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Judgment
Bharati H. Dangre,J
Rule. Rule made returnable forthwith.
Heard by consent.
The petitioner a lecturer working with the respondent No.1Âcollege is seeking issuance a writ of mandamus to dereserve the post to which she was
appointed on probation from 05Â07Â1999 and seeking regularization of the services subsequent to her confirmation and for release of consequential
benefits. The brief chronological facts and events leading to the filing of the present Writ Petition are culled out as under.
The petitioner, holder of M.Sc. degree in Mathematics and belonging to Open Category appeared before the selection committee duly constituted
by Respondent No.1 in furtherance of on advertisement and came to be appointed w.e.f. 05Â07Â1999 on the post of full time lecturer
in Mathematics. The order of appointment which is placed on record reflects that the appointment was made purely on temporary basis on the post
which was reserved for Scheduled Tribe Category. The appointment order stipulated that the appointment would continue till the end of the
academic year 1999Â2000 on the basic pay of Rs.2200/Â per month in the pay scale of Rs.2200Â75Â2800Â75Â100Â4000 plus admissible
allowances. It was also specified in the order, that the appointment was on a post reserved for the ST Category and the petitioner will have no claim
on the said post on expiry of the period mentioned in the order. The petitioner’s appointment dated 23rd July 1999 continued till the end of
academic session. It is the specific case of the petitioner that the appointment continued for the subsequent years, since no candidate from the ST
category was made available through the respondent No.1ÂManagement issued advertisement for more than 7 years. In the meantime the
petitioner was reduced in the pay scale on account of non-passing of NET/SET examination and she was constrained to approach the school tribunal,
and by order dated 02.05.2002, the School Tribunal set aside the reduction. The petitioner has placed on record various advertisements issued by
respondent No.1 from time to time. It is the specific case of the petitioner that after 2004 no advertisement was issued however, the petitioner
continued to work on the post of the lecturer in view of the subsequent appointment orders issued every year. On 08.04.2009 a proposal for seeking
exemption from passing of the NET/SET examination which was prescribed eligibility was forwarded to the University Grants Commission by the
respondent No.1.
It is the specific case of the petitioner that on 11.09.2003 the State Government issued directions to the Educational Authorities, thereby intimating that
those lecturers who were appointed between 22.10.1992 to 3.4.2000, be continued even if they are not equipped with the necessary qualification and
satisfied eligibility prescribed by the UGC in the form of passing of NET/SET examination. In light of the said communication, it is the contention of
petitioner that she was fully qualified to occupy the said post of full time lecturer in Mathematics in respondent No.1College. It is also the contention
of the petitioner that in the light of the Educational Qualifications and also in view of the facts' that though the management had advertised the said
post on more than six occasions, no candidate was made available from ST category and then the post was liable to the dereserved and petitioner was
entitled to continue on the post of lecturer in Mathematics in the Respondent No.1ÂCollege. The petitioner has also placed on record the policy
decision contained in various Government Resolutions and in specific in Resolution dated 05.12.1994 which stipulates that on expiry of period of six
years, if a post is reserved for particular category and the candidate from the said category is not available, then, the post deserves a conversion
into another category as specified in the GR and on the seventh year, is entitled to be dereserved on an application/proposal being forwarded to the
General Administration Department of the State Government.
The petitioner preferred several representations in the light of the said policy of the State Government and prayed for dereservtion of the said post
and made a specific request for confirming her services as Lecturer in Mathematics with effect from 05.07.1999. The petitioner categorically
submit that on her initial appointment, she was conferred with the regular pay scale as mentioned in the order of appointment and received pay scale
from time to time except the increments, for which she approached the Hon'ble Court by filing Writ Petition and this Hon'ble Court allowed the said
Writ Petition and granted the benefit to her.
However, since the petitioner's post was not dereserved, she constrained to approach this Court by filing the present Writ Petition praying for the
relief of dereserving the said post and accommodating her on the post of lecturer with effect from 05.07.1999 as a probation and treating as
permanent lecturer from 2001 with all the consequential benefits.
In response, to the petitioner affidavit in reply is filed by the respondent No.1 through the Registrar, in which the chronology of facts of events is not
denied. However, in paragraph No. 7 of the said affidavit, a categorical statement has been made that the petitioner was appointed on the post
which was reserved for ST Category and though the petitioner was allowed to continue on the said post, the said post was not inadvertently advertised
in the 06th year and therefore dereservation proposal should not be forwarded by the respondent No.1ÂCollage to the respondentUniversity for its
onward transmission to the State Government as prescribed by the GR dated 05.12.1994.
We have heard the learned Senior Counsel Shri.Desai appearing for the petitioner and learned counsel Shri.Rodrqiues appearing for the respondent
No.1ÂCollege.
The learned Senior Counsel Shri.Mihir Deasi appearing for the petitioner would submit that the petitioner was duly qualified to hold the post of
lecturer in Mathematics and even the State Government by the Communication dated 11.09.2013 has specifically exempted the category of lecturer
like the petitioner from possessing the prescribed qualification of NET/SET as prescribed by the UGC. The learned Senior Counsel would place
heavy reliance on policy of the State Government as contained in the GR dated 05.12.1994 which prescribes the modalities to be followed in
dereserving the post or exchanging the post when it is made available for a candidate from reserved category and on non-availability of the said
candidate for a particular number of years, the post is required to be exchanged with the candidate from other category as prescribed in the GR and
on expiry of the 7th year is entitled to be dereserved. Based on the said policy decision of the State Government as reflected in the GR issued from
time to time, the learned counsel for the petitioner would submit that the petitioner was appointed in the year 1999 was continued on the said post and
the advertisements issued from time to time have been placed on record and it is specific contention of the learned counsel for the petitioner that the
post came to be advertised for the ST Category for more than 7 years, however, no suitable candidate from the said category was made available and
in such circumstances in the light of the policy decision of the State Government, the respondent No.1 ought to have forwarded the proposal for
dereservation of the said post to the University and subsequently it ought to have been forwarded to the General Administration Department. The
learned counsel would submit that failure on the part of the respondent No.1 to forward the said proposal would not deprive the petitioner of her
rightful claim to be continued on the said post since 1999 and when she also possesses the qualification as prescribed by the University Grants
Commission. Per contra the learned counsel appearing for the University would submit that there is no right vested in the petitioner to claim a
dereservation of the post. He would rely on a specific statement made in the affidavit that the post was not inadvertently advertised in the 6th year
and respondent No.1 failed not to forward proposal for dereservation in the next academic year.
We have carefully considered the petition along with its annexures and the affidavit in reply and the submissions of the respective learned counsels
appearing for the rival parties. Perusal of the policy of the Government as contained in GR dated 05.12.1994 would reveal that the State
Government contemplated a situation where the post is reserved for a particular category and the candidate is not made available for a stipulated
period, then the State Government postulated derservation of the said post. Initially the policy decision of the State Government as contained in the GR
dated 29.12.1986 required the advertisement to be published for a period of three years, thereafter, if the candidate from the said category is not
available to fill the said post, the post is liable to be desreserved. However, in supercession of the said GR dated 29.09.1986, State Government
issued the Resolution on 05.12.1994 reÂframing that policy and specifying that if a candidate from SC/ST Category or a candidate belonging to VJÂ‐
A/VJÂB, NTÂA/NTÂB is not available inspite of issuance of advertisement for the sixth year then, the post is liable to be inter changed as specified
in the Resolution and the Government Resolution further stipulates that if inspite this exercise being carried out, no candidate is made available on the
seventh advertisement then the said post is liable to be dereserved and candidate belonging to the Open Category can be accommodated on the said
post.
Perusal of the facts in the present case reveal that the petitioner was appointed by order dated 23.07.1999 and her appointment order issued with
effect from 05.07.1999 categorically mentioned that the said appointment was purely on temporary basis against the post reserved for ST Category till
the end of academic year 1999Â2000. It was also made clear that the petitioner would not stake any claim since the post was reserved for ST
Category. However, it is not in dispute that subsequent to the said order of appointment, the appointment of the petitioner as a lecturer in Mathematics
continued for the subsequent years and the advertisements were issued till the year 2004, however, after 2004 no advertisement was issued and the
petitioner continued to work as a lecturer in respondent No.1ÂCollage in subject Mathematics. As far as the educational qualifications of the
petitioner are concerned the State Government has clarified by communication dated 11.09.2013, in furtherance of the communication from the
University Grants Commission that the candidates who do not possess the eligibility criteria as prescribed by the UGC namely passing of NET/SET
examination and those lecturers who were appointed between 23.10.1992 to 03.04.2000, and who have not obtained NET/SET Ph.D/M.Phil degree,
the said lecturers were entitled or held to be eligible to be confirmed as lecturer subject to the conditions stipulated in the said communication, which
included the condition of a Regular appointment to the said post on following the prescribed procedure. The petitioner was selected by duly
constituted selection committee constituted by respondent No.1 and on such selection, was issued an order of the appointment. The petitioner fulfills
the criteria of the said communication dated 11.09.2013. Another condition stipulated in the said communication was in respect of the 'exemption' from
passing of NET/SET Examination being sought or acquired. The application was already forwarded in respect of the petitioner seeking an exemption
from holding eligibility criteria by a communication addressed by respondent No.1 in 08.04.2009 and the said application was kept pending. However,
since 11.09.2013 the State Government itself had clarified that those lecturers who were appointment between 23.10.1999 to 03.04.2000, even in
absence of passing to NET/SET examination or possessing Ph.d/M.Phil degree were held to be eligible or qualified to be appointed/confirmed as a
lecturer. The eligibility criteria as far as educational qualification is concerned was then fulfilled by the petitioner. Since it is the specific case of
the petitioner after 2004 the advertisement was not issued by the college and she continues to work as lecturer on the basis of the qualifications from
her initial appointment with effect from 05.07.1999, the petitioner cannot be said to be at fault, if the advertisement is not issued by the respondent in
the sixth year. The respondent No.1 also admitted in the affidavit in reply that inadvertently the advertisement was not issued in the sixth year and the
proposal for dereservation was not forwarded to the University which could have in turn been forwarded to the General Administration Department as
stipulated in the GR 05.12.1994.  In any case the petitioner cannot be made to suffer on account of the in action on the part of the respondent
No.1 since, admittedly the petitioner is working and is in continuous employment of Respondent No.1 from 05.07.1999.
In such circumstances there is no legal impediment in continuing the appointment of the petitioner and treating the said appointment of the petitioner as
a regular appointment made after following due procedure, since, selection was made by duly constituted selection committee and thereafter
appointment order was issued. The petitioner is also armed with necessary and requisite educational qualification and hence, the petitioner is entitled
for the relief sought in the petition namely of continuing her services as regular lecturer with effect from 05.07.1999 and she is entitled to being treated
as permanent with effect from 04.07.2001 on completion of period of probation and all the consequential benefits following therefrom. The
petitioner has rightly placed reliance on the judgment by this Hon'ble Court in the case of Harshendu Vinayak Madge V/s. Chembur Trombay
Education Society and also a judgment in case of Sanjay Ragunath Gadakh V/s.N.D.M.V.P. Samaj and Others2, wherein, in a similar situation this
Hon'ble Court had directed the dereservation of the post and had confirmed the respective petitioners in their post in the light of the policy decision of
the State Government of dereserving the post after requisite number of years as the candidate from reserved category is not available to occupy the
post. Hence in light of the aforesaid discussion, the Writ Petition deserves to be allowed with the following directions.
ORDER
 (i) The respondent Nos.1 and 2 are directed to dereserve the post occupied by the petitioner as a lecturer in Mathematics in the Respondent
No.1ÂCollege and the petitioner is directed to be treated as a regularly appointed lecturer with effect from 05.07.1999 and is to be treated as
permanent lecturer with effect from 04.07.2001. Needless to say that the petitioner[A1]  is held entitled for all the consequential benefits on she
being confirmed as regular lecturer with effect from the said dates and all the consequential benefits including any difference in the monetary pay
scale, if any, be paid by the respondent No.1ÂCollege to the petitioner with in a period of three months from today.
Writ Petition is allowed. Rule is made absolute.
[A1]