Allowed

Mrs.Rupa Rameesh Phatak v. the Secretary and Ors.

Bombay HC14 Nov 2006WP/1681/1994

Case brief

AI extract

What is this about?

In a writ petition seeking quashing of an advertisement for lecturers and a Government Resolution, this Court directed the regularization of a Lecturer in Zoology. Having served for over 14 years against a reserved post with no reserved candidate selected, the petitioner was held eligible for confirmation. The Court ordered her regularization from August 1995, citing precedent and the fact that th

What did the court decide?

Petitioner directed to be regularised as Lecturer in Zoology from August, 1995.

Mrs.Rupa Rameesh Phatak Vs the Secretary and… — Pension and Retirement Benefits | Bombay HC (2006)

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 .[1].

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 ORDINARY ORIGINAL CIVIL JURISDICTION
 WRIT PETITION NO.1681 OF 1994

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 Mrs.Rupa Ramesh Phatak, )
 Indian Inhabitant, residing )
 at Flat No.2, Sudhama, 17, D.D.)
 Nagar, Linking Road Extn., )
 Santacruz (West), )
 Bombay-400 054. ) ..PETITIONER.
 Versus
 1. The Secretary, )
 Deccan Education Society, )
 registered under the )
 Societies Registration )
 Act, 1980 and Bombay Public )
 Trust Act, 1961, having )
 office at Kirti M. )
 Dongarsee College, Dadar(W),)
 Bombay-400 028. )
 2. The Principal, )
 Kirti M. Doongersee )
 College, both having )
 their office at Dadar, )
 Bombay - 400 028. )
 3. University of Bombay, )
 Fort, Bombay. )
 4. The State of Maharashtra, )
 through its Department of )
 Education and Employment, )
 Mantralaya Annexe, )
 Bombay - 400 032. ) ..RESPONDENTS.

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 ....
 Mr.Mihir Desai, Advocate for the Petitioner.
 Ms.Calcuttawala, A.G.P., for the State.
 Mr.S.M.Dharap, Advocate for Respondent No.2.

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 .[2].

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 CORAM : DR.S.RADHAKRISHNAN AND
 SMT.V.K.TAHILRAMANI,JJ.

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 DATED : NOVEMBER 14, 2006.

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 JUDGMENT: (PER SMT.V.K.TAHILRAMANI,J.)

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 1. In this Petition, the petitioner is praying
 for directions in the nature of certiorari so as
 to quash and set aside the advertisement dated
 13.6.1994 issued by the respondent-Management and
 the Government Resolution dated 12.7.1989.

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 2. The petitioner came to be appointed as a
 Lecturer in Zoology in the college of respondent
 No.1 initially on temporary basis from 27.6.1988
 to 26.7.1988, however, since August, 1988 she was
 appointed against a permanent vacancy which was
 however for a reserved post and she was continued
 till the end of that academic year. Subsequently
 she came to be appointed for the following periods
 on temporary basis and every time her appointment
 was approved by the respondent-University. She
 was appointed from 1.8.1989 to 20.4.1990, 2.7.1990
 to 20.4.1991, 1.8.1991 to 20.4.1992, 3.8.1992 to
 20.4.1993 and 21.6.1993 to 20.4.1994. All these

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 .[3].

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 appointments were against the reserved post for
 Scheduled Caste. In the academic year 1993-1994 a
 duly qualified reserved category candidate was
 selected by the Selection Committee on 11.7.1993.
 However, a fresh appointment order came to be
 issued in favour of the petitioner for the period
 from 12.7.1993 to 20.4.1994 as there was increase
 in the workload, hence the petitioner was
 continued in service for that academic year. In
 the academic year 1994-1995 due to reduction of
 workload there was no vacancy available for the
 reappointment of the petitioner. But, one person
 was promoted to the post of Principal, and the
 post occupied by him fell vacant. The person who
 was to occupy that post had proceeded on long
 leave by keeping lien on his post. Therefore, for
 that year as well, the petitioner came to be
 appointed against the leave vacancy.

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 3. On 13.6.1994 the respondent-Management

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 issued an advertisement for 14 posts of Lecturers
 and all these posts were reserved for SC/ST/DT/NT
 or OBC candidates. So far as the subject of
 Zoology is concerned, two posts were sought to be

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 .[4].

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 filled-in one from SC/ST/DT/NT; and other one
 from OBC category but on leave vacancy.

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 4. While challenging the said advertisement,
 it has been contended by the petitioner that in
 respect of the subject of Zoology there were seven
 posts and three of them were already occupied by
 reserved category candidates. It is the
 contention of the petitioner that by reserving one
 more post for SC/ST/DT/NT in the impugned
 advertisement, the total number of Lecturers in
 the reserved category would go to four as against
 the total strength of seven. In such case, the
 reserved quota of 50%, as mandated by law, would
 be exceeded.

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 5. While admitting this Petition on 3.8.1994,
 this Court directed that the petitioner shall not
 be substituted by any one selected in the post of
 Lecturer in Zoology in pursuance of the impugned
 advertisement. Consequently, the petitioner
 continued in service during the last more than
 fourteen years, which fact is not disputed.

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 .[5].

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 6. The respondent-Management in its reply,
 while opposing the Petition relied upon the
 Government Resolution dated 12.7.1989 so as to
 submit that de-reservation of a post on account of
 non-availability of the reserved category
 candidates for a continuous period of three years
 or more is not automatic and, therefore, there was
 no vested right in favour of the petitioner for
 being confirmed against a reserved vacancy. The
 fact remains that on account of a Lecturer from
 Zoology having been appointed as the Principal, an
 additional vacancy was available for the
 petitioner as the said Lecturer was confirmed in
 the post of Principal in August, 1995. The
 petitioner has been continued in the said vacancy
 which is a permanent post all these years.
 Moreover, the petitioner has not blocked any
 reserved category post as per the reservation
 roster.

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 7. It is pertinent to note that the University
 has not filed any reply so as to contest the claim
 of the petitioner. That the petitioner is
 qualified and has a good service record is not

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 .[6].

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 denied. In addition to this, during the oral

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 arguments the learned counsel for the
 respondent-Management fairly conceded that the
 petitioner has been working against a regular
 vacancy during the pendency of this Petition. In
 an unreported decision of this Court dated
 5.4.2004 passed in W.P.(Ldg.) No.3246 of 2003

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 (Reddy Baini Damodar Vs. J.M.Patel College of

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Commerece and Ors.), a similarly situated
 Lecturer’s case was considered by this Court. In

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 the said case the petitioner Lecturer had worked

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 for 13 years against a reserved post and inspite
 of the advertisement being released the Management
 could not appoint a candidate belonging to

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 backward class. By relying upon an earlier

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 decision of this Court in the case of Kakoti

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Shyamlal Sircer Vs. Nagpur University & Ors.

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 reported in 2002 (2) Mah.L.J.673, this Court

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 directed the State Government to de-reserve the

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 post and regularise the services of the

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 petitioner. The petitioner before us has a better
 case inasmuch as during the pendency of this
 Petition, she has been continuously working for
 more than 13 years against a regular post and it

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 .[7].

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 is not the case of the University or the College

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 that the said post is for reserved category.

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 8. Under these circumstances without
 considering the petitioner’s challenge to the
 impugned advertisement as well as the Government
 Resolution dated 12.7.1989, we are of the opinion
 that the petitioner is required to be regularised
 in service at least from August, 1995. The G.R.
 dated 12.7.1989 has been amended/revised from time
 to time and hence we need not consider the
 petitioner’s challenge to the same at this stage.

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 9. In the result, the Petition is allowed and

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 the petitioner is directed to be regularised as
 Lecturer in Zoology from August, 1995. Needless
 to say that her pay-scale etc. as a permanent
 Lecturer shall be given as per the Rules
 prescribed by the University Grant Commission and
 followed by the State of Maharashtra. Rule made
 absolute accordingly. No order as to costs.

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 [DR.S.RADHAKRISHNAN,J.]

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 .[8].

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 [SMT.V.K.TAHILRAMANI,J.]

Mrs.Rupa Rameesh Phatak v. the Secretary and Ors.

Case brief

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What did the court decide?

Mrs.Rupa Rameesh Phatak v. the Secretary and Ors.

Case brief

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