Dismissed

The Principal K.J.Somaiya College of Arts and Commerce and Ors. v. Nalini v.Karnad and Ors.

Bombay HC13 Apr 2006WP/3142/2002

Case brief

AI extract

What is this about?

Single Judge dismissed two writ petitions. The petitioners challenged the Tribunal's order allowing an appeal and reinstating a teacher converted from full-time to part-time. The Tribunal held the conversion constituted a reduction in rank under the Maharashtra Universities Act, 1994. The High Court held that such conversion did not affect the rank or cadre, thus the Tribunal lacked jurisdiction.

What did the court decide?

Impugned order and judgment dated 8.4.02 scheduled by the Tribunal in appeal no.39 of 2000 were quashed and set aside; the said appeal was dismissed.

The Principal K.J.Somaiya College of Arts and Commerce… — Service and Employment | Bombay HC (2006)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 APPELLATE SIDE

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 WRIT PETITION NO.4726 OF 2001

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 The Principal, K.J.Somaiya College
 of Arts and Commerce ..Petitioners
 Vs.

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 Mrs.Nalini V.Karnad and Anr ..Respondents

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 WITH

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 ORDINARY ORIGINAL CIVIL JURISDICTION

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 WRIT PETITION NO.3142 OF 2002

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 The Principal, K.J.Somaiya College
 of Arts and Commerce ..Petitioners

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Vs.

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 Mrs.Nalini V.Karnad and Anr ..Respondents

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 Mr.Kiran Bapat for the petitioners

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 Mr.Mihir Desai a/w Ms.Ushajee Peri for the
 respondent no.1

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 CORAM : S.U.KAMDAR, J
DATED : 13TH APRIL, 2006

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 ORAL JUDGMENT:

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 1. These two petitions are filed by the
 petitioners challenging the two orders dt.6.4.01
 and 8.4.02 in appeal no.39 of 2000. By an order

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 dt.6.4.01, the Tribunal has granted condonation of
 delay in filing the appeal whereas by the final
 order dt.8.4.02 the appeal of the respondent has
 been allowed and the order of the College dt.1.8.97
 appointing the respondent as a part time teacher
 instead of full time lecturer has been quashed and
 set aside with consequent direction to reinstate
 the petitioners as a full time teacher with all
 benefits including back wages. Some of the
 material facts of the present case are briefly
 enumerated as under:

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 2. The respondent no.1 was appointed on 8.7.91
 as a lecturer in subject of Kannada in Petitioner
 College. Respondent no.1 holds qualification of
 B.A. and M.A. with Kannada as principal subject.
 On 5.10.93 the respondent no.1’s services were
 terminated due to non availability of required
 number of students in Kannada as the respondent
 no.1 had declined to take the lectures in
 foundation course. Against the said order, the
 respondent no.1 filed an appeal being appeal no.49
 of 1996 before the Hon’ble University and College
 Tribunal, Bombay challenging the order of

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 termination dt.5.10.93. Before the Tribunal, the
 respondent no.1 teacher agreed to take lectures in
 foundation course for First year and Second year
 students and therefore the petitioner took back the
 said respondent in terms of the settlement arrived
 at in appeal no.49 of 1996. On 1.8.97 the
 petitioner converted the appointment of respondent
 no.1 from full time lecturer to part time lecturer
 in foundation course because according to the
 petitioner one division each of first year and
 second year students of Commerce for the year
 1997-98 was reduced and due to which there was no
 sufficient work load for the respondent no.1. On
 30.3.98 the respondent no.1 approached the
 grievance committee and forwarded her grievance to
 the pro-vice chancellor, Chairman of the Grievance
 Committee, University of Mumbai. On 27.5.98 the
 petitioner informed the university that the
 respondent no.1 has been appointed as part time
 teacher because of non availability of sufficient
 work load. On 11.1.99 it is the case of the
 petitioners that both the parties were called
 before the Grievance Committee and the grievance
 committee informed the parties that the complaint

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 before the grievance committee is not maintainable

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 and the parties to take appropriate steps in
 accordance with law to redress their grievances.
 However, it is the case of the respondent that she
 was informed of grievance committee decision only
 on 8.8.00 orally and therefore she has filed an
 appeal on 22.8.00 before the University and College
 Tribunal. On 30.4.01 the respondent no.1 has
 already attained the age of super annuation and has
 retired from services.

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 3. On 6.4.01, the Tribunal passed an order
 granting condonation of delay of 1075 days on the
 ground that the proceedings were pending before the
 grievance committee. It is this order dt.6.4.01
 has been challenged by the petitioner in writ
 petition no.4726 of 2001. Ultimately, on 8.4.02,
 the Tribunal disposed of the appeal finally and by
 the said order, the Tribunal has directed the
 respondent no.1 to be reinstated in the post of
 full time teacher and has further directed that she
 should be given consequential benefits including
 the back wages as full time lecturer. Writ
 Petition no.3142 of 2002 is filed challenging the

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 said final order passed by the Tribunal in appeal

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 no.39 of 2000. The learned counsel for the
 petitioners has submitted that the power exercised
 by the Tribunal for condonation of delay u.s.5 of
 the Limitation Act is totally perverse and baseless
 as no sufficient cause has been made out by the
 respondent no.1 for condonation of delay of 1075
 days. It has been contended by the learned counsel
 for the petitioners that infact the grievance
 committee rejected the application of the
 respondent no.1 in a committee meeting dt.14.1.99
 and not on 8.8.00 as pleaded by the respondent no.1
 in application for condonation of delay. It has
 been submitted that thus even if the period of
 application pending before the grievance committee
 is excluded i.e.14.1.99 still filing of an appeal
 on 22.8.00 which is more than a year and half,
 there is no case made out for condonation of delay.

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 4. On the other hand, the learned counsel for

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 the respondent has submitted that rejection of the
 application by the grievance committee was only on
 8.8.00 and an appeal is filed on 22.8.00. Thus
 there is no delay of 1075 days. The delay is only

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 of few days and therefore condonation should be
 granted. The learned counsel has further submitted
 that the application is made for 1075 days because
 there is no provision for extension of time for
 application pending before the grievance committee
 and therefore the same is only to show that there
 is sufficient case made out for the purpose of
 condonation of delay.

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 5. I am of the opinion that in a writ
 jurisdiction under Article 226 of the Constitution
 of India, the order which is discretionery in
 nature exercised by the Tribunal for granting
 condonation of delay should normally not be
 interfered with. In the present case, there is a
 dispute on the date on which the grievance
 committee has rejected the application.
 Admittedly, the rejection is oral and not in
 writing. Petitioners are contenting that the same
 is on 14.1.99 whereas the respondents are
 contenting that the same is on 8.8.00. In cases of
 such a nature of dispute, I am of the view that the
 Tribunal was right and justified in accepting the
 contention of respondent no.1 in granting

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 condonation of delay and hearing the appeal on

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 merits. In my opinion, even if the Tribunal has
 erred it is on the right side of the justice and
 thus, the order impugned in the said writ petition
 does not call for any interference. In that light
 of the matter, the appellate side writ petition
 4726 of 2001 has no substance and the same is
 accordingly dismissed.

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 6. Now turning to writ petition no.3142 of
 2001 which is challenging the final order passed by
 the Tribunal dt.8.4.02 . The learned counsel for
 the petitioners has contended that the Tribunal has
 no Jurisdiction to entertain the appeal on merits.
 The learned counsel has contended that the
 Jurisdiction of the Tribunal is u.s.59 of the
 Maharashtra Universities Act, 1994. The Provisions
 of s.59 of the said act interalia reads as under:

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 "59. (1) Notwithstanding anything
 contained in any law or contract for the
 time being in force, any employee (whether
 a teacher or other employee) in any
 university, college or recognised
 institution (other than that managed and
 maintained by the State Government, Central
 Government or a local authority), who is

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 dismissed or removed or whose services are
 otherwise terminated or who is reduced in
 rank by the university or management and
 who is aggrieved shall have a right of
 appeal and my appeal against any such order
 shall lie to the Tribunal.

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 Provided that, no such appeal shall lie to
 the Tribunal in any case where the matter
 has already been decided by a court or
 Tribunal of competent jurisdiction or is
 pending before such court or Tribunal on
 the date of commencement of this Act or
 where the order of dismissal, removal,
 otherwise termination of service or
 reduction in rank was passed by the
 management at any time before the date on
 which this Act comes into force and in
 which case the period for filing an appeal
 has expired.

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 (2) Such appeal shall be made by the
 employee to the Tribunal, within thirty
 days from the date of receipt by him of the
 order of dismissal, removal, otherwise
 termination of services, or reduction in
 rank, as the case may be:

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 Provided that, where such order was made
 before the commencement of this Act, such
 appeal may be made if the period of thirty
 days from the date of receipt of such order
 has not expired.

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 (3) Notwithstanding anything contained in
 sub-section (2), the Tribunal may entertain
 an appeal made to it after the expiry of
 the said period of thirty days, if it is
 satisfied that the appellant had sufficient
 cause for not preferring the appeal within
 that period.

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 (4) Every appeal shall be accompanied by a
 fee of four hundred rupees which shall not
 be refundable and shall be credited to the
 university fund:

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 Provided that it shall be lawful for the
 State Government to revise, by notification
 in the Official Gazette, such fees as it
 may deem fit from time to time."

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 7. The learned counsel for the petitioners has
 contended that in the light of the limited
 Jurisdiction conferred u.s.59 of the Maharashtra
 Universities Act, 1994, the case of the nature in
 the present petition is not covered by the said
 provisions of s.59 of the Maharashtra Universities
 Act, 1994. It has been submitted that the
 petitioner is neither dismissed nor removed from
 service or otherwise terminated and thus, the
 Tribunal could not have Jurisdiction to entertain
 the appeal. It has been further submitted that the
 word ’reduced in rank’ also does not apply in the
 facts of the present case because there is no
 reduction in rank. The petitioner was full time
 lecturer in the foundation course and his services
 has been converted as part time lecturer. It has
 been submitted that converting from full time
 lecturer to part time lecturer does not mean
 reduction in rank.

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 8. In support of the aforesaid contention, the
 learned counsel has relied upon the judgment of the
 Apex court in the case of Shitla Sahai Srivastava
 V. General Manager, North Eastern Railway,
 Gorakhpur reported in AIR 1996 Supreme Court 1197
 particularly para 15 of the said judgment which
 reads as under:

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 "(15) Learned counsel for the appellant has
 relied upon the decision of a Single Judge
 of the High Court of Calcutta as supporting
 his contention that the deletion of the
 appellant’s name from the panel would
 amount to a reduction in rank. That
 decision is reported as Dineshwar v. Chief
 Commercial Superintendent, Eastern Railway,
 AIR 1960 Cal 209. at p.211, the learned
 Judge observed:

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 "The question is whether the striking of
 the petitioner’s name from the panel, has
 affected his future right of promotion. In
 my opinion, the inescapable conclusion is
 that it has so affected the petitioner. As
 I have mentioned above, promotion from
 Class III post to Class II post is to be
 done according to the recommendations made
 by Selection Boards. Where there is such a
 list or a panel, then a person not in the
 list cannot hope to be promoted. It is
 implied, that in order to have a chance of
 promotion, the petitioner would have to be
 in the selection list, that is to say, in
 the panel. But with regard to the second
 contention, viz., that the striking out of
 his name from the panel affected his
 chances of future promotion, it is a point
 of substance and must be upheld. What the

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 authorities should have done before
 striking out the name of the petitioner
 from the panel was to give him as
 opportunity of showing cause as to why his
 name should not be struck off from the
 panel, and the order could only be made
 after giving the petitioner an opportunity
 of being heard.

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 We are of opinion that this is not a
 correct statement of the laws, in view of
 the decision of this court in High Court,
 Calcutta v. Amal Kumar Rov. 1963-1 SCR
 437. (AIR 1962 SC 1704). There the facts
 were these. The respondent was a Munsif in
 the West Bengal Civil Service (Judicial).
 When the cases of several Munsifs came up
 for consideration before the High Court for
 inclusion of names in the panel of officers
 to officiate as subordinate Judges, the
 respondent’s name was excluded. He was
 told by the Registrar of the Court, on a
 representation made by him, that the Court
 had decided to consider his case after a
 year. As the result of such exclusion, the
 respondent, who was then the seniormost in
 the list of Munsifs, lost eight places in
 the cadre of Subordinate Judges before he
 was actually appointed to act as an
 Additional Subordinate Judge. He filed a
 suit praying that a declaration might be
 made that he occupied the same position in
 respect of seniority in the cadre of
 Subordinate Judges as he would have done if
 no supersession had taken place. his case,
 in substance was that as a result of the
 High Court’s order he was reduced by eight
 places in the list of Subordinate Judges,
 and that in law amounted to reduction in
 rank within the meaning of Art.311(2) of
 the Constitution. This Court held at p.453
 (of SCR) :(at p.1710 of AIR) as follows:

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 "In our opinion, there is no substance in
 this contention because losing places in
 the same cadre namely, of Subordinate
 Judges does no amount to reduction in rank,

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 within the meaning of Art.311(2). The
 plaintiff sought to argue that ’rank’, in
 accordance with dictionary meaning,
 signifies ’relativeposition or status or
 place’, according to Oxford English
 Dictionary. The word ’rank’ can be and has
 been used in different senses in different
 contexts. The expression ’rank’ in
 Art.311(2) has reference to a person’s
 classification and not his particular place
 in the same cadre in the hierarchy of the
 service to which he belongs. Hence, in the
 context of the Judicial Service of West
 Bengal, ’reduction in rank’ would imply
 that a person who is already holding the
 post of a Subordinate Judge has been
 reduced to the position of a Munsif, the
 rank of a Subordinate Judge being higher
 than that of a Munsif. But Subordinate
 Judges in the same cadre hold the same
 rank, though they have to be listed in the
 order of seniority in the Civil List.
 Therefore, losing some places in the
 seniority list is not tantamount to
 reduction in rank. Hence, it must be held
 that the provisions of Art.311(2) of the
 Constitution are not attracted to this
 case."

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 This decision has established the following
 principle, viz., the expression ’rank’ in
 Article 311(2) has reference to a person’s
 classification and not his particular place
 in the same cadre in the hierarchy of the
 service to which he belongs and, therefore,
 losing some places in the seniority list is
 not tantamount to reduction in rank within
 the meaning of Art.311(2) of the
 Constitution."

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 9. By relying on the aforesaid, the learned
 counsel for the petitioner has contended that

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 reduction in rank presupposes reduction from one

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 cadre to another cadre which is lower in rank. It
 has been submitted that appointment as full time
 lecturer or part time lecturer is neither change of
 a cadre nor it is a lower rank and therefore the

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 word ’reduced in rank’ used in s.59 of the
 Maharashtra Universities Act, 1994 cannot be
 applied for the purpose of entertainment of the
 appeal by the tribunal.

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 10. On the other hand, the learned counsel for
 the respondent has relied upon two judgments of
 this court in the case of Shri Somsingh
 Chandrasingh Thakur vs. Head Master, Capt.R.M.Oak
 High School, Autta Ali Kalyan West, Dist.Thane and
 ors reported in 2004(4) ALL MR 401 and unreported
 judgment of the learned single Judge of this court
 in the case of The Principal, Wilson College of
 Arts and Science Vs. Dr.Ms.Vaishali Dabke and Ors
 decided on 13.4.05 being writ petition no.1604 of
 2002. The learned counsel for the respondent by
 relying on the aforesaid judgments has contended
 that the word ’reduced in rank’ must be construed
 in the widest possible meaning so as to cover all

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 kinds of cases and it should be given a liberal
 meaning and not restrictive meaning so as to confer
 the Jurisdiction on the Tribunal rather than
 denying the same and therefore it has been
 submitted that the word ’reduced in rank’ appearing
 in s.59 of the Act must also include all cases
 where employees services who were in full time and
 now converted in part time and should be covered by
 the words ’reduced in rank’.

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 11. The learned counsel for the respondent has
 submitted that otherwise there would be various
 categories of cases which would not be covered by
 the provision of s.59 of the Act and the Tribunal
 would not be able to dispense with effective
 justice when it comes to the case of teachers. He
 has submitted that in the college there is no
 reduction in rank because there are no different
 cadres since there is only post of lecturers and
 there are no other categories of posts and
 therefore the word ’reduction in rank’ should be
 considered and mean all kinds of cases where the
 pay scale of the employee has been adversely
 effected and consequently it should be covered by

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 the meaning of the word ’reduction in rank’.

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 12. I have considered the rival contention of

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 the parties and I am of the opinion that provision
 of s.59 of the Maharashtra Universities Act, 1994

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 is clear when it considers the word ’reduction in
 rank’ by the management. The word ’reduction in
 rank’ is a word which is well recognised and well
 defined under the Industrial and Labour Law.
 Judgment of the apex court though arose in a case
 under Article 311(2) of the Constitution, it has
 considered the expression ’rank’ as meaning a
 persons qualification in a cadre in the hierarchy
 of service to which he belongs. In my opinion, for
 the purpose of ’reduction in rank’ there has to be
 a rank and the rank means a person must have a
 cadre and or a designation in a particular cadre in
 the hierarchy which has been specified in any
 employment. It cannot be that a person whose pay
 scales are effected would automatically amount to a
 reduction in rank.

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 13. I am of the opinion that if the legislature
 has decided to confer the restrictive Jurisdiction

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 on the Tribunal then it is not open for the court

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 to read the word in a manner which would include
 even those class of cases which are deliberately
 and intentionally omitted by the legislature while
 drafting the provisions. The word ’reduced in
 rank’ mean those cases where the employees are
 shifted from higher grade to lower grade. Whether
 pay scale is effected or not if the employee is
 shifted to the lower cadre it would amount to
 reduction in rank and then only person is entitled
 to approach the Tribunal u.s.59 of the Maharashtra
 Universities Act, 1994.

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 14. I am of the view that in the present case
 where respondent no.1’s rank is not reduced as
 respondent no.1 was a lecturer and continues to be
 a lecturer and merely his pay scale is effected by
 changing her from full time lecturer to part time
 lecturer would not be covered by virtue of
 provisions of s.59 of Maharashtra Universities Act
 and thus, the Tribunal had no Jurisdiction to
 entertain the said appeal. In that view of the
 matter, impugned order and judgment dt.8.4.02 is
 required to be quashed and set aside and the appal

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 no.39 of 2000 is required to be dismissed.

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 Petition is made absolute accordingly. However,

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 there shall be no order as to costs. In view of

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 the dismissal of petition, petitioner will be
 entitled to refund of the amount deposited towards
 the back wages in this court. Petitioners will be
 at liberty to withdraw the same with accrued
 interest if any.

The Principal K.J.Somaiya College of Arts and Commerce and Ors. v. Nalini v.Karnad and Ors.

Case brief

What is this about?

What did the court decide?

The Principal K.J.Somaiya College of Arts and Commerce and Ors. v. Nalini v.Karnad and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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