DEORA BARKU KEDA Vs. MAHATMA GANDHI VIDYA MANDIR

JUDGEMENT

(1.) THIS judgment will dispose of two writ petitions viz. Civil Writ Petition Nos. 249 and 250 of 1989 as both of them involve decision on related questions of facts as well as law. The controversy giving rise to the filing of the present writ petitions under Article 226/227 of the Constitution of India may be noticed.

(2.) IN Writ Petition No. 249 of 1989, the petitioner claims to have been appointed as Lecturer in Chemistry in M. S. G. Arts, Science and Commerce College. The said college is stated to be run by the society styled as Mahatma Gandhi Vidya Mandir. The petitioner claims that he was fully eligible to be appointed on the post of Lecturer. He came to be appointed as Lecturer on 16th September 1995. He claims to have been appointed by a duly constituted Selection Committee. The translation of this order of appointment may be reproduced here as it would be useful for the decision of the controversy involved. The pleaded case of the petitioner may be noticed from the judgment given by the College tribunal as these facts have been reiterated in the writ petition.

(3.) THE petitioner in Civil Writ Petition No. 249 of 1989 had been discontinued from service by an oral order dated 20th June, 1987. The appeal was preferred on 19th October, 1987. The petitioner has pleaded that he was selected after a regular interview as Lecturer in Chemistry in September, 1985. Regular orders of appointment could not be issued due to the litigation pending in the High Court between two rival groups who were trying to secure the management of the society. Writ Petition No. 2805 of 1984 was pending in the High Court. As permission of the High Court was necessary for appointing the petitioner, a formal appointment letter was not given to the petitioner. However, letter dated 16th September, 1985 was issued as reproduced above. On the basis of the contents of this letter it is further stated that the institution had decided to give the appointment to the petitioner. Due to pendency of Court cases of the office-bearers he was not given the appointment immediately as it could not be done without permission of the Court. Thus the letter states that it will take sometime to issue the said appointment with the permission of the Court. The petitioner was requested to work in the College to avoid hardship to the students. It was further stated in the letter that appointment letters with the permission of the Court will b e issued and the payment of the necessary salary for the work done by the petitioner would be made, with the permission of the Court. Relying on these representation, the petitioner continued to work. It is stated that he worked without salary until 14th January, 1986. Not only this it is further stated that he was not permitted to sign the muster roll of the College. Writ Petition bearing No. 2805 of 1984 was at that time pending in the High Court. The appeal of the petitioner was resisted by the management. According to the management, the appointment was purely temporary. It was made in a leave vacancy of one Ms. M. C. Jadhav. The said Ms. Jadhav joined her duties in September 1986 and, therefore, the appointment of the petitioner came to an end automatically. It was further pleaded that the petitioner could not be posted on probation for two years because of the specific orders passed by the High Court from time to time in Writ Petition No. 2805 of 1984. It is pleaded that Civil Application No. 4283 of 1985 was filed in the said writ petition in which various orders came to be passed. The High Court had put some restrictions on the then Management for making any appointments without the sanction of the High Court. Thus the order of appointment of the petitioner on probation for a period of two years was invalid and inoperative. In accordance with the permission granted by the High Court, the petitioners at the most has been appointed for the academic year 1985-86. The respondents had also urged that the appeal filed by the petitioner should be dismissed as barred by limitation. After noticing the pleadings of the petitioner, the tribunal framed certain issues. The first point was whether or not the appeal of the petitioner was to be dismissed on account of delay and laches. It was held that the delay is condoned and, therefore, the appeal was entertained. The second question posed was whether the order of appointment dated 17th December, 1985 (wrongly typed for 27th December, 1985) appointing the petitioner on probation was a valid order in view of the various directions of the High Court in Writ Petition No. 2805 of 1984 and C. A. No. 4282 of 1985. This question was answered against the petitioner and it was held that the then Principal or Chairman had issued the orders in violation of the direction of the High Court. The tribunal then framed a point as to whether the appointment of the petitioner was against leave vacancy or in a permanent vacancy. The Tribunal held that the appointment of the petitioner was in leave vacancy.