Case Note & Summary
The Bombay High Court heard a writ petition filed by the Secretary of an educational society and the Principal of a college challenging the judgment of the College Tribunal dated 21 July 2004, which allowed an appeal by the respondent no.1 (a former part-time lecturer) and directed his reinstatement with full back wages. The dispute arose from the appointment of respondent no.1 as a part-time lecturer in Geography on 3 March 1999, pursuant to an advertisement approved by Shivaji University as being for an open category, part-time post. However, the University later clarified that the post was actually a full-time reserved for Scheduled Caste and cancelled the earlier approval, directing fresh advertisement. Respondent no.1's appointment was approved only for the academic year 1999-2000 as a special case. Meanwhile, the college, after following the prescribed procedure, appointed respondent no.4, a scheduled caste candidate, as full-time lecturer effective January 2001, which the University approved. Respondent no.1 had earlier filed a writ petition (W.P. No. 1689 of 2000) seeking absorption as full-time lecturer, which was dismissed by the High Court on 22 August 2000. Subsequently, respondent no.1 filed an appeal before the College Tribunal in 2002, which set aside the communication treating his appointment as temporary and ordered reinstatement. The petitioners contended that the Tribunal's order was illegal because the post was reserved, the appointment was temporary, and the appeal was barred by constructive res judicata given the earlier dismissal of the writ petition. The respondent no.1 argued that the appointment was on probation, the post was not proved to be reserved, and the earlier writ dealt with a different claim. The University supported the petitioners. The Court considered these arguments but the judgment text provided ends abruptly before the final decision is recorded, thus the final outcome is not mentioned.
Headnote
A) Constructive Res Judicata - Bar of Subsequent Proceedings - Code of Civil Procedure, 1908, Section 11 - The petitioners contended that the appeal before the College Tribunal by respondent no.1 was barred by constructive res judicata as the earlier writ petition concerning the same appointment was dismissed; the respondent argued the subject matter was different; the Court considered the scope of the earlier petition and the relief sought (Paras 6-9).
B) Appointment on Probation - Temporary Appointment - Maharashtra Universities Act, 1994 - The appointment letter dated 3-3-1999 stated probation for two years, but the petitioners later informed that the appointment was temporary; the University approved the appointment only for the academic year 1999-2000 as a special case due to a mistake; the Court examined the nature of the appointment based on correspondence (Paras 4-5).
C) Reservation Policy - Reserved Category Post - Maharashtra Universities Act, 1994 - The post of Geography Lecturer was originally advertised as part-time for open category, but the University later clarified it was a full-time reserved for Scheduled Caste; the petitioners appointed a scheduled caste candidate after fresh advertisement; the Tribunal’s direction for reinstatement conflicted with this reservation policy (Paras 6-7).
D) Reinstatement with Back Wages - Relief - The College Tribunal ordered reinstatement of respondent no.1 with full back wages from 15-9-2000; the petitioners challenged this on the ground that the post was not vacant for open category and the initial appointment was not approved beyond one year; the Court analyzed the validity of such relief (Paras 3, 9).
Issue of Consideration
Whether the College Tribunal's order directing reinstatement of the respondent no.1 with full back wages was illegal and whether the appeal was barred by constructive res judicata due to a prior writ petition
Law Points
- constructive res judicata
- appointment on probation
- reservation policy
- university approval
- reinstatement with back wages
- temporary appointment
- writ jurisdiction
Case Details
2006 LawText (BOM) (12) 36
WRIT PETITION No.9935 OF 2004
R. M. S. Khandeparkar, J.
G. S. Godbole, A. V. Anturkar, R. G. Ketkar, V. S. Mhaisapurkar, R. D. Soni
The Secretary, Late Sambhajirao Garad Shikshan Prasarak Mandal Mohol, Tal. Sholapur and The Principal, Deshbhakt Sambhajirao Garad Mahavidyalaya, Mohol District Solapur
Ramesh Gajendra Jadhav, The Registrar Shivaji University Kolhapur, The Joint Director of Higher Education Kolhapur Region, Kolhapur, Shri Dnyaneshwar Shinde
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Writ petition under Article 226 of the Constitution of India challenging the judgment of the College Tribunal in an appeal filed by a former part-time lecturer against his termination/non-approval of appointment.
Remedy Sought
The petitioners sought to quash and set aside the College Tribunal's order dated 21 July 2004 which directed reinstatement of respondent no.1 with full back wages.
Filing Reason
The petitioners contended that the College Tribunal's order was illegal because the appointment of respondent no.1 was temporary, the post was reserved for Scheduled Caste, and the appeal was barred by constructive res judicata.
Previous Decisions
The College Tribunal had allowed Appeal No. 34 of 2002 ordering reinstatement; earlier, the High Court in Writ Petition No. 1689 of 2000 had dismissed respondent no.1's claim for absorption as full-time lecturer.
Issues
Whether the College Tribunal's order of reinstatement was legal and justified?
Whether the appeal before the College Tribunal was barred by constructive res judicata due to the earlier writ petition?
Whether the post of Geography Lecturer was reserved for Scheduled Caste and the appointment of respondent no.1 was temporary?
Whether the petitioners manipulated the appointment order?
Submissions/Arguments
The petitioners argued that the Tribunal's findings were contrary to the material on record: the appointment was on probation in a post meant for reserved category, the University had not approved it beyond 1999-2000, and the appeal was barred by constructive res judicata as all points were deemed decided in the earlier dismissed writ petition.
The respondent no.1 submitted that the appointment letter showed probation for two years, not temporary; the earlier writ dealt with absorption as full-timer, not the same issue; the petitioners failed to produce the original roster to prove the post was reserved, and adverse inference should be drawn.
The University supported the petitioners, stating it never approved respondent no.1's appointment as permanent; the post was reserved for Scheduled Caste; and the earlier writ petition barred the appeal.
Judgment Excerpts
The petitioners challenge the judgment and order dated 21st July, 2004 passed by the College Tribunal in Appeal No. 34 of 2002. By the impugned judgment the College Tribunal has allowed the Appeal filed by the respondent no.1 and has directed the petitioners to reinstate the respondent no.1 with effect from 15.9.2000 with full backwages.
The appointment of the respondent no.1 was not approved by the University beyond the Academic Year 1999-2000 and the Post which the respondent no.1 was sought to occupy by virtue of the Appeal filed before the College Tribunal was reserved for the Scheduled Caste Category candidate wherein the petitioners after following the procedure had already appointed the respondent no.4.
The learned Advocate for the respondent no.1 ... submitted that the order in the Writ Petition No. 1689 of 2000 was in relation to claim of absorption as full timer instead of part timer and the subject-matter of the Appeal before the College Tribunal was totally different from the subject-matter of the adjudication in the said writ petition.
Procedural History
On 7-11-1998 the petitioners submitted a draft advertisement for various posts, including Lecturer in Geography, to the University. The University approved with corrections on 5-12-1998, showing the post as part-time for open category. An advertisement was published on 11-12-1998. Interviews were held and respondent no.1 was selected as part-time Lecturer in Geography on 3-3-1999; he joined on 9-3-1999. On 11-3-1999 the University cancelled the earlier approval, directing fresh advertisement for a full-time reserved post. The University later clarified that approval for the part-time appointment was a mistake and granted approval only for academic year 1999-2000. The petitioners informed respondent no.1 on 18-8-1999 that his appointment was temporary. Respondent no.1 filed Writ Petition No. 1689 of 2000 seeking absorption as a full-time lecturer, which was dismissed by the High Court on 22-8-2000. Meanwhile, the petitioners appointed respondent no.4 as full-time Lecturer in Geography from 2-1-2001, approved by the University on 2-2-2001. Respondent no.1 filed Appeal No. 34 of 2002 before the College Tribunal on 14-3-2002. The Tribunal allowed the appeal on 21-7-2004, directing reinstatement with back wages. The petitioners then filed the present writ petition, which was heard on 7-12-2006.
