AI Structured Summary
Not yet generated for this judgment
Judgment
R.K. Deshpande, J.
1.Rule, made returnable forthwith. Heard finally by consent of the learned counsels appearing for the parties.
2.The challenge in this petition is to the judgment and order dated 16-9-2015 passed by the University and College Tribunal, Nagpur, dismissing Appeal
No.N-11/2011 challenging the termination from service by an order dated 2-9-2011 with effect from 3-10-2011.
The facts of the case are as under :
On 29-10-2009, the post of Assistant Professor in Botany in the respondent Nos.1 and 2/College was advertised. The duly constituted Selection Board
selected the petitioner, who possessed the qualifications of M.Sc. in Botany, N.E.T. and Ph.D. for the appointment to the said post. According to the
petitioner, she was appointed on probation on 21-11-2009 for a period of two years. The appointment of the petitioner was approved by the respondent
No.3- Rashtrasant Tukdoji Maharaj Nagpur University, Nagpur, on 16/21-6-2010 for the Academic Session 2009-10 onwards. It is not in dispute that
the respondent No.4- The Joint Director of Higher Education, Nagpur Division, Nagpur, also approved this appointment and consequently the salary
grants available to the said post were released and the petitioner was accordingly paid her regular salary. On 2-9-2011, the petitioner was terminated
from service with effect from 3-10-2011 on the exclusive ground of insufficient workload according to the Norms and Rules laid down by the Higher
and Technical Education Department, Government of India. This was challenged before the College Tribunal, which has dismissed the appeal of the
petitioner by its impugned judgment and order dated 16-9-2015.
4.The petitioner has placed before this Court the workload charts in respect of the subject Botany, available in the respondent No.2-College. Three
posts of Assistant Professor in Botany were sanctioned and the petitioner was the third appointee on 21-11- 2009, having full workload of twelve
periods per week. It is not in dispute that during the Academic Session 2011-12, the workload was reduced and consequently the termination took
place. The workload chart for the period subsequent to 2011-12 shows the availability of workload after accommodating two full- time Assistant
Professors, as under :
2012-13 12 periods per week
2013-14 24 periods per week
2014-15 24 periods per week
2015-16 30 periods per week
2016-17 32 periods per week
Though the petitioner was out of employment, the additional workload probably was carried out by the remaining two appointees, out of which one Dr.
S.P. Landge expired on 19-1- 2018. The position of workload reflected in the charts filed at Annexure-C to the additional affidavit was not placed
before the College Tribunal, but before this Court, no dispute is raised in respect of it either by the College, University or by the Joint Director of
Higher Education, though the reply is filed to such additional affidavit.
5.It is the categorical statement made by the learned counsel appearing for the respondent Nos.1 and 2/College that though one post of Dr. Landge
has fallen vacant on 19-1-2018, the petitioner cannot be directly appointed to the said post and the procedure for fresh appointment will have to be
followed. This is also the stand taken by the Joint Director of Higher before this Court. In addition to it, it is also the stand taken by the Joint Director
that the staff approval will have to be obtained from the State Government, and in the absence of it, the approval cannot be granted to the appointment
of the petitioner even if it is proposed on the post which fall vacant on account of the death of Dr. Landge on 19-1-2018. It is also the stand taken by
the Joint Director that there is a ban on fresh recruitment and unless it is lifted no further approval can be granted to any appointment.
6.It is not in dispute that the initial appointment of the petitioner on probation for a period of two years on 21-11-2009 was approved not only by the
University but also by the Joint Director of Higher Education. The post held by the petitioner was permanent and sanctioned for providing grant in aid
also. The appointment of the petitioner on probation could not have been terminated abruptly on the ground that there was insufficient workload,
particularly when it is neither a case nor there is any order to show that the post was abolished. Actually, it is not the case of the termination as a
probationer for non-satisfactory work, conduct or behaviour, but it is a case of retrenchment from service for want of sufficient workload. From the
chart placed on record, it is apparent that only for the year 2011-12, there was deficit workload, but thereafter continuously full-time workload was
available to the third post of Assistant Professor in Botany. In such a situation, the question of granting staff approval afresh does not at all arise and
the stand taken by the Joint Director is nothing but misrepresentation before this Court, diverting the attention from the main issue involved in the
matter. Similarly, it does not lie in the mouth of the Management to say that the fresh process of recruitment will have to be carried out.
7.The controversy involved in the matter is covered by the decision of the Division Bench of this Court in Writ Petition No.4319 of 2013 [Dr. Jayshree
w/o Kishor Bhusari v. St. Francis De Sales College (SFS), Seminary Hills, Nagpour, through its Principal and others] delivered on 18-10-2013. The
relevant portion in the said decision is reproduced below :
We find that the submissions made by the learned Counsel on behalf of respondent Nos.1 & 2 are vexatious. It is not in dispute that the post of
Assistant Professor in subject Hindi is vacant due to retirement of full time lecturer. It is also not in dispute that the post which is fallen vacant is not
reserved for any category and as such there is no impediment to absorb the petitioner in that post. It is not in dispute that the only ground for
terminating the services of the petitioner was reduction in the workload i.e. the wordkoad coming below the minimum requirement. Undisputedly, due
to the other person retiring, now the workload has become available and as such the petitioner can be very well accommodated on the said post.
Needless to state that no other ground has been given by the Management while terminating the services of the petitioner.
In that view of the matter, we are inclined to allow the writ petition. Respondent No.1-Management is directed to reinstate the petitioner on the post of
Assistant Professor in subject Hindi. Respondent Nos.4 and 5 shall grant the approval to the reinstatement of t he petitioner. It is made clear that
though the petitioner would be entitled to continuity in service, she is not entitled to any back wages during the period for which she was out of
employment.
The decision is rendered in respect of the employee of the same College and no different view can be taken in the present case.
8.In view of above, this petition is allowed. The order of termination dated 2-9-2011 passed by the respondent Nos.1 and 2/Management, is hereby
quashed and set aside. The petitioner is directed to be reinstated in service within a period of eight days from today with full back wages and
consequential benefits. The respondent No.4- The Joint Director of Higher Education, Nagpur Division, Nagpur, shall release the amount of grant in
respect of the post held by the petitioner. The Management shall pay the costs of Rs.25,000/- [Rupees Twenty Five Thousand] to the petitioner.
9.Rule is made absolute in the aforesaid terms.