying the principle of promissory estoppel it was also contended by shri sawant, learned advocate general appearing for the pune..........or otherwise of the directions issued by the university and college authorities were bound by the letter issued by the university and hence the order which is based on the direction issued by the university is perfectly legal and proper. it is this order of the tribunal which is challenged by the petitioner in this writ petition.2. shri rane, learned counsel appearing for the petitioner contended before us that being an appellate authority the tribunal has jurisdiction to enquire into the legality or otherwise of the direction issued by the university for finally adjudicating the question relating to the legality or propriety of the order of termination issued by the management. according to shri rane, the petitioner's deficiency in qualifications, which was laid down after his joining.....
Judgment:

C.S. Dharmadhikari, J.

1. It appears to be an admitted position that petitioner-Dr. Joseph Francis Lobo was working as part-time demonstrator from 26th June, 1967 to 14th November, 1968 in Nowrosjee Wadia College, Pune, run by the Modern Education Society. Thereafter from 15th of November, 1968 to 14th June, 1970 he was employed as a full time demonstrator. Then it appears that for a period of two years i.e. from 15th June, 1970 to 15th June, 1972 the petitioner was employed as a lecture in St. Vincent College at Pune. He rejoined N. Wadia College in June 1972 as a full time demonstrator in a leave vacancy. Then he worked as a full time demonstrator from 15th November, 1974 to 31st of March, 1975 and went abroad to Itlay for higher studies. He returned to India in December 1976 and joined as a full time demonstrator in the degree college in the same institution viz. N. Wadia College on 10th January, 1977. Thereafter, he was appointed as a lecturer by the letter dated 15th of May, 1979 with effect from 11th July, 1977 to 31st March, 1978. In the meantime vide letter dated 25th of May, 1979 the petitioner was recognised as a teacher under section 59 of the University Act, to impart instruction on behalf of Pune University in zoology to the post graduate classes (by papers) and post graduate classes by research. The College authorities also vide their letter dated 10th January, 1979 informed the University that Dr. Lobo had joined the college in the year 1967 as demonstrator. Then in 1972-73 he worked in a leave vacancy and then from November 1974 he was regularly appointed as a demonstrator. In this letter the University was further informed that in 1975 Dr. Lobo went abroad for higher studies and he rejoined college in June 1977 and continued to work till the date of the letter i.e. 10th Janaury, 1979. It was further stated in the said letter that Dr. Lobo was found suitable for conducting teaching of higher classes in view of his Ph.D. degree, his teaching experience, research publications and the present research work. Therefore, a further query was made whether the deficiencies in the qualifications could be condoned and his appointment regularised in the senior college. The Assistant Registrar of the Pune University informed the college authorities vide his letter dated 1st February, 1979 that the deficiencies in qualifications of Dr. Lobo can be condoned vide University Office Circular No. 422 of 1973-74 and his appointment to the senior college can be regularised. Thereafter Dr. Lobo was continued in service. The college authorised issued a letter of appointment dated 12/13th July, 1979 appointing him in the senior college as a lecturer in zoology with effect from 2nd July, 1979. This appointment was on purely temporary basis up to the end of academic year 1979-80. It appears that thereafter the college authorities approached the University for approval. In the meantime vide the order dated 19th April, 1980 the petitioner was continued in service of the degree college for academic year 1980-81 as a lecture in zoology. Then on 4th of November 1980 i.e. after the end of the academic year 1979-80 the University informed the college authorities that they had approved the appointment of Dr. Lobo for the academic year 1979-80 only as a special case and the post will have to be filled in by following the selection procedure. In view of this letter of the University, the College authorities advertised the post and a Selection Committee was also constituted. The petitioner also applied for the post and was also interviewed by the Selection Committee. However, the Selection Committee did not select him. Therefore, vide letter dated 17th of December, 1980 the petitioner's services were terminated. It is this order of termination which was challenged by the petitioner before the College Tribunal under section 42-B of the Pune University Act, 1974. After giving an opportunity of being heard to both sides the College Tribunal vide its order dated 10th of March, 1981 held that the notice of termination issued by the management is neither illegal nor improper. As a necessary consequence of this finding the appeal filed by the petitioner was dismissed. The learned Presiding Officer of the Tribunal also held that he has no authority or jurisdiction to go into the question of legality or otherwise of the directions issued by the University and College authorities were bound by the letter issued by the University and hence the order which is based on the direction issued by the University is perfectly legal and proper. It is this order of the Tribunal which is challenged by the petitioner in this writ petition.

2. Shri Rane, learned Counsel appearing for the petitioner contended before us that being an Appellate Authority the Tribunal has jurisdiction to enquire into the legality or otherwise of the direction issued by the University for finally adjudicating the question relating to the legality or propriety of the order of termination issued by the management. According to Shri Rane, the petitioner's deficiency in qualifications, which was laid down after his joining the college in the year 1967 already stood condoned by the University itself and, therefore, it was not open to the management or University to reopen the said question over again and then terminate service of the petitioner. According to Shri Rane, the order of termination issued by the management is based on misconception that the petitioner's appointment could not be continued under the law. Shri Rane has also raised a contention that in any case the management and the University are stopped from contending that the petitioner was not qualified to hold the post of lecturer either in senior college or in the junior college. He has also raised a contention that in view of the circular issued by the Government the post of the demonstrator held by the petitioner stood upgraded and, therefore, it was not open to the University or the management to remove him from the employment. In support of his contention Shri Rane, has placed reliance upon the decision of Supreme Court in Bhimsingh v. State of Haryana A.I.R. 1980 S.C. 786, and decision of Gujarat High Court in M/s.Kothari Oil Products Company v. Govt. of Gujarat, : AIR1982Guj107 .

3. On the other hand, it is contended by the management as well as the University that the petitioner was not eligible for appointment as a demonstrator or lecturer, either in the junior college or senior college as he did not satisfy the qualifications laid down for such as appointment. It was also contended by the University that the letter written by the University dated 1st of February, 1979 was based on mis-conception as the Office Circular No. 422 of 1973-74 did not provide for relaxation of qualifications or regularisation of the post. Therefore, it cannot be said that the University is bound by its representation made in the said letter by applying the principle of promissory estoppel it was also contended by Shri Sawant, learned Advocate General appearing for the Pune University that the principle of promissory estoppel, will not apply to the action taken by the University and in support of his contention he has placed strong reliance upon the decision of the Supreme Court in M/s. Jit Ram Shiv Kumar and others v. State of Haryana and others, : [1980]3SCR689 . He has also contended that the direction given by the University is binding upon the management and, therefore, the order of termination issued by the management is perfectly legal and valid. Shri Sawant has also contended that the University had never accepted the principle of upgradation as incorporated in the Government circular and, therefore, it cannot be said that the post of demonstrator stood upgraded.

4. Shri Chitale, learned Counsel appearing for the management has contended that the management has nothing personal against the petitioner, but it was bound by the direction issued by the University and, therefore, there was no other alternative but to terminate his service, more so when he was not selected by the Selection Committee. In fairness Shri Chitale made a statement before us that for the purpose of this writ petition and the controversy involved therein, the allegation made against the petitioner in the counter-affidavit about the interpolation and forgery need not be considered and should be deemed to be withdrawn.

5. Shri Vyas, learned Counsel appearing for respondent No. 11 has adopted the arguments advanced by the University and the management and has contended that respondent No. 11, Shri Bhatt is appointed as a lecturer in N. Wadia College after he was selected by the Selection Committee.

6. For properly appreciating the controversy raised before us, it will be worthwhile if a reference is made to the relevant provisions of the Poona University Act, 1974. Section 42-B confers a right upon an employee, who is dismissed or removed or whose services are otherwise terminated or who is reduced in rank by the management of filing an appeal before the College Tribunal. Section 42-C deals with general powers or procedure of the Tribunal. Section 42-D reads as under:

'(1) On receipt of an appeal, where the Tribunal, after giving reasonable opportunity to both parties of being heard is satisfied that the appeal does not pertain to any of the matters specified in section 42-B or is not maintainable by it or there is no sufficient ground for interfering with the order of the management, it may dismiss the appeal.

(2) Where the Tribunal after giving reasonable opportunity to both parties of being heard, decides in any appeal that the order of dismissal, removal, otherwise termination of service or reduction in rank was in contravention of any law, contract or conditions of service for the time being in force or otherwise illegal or improper, the Tribunal may set aside the order of Management, partially or wholly and direct the Management :---

(a) to reinstate the employee on the same post or on a lower post as it may specify;

(b) to restore the employee to the rank which he held before reduction or to any lower rank as it may specify;

(c) to give arrears of emoluments to the employee for such period as it may specify;

(d) to award such lesser punishment as it may specify in lieu of dismissal, removal, otherwise termination of service or reduction in rank as the case may be;

(e) to give such other relief to the employee and to observe such other conditions as it may specify, having regard to the circumstances of the case.

(3) It shall be lawful for the Tribunal to recommend to the State Government that any dues directed by it to be paid to the employee may be deducted from the grant payable to the Management and be paid to the employee direct.

(4) Any direction issued by the Tribunal under sub-section (2) shall be communicated to both parties in writing and shall be complied by the Management within the period specified in the direction, which shall not be less than two months from the date of its receipt by the Management.'

By section 42-E the decision of the Tribunal is made final and binding. By section 42-F penalty is provided for failure to comply with the Tribunal's directions. Thus, it is quite obvious that power of appeal is conferred in generic terms. As observed by the Supreme Court in Lilly Kurian v. Sr. Lavina and others, : [1979]1SCR820 , in an appeal the whole matter is at large before the Tribunal. A similar view seems to have been taken by the Supreme Court in P. Kasilingam v. P.S.C. College of Technology, : (1981)ILLJ358SC . By Chapter VI and particularly section 42-B to section 42-H a complete code is laid down for deciding the appeal filed by an employee. A special Tribunal has been constituted to deal with the grievances of the employees in matters of dismissal, termination and reduction in rank etc. It is by now well settled, principle of interpretation of statute, known as principle of implied powers, that grant of a right implies grant of means necessary for its exercise. If legislature enables something to be done it gives power by necessary implication to do everything which is indispensable for carrying out the said purpose. In some cases determination of the question of legality or propriety of the order of dismissal, termination or reduction in rank will also involve an enquiry into the existence of rights and obligations of the parties. Such an enquiry will be incidental to the determination of the main question before the College Tribunal. As to what question could be treated as incidental or ancillary must depend upon the facts and circumstances of each case and no general rule can be laid down in that behalf. Therefore, an inquiry in to the questions which are incidental to the main determination is implicit in the very provisions. This is not disputed by the learned Advocate General or Shri Chitale, learned Counsel appearing for the management. Therefore, it will not be correct to say that while adjudicating the main question raised in the appeal, College Tribunal will have no power or jurisdiction to determine the questions which are incidental or ancillary to the main question.

7. The main and principal question which requires consideration in this writ petition is to find out as to whether the petitioner Dr. Lobo had no authority to hold the post to which he was appointed by the respondent, N. Wadia College. We have already made a detailed reference to the service career of Dr. Lobo, from which it is quite obvious, that but for a certain intervals all through he was working either as a demonstrator or a lecturer in N. Wadia College. For a period of about two years Dr. Lobo had gone abroad for higher studies and on his return he was again appointed in N. Wadia College. From the record it appears that there is nothing against Dr. Lobo and Shri Chitale, learned Advocate appearing for the management has made this position very clear during the course of his arguments. In this context it is pertinent to note the contents of the letter written by the college management to the University on 10th of January, 1979. After making a detailed reference to the service career of Dr. Lobo in the college, in the last para of the letter a query is made by the college authorities, in the following terms :

'As Dr. Lobo is found suitable for conducting the teaching of higher classes, please let us know in view of his Ph.D., his years of teaching experience, research publications and present research work, the deficiencies in qualifications could be condoned and his appointment regularised in the Senior College.'

By the reply dated 1st February, 1979, the University informed the College authorities that the deficiencies in qualifications of Dr. Lobo can be condoned and his appointment in the senior college can be regularised. In this context it is also pertinent to note that the College authorities has furnished a report of change regarding the staff, to the University some time in January 1980. We have seen the original change report as submitted to the University and from it, it is quite clear that Dr. Lobo was transferred to the senior college as a lecturer from the junior college. The word 'transfer' as used in this letter is quite eloquent and is indicative of the intention of the management. After receiving the letter of 1st February, 1979 the petitioner was continued in service. It is really surprising that in November 1980 the University approved the appointment of the petitioner for the academic year 1979-80 and that too as a special case. To say the least the academic year 1979-80 was already over when this letter was written and in the mean time the letter of continuation dated 19th of April, 1980 was also issued by the management appointing the petitioner for the next academic year. It is not known as to whether any approval was sought by the management from the University for this further appointment. However, as the management felt that it was bound by the directions contained in the letter dated 4th November, 1980 issued by the University, it took further steps, too in the midst of the academic year.

8. In this context it is also worthwhile to note the given by the University to the letter dated 10th January, 1979 written by the Management to the University seeking instructions as to whether in view of the special qualification of Dr. Lobo viz., his Ph.D. Degree, his teaching experience, research publications and personal research work, deficiencies in the qualifications can be condoned, and his appointment regularised in the senior college. While replying to this query by the letter dated 1st February, 1979, the University authorities made a reference to the Office Circular No. 422 of 1973-74 . It appears that reference to this circular was wholly inapt and irrelevant. However, as observed by the Supreme Court in The Vice-Chancellor Jammu University and another v. Dunishinant Kumar Rampal A.I.R. 1977 S.C. 1156.

'When an authority makes an order which is otherwise within its competence, it cannot fail merely because it purports to be made under a wrong provision of law, if it can be shown to be within its powers under any other provision an order which is otherwise within the power of the authority to make.'

While implementing the recommendation relating to revision of pay scales for college teachers the University adopted certain principles vide its circular dated 7th of June, 1976. It appears that this order was issued by the Vice-Chancellor of the University of Poona in exercise of the power conferred upon him under sections 11(6)(b) of the Pune University Act, 1974. By this order the question of qualification and its relaxation is also dealt with. The relevant extract from the said order is as under :---

'The qualifications mentioned above are applicable to lecturers/principals who may be recruited hereafter i.e., on or after October 25, 1977. The qualifications mentioned above are also applicable to lecturers/principals recruited on or after October 4, 1975 by the colleges. Lecturers/principals recruited by colleges during the period commencing from 4th October, 1975 till October 25, 1977, who do not possess the qualifications mentioned above will have to acquire these qualifications within a period of five years from October 1977. If they are unable to do so during this period, they shall not be allowed to earn any future increment till they have satisfied this condition.

The teachers recruited on or before October 3, 1975 in colleges who did not possess at the time of their initial recruitment the minimum qualification as prescribed should be required to attain the said qualifications within a period of five years from October 25, 1977. If they are unable to do so during this period, they shall not be allowed to earn any future increment they till have satisfied this condition.

In respect of new recruitment to the posts of teachers in colleges on or after October 23, 1977, the colleges may recruit a person with lower qualifications only in case a person with the prescribed qualifications is not available or is not considered suitable provided that 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 service will be liable to be replaced by recruiting a person possessing the prescribed qualifications.'

The qualifications prescribed for the college lecturers are as under :---

' College Lecturers :

a) A consistently good academic record with at least 1st or high second class (in the seven point scale at Master's degree in a relevant subject or an equivalent degree of a foreign University; and

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.'

It is neither disputed nor can it be disputed that the petitioner satisfied the qualification laid down in Clause (b) because he hold a Ph.D. Degree of the Pune University itself. Therefore, the only deficiency in the qualifications can be under Clause (a). It appears that instead of making a reference to the order issued by the Vice-Chancellor under section 11(6)(b) of the Puna University Act in the letter dated 1st February, 1979, by mistake reference was made to Office Circular No. 422 of 1973-74. Therefore, this is not a case where it can be said that the directions issued by the University incorporated in the letter dated 1st of February, 1979 were wholly unauthorised or ultra vires of the powers. The management of the college acting on the direction incorporated in letter dated 1st of February, 1979, continued petitioner in the employment. In this view of the matter, having regard to the peculiar facts of this case, it will have to be held that the management acted on the direction issued by the University incorporated in the letter dated 1st February, 1979 read with the order issued under section 11(6)(b) of the Pune University Act, 1974, by the Vice-Chancellor on 7th June, 1978. While dealing with this question we cannot forget that the petitioner has been in employment of the N. Wadia college right from the year 1967 but for some intervening period. He went abroad on the study tour and on his return again joined the college. Thus, he has been in the employment of the college for a substantial period and the college authorities themselves found that he was suitable for conducting teaching of higher classes in view of his Ph. D. degree, his teaching experience, research publication and the present research work. Hence, it cannot be said that the petitioner was holding the post of a lecturer in the senior college to which he was transferred by the management, without any authority. He was duly appointed to the said post by the management, after the directions were issued by the University vide the letter dated 1st February, 1979. He was continued in service for the next academic year vide letter dated 19th of April, 1980. This whole position could not have been unsettled in November 1980 and that too in midst of academic year. This is more so, in view of the subsequent Government Resolution issued by the Government on 20th January, 1982, and the letter of the University Grants Commission dated 4th February, 1982, whereby the whole position is clarified. Shri Rane has also brought to our notice a letter written by the Government of Maharashtra dated 7th June, 1982, addressed to the General Secretary, Maharashtra Federation of University and College Teacher's Organisations. With this letter a copy of the Government letter dated 19th May, 1982, addressed to the Statutory Universities was also forwarded. From these letters it appears that the matter regarding relaxation of the qualification incorporated in Clause (a) namely, consistent good record is under consideration of the Government of India. Therefore, it is not necessary at this stage to decide the question raised by Shri Rane, that condition incorporated in the order issued by the Vice-Chancellor under section 11(6)(b) of the Pune University Act, 1974 prescribing requirement regarding consistent good academic record, as incorporated in Clause (a) is impossible of compliance and, therefore, arbitrary and illegal. Once it is held that in November 1980, the petitioner was holding the post in his own right, then obviously there was no vacancy which was required to be filed in. Hence, the subsequent action taken by the management in advertising the post and then making fresh appointments was wholly uncalled for at that stage.

9. We are inclined to take this view for an additional reason. It is an admitted position that respondent No. 2-Miss Usha Ashitikar and respondent No. 11-J.M. Bhatt are also not qualified to be appointed as lecturers. It is an admitted position that these respondents do not have M. Phil. Degree or recognised degree beyond Master's level, nor have they any published works to their credit, indicating their capacity for independent research work. It is also an admitted position that all the candidates who applied or were interviewed were not duly qualified as they did not possess both the qualifications. This being the position, this is one of those cases where no person with prescribed qualifications was available. If this is so, then obviously unless the person who was duly qualified was available, there was no occasion for terminating the service of the petitioner. Thus, taking any view of the matter, in our opinion, it will have to be held that the order of termination issued by the management in December 1980 was wholly improper. It appears that this aspect of the matter was not placed before the College Tribunal. In the view which we have taken, it is not necessary to consider other contentions raised before us.

10. In the result, therefore, the writ petition is allowed and the rule is made absolute.

The order passed by the College Tribunal dated 10th March, 1981 is set aside and it is declared that the order of termination issued by respondent No. 6, Principal, N. Wadia College, Pune dated 17th December, 1980 is illegal and improper. The said order is set aside. As a necessary consequence of this the petitioner is directed to be reinstated in the post which he held in December, 1980 forthwith. So far as the question of payment of arrears of emoluments viz. back-wages for the period from 31-12-1980 till the date of actual reinstatement is concerned, no material was placed before the Tribunal nor any material is placed before us to indicate that the petitioner was not otherwise gainfully employed during this period. It is no doubt true that the contention that the petitioner was in gainful employment, during the intervening period was also not raised by the management. However, in view of the decision of the Supreme Court in Kasilingam v. P.S.C. College of Technology, : (1981)ILLJ358SC , the matter to this limited extent viz. to the extent of deciding the question as to whether the petitioner is entitled to the arrears of pay right from the date of termination till the date of his reinstatement, will have to be remitted to the College Tribunal. We accordingly remit the said question to the College Tribunal. We further direct that while dealing with this question the Tribunal will afford opportunity to both sides to file their statements and lead evidence in support of their rival contentions. However, in the circumstances there will be no order as to costs.


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