IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2590 of 1990 For Approval and Signature:
HONOURABLE MR.JUSTICE C.L. SONI Sd/-
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========================================= MALVIKA K JOSHI Versus GOVERNMENT OF GUJARAT & 2 ========================================= Appearance :
MR SP MAJMUDAR for the Petitioner(s) : 1,MRAJAYDACHARYA for Petitioner(s) : 1, MR PRANAV DAVE, ASSTT GOVERNMENT PLEADER for Respondent(s) : 1 - 2.
MR VH DESAI for Respondent(s) : 3, ========================================= CORAM : HONOURABLE MR.JUSTICE C.L. SONI Date : 11/01/2012 CAV JUDGMENT
1. The petitioner, by way of this petition under Article 226 of the Constitution of India, has challenged order dated 6.3.1990 passed by respondent No.2, as also order of termination dated 14.3.1990 passed by respondent No.3 and has prayed for direction to the respondents to reinstate the petitioner in service with continuity of service and full back wages. By the impugned order dated 6.3.1990 passed by respondent No.2, the appointment of the petitioner to the post of Lecturer in V.D. Ghelani Arts and Commerce College, Savarkundla is not sanctioned and therefore, respondent No.3 passed consequential order of termination of service of the petitioner, vide order dated 14.3.1990.
2. It is the case of the petitioner that the petitioner was appointed for a period of one year on temporary basis, vide order dated 19.8.1987, in Smt. Vanitaben Dhirajlal Ghelani Arts and Commerce College, Savarkundla (V.D. Ghelani Arts and Commerce College, Savarkundla). The said appointment of the petitioner was pursuant to the advertisement dated 17.7.1987.
2.1. It is further case of the petitioner that Smt. Nathibai Damodar Thackersey Women's University, Mumbai had approved the said temporary appointment of the petitioner as Full Time Lecturer in Hindi, as a special case, vide order dated 18/21.7.1988. The petitioner has further averred that by order dated 16.8.1988, the appointment of the petitioner was extended for the period of one year on the basis of the University's letter dated 21.7.1988.
2.2. It is further case of the petitioner that respondent No.3, then, issued an advertisement for the post of Full Time Lecturer in Hindi, on 21.1.1989 with other posts. The post of Lecturer in Hindi was to be filled by female candidate and minimum qualification required was M.A., M.Phil. with 55% marks. The said advertisement is found at Annexure-'F' to the petition. The petitioner applied for the said post vide application dated 22.1.1989 and remained successful in the interview and by order dated 18.4.1989, the petitioner was appointed on the post of Lecturer in Hindi.
2.3. The petitioner has further stated that she was discharging her duty satisfactorily and she also attended Orientation Course under Saurashtra University Academy Staff College at Rajkot, which was sponsored by the UGC and she had also participated in other discourses and discussions. The petitioner has also stated that the petitioner has passed D.P.Ed. examination and also remained as Sports In-charge for two years. She had also worked as Supervisor in Integrated Children Development Scheme at Halol for about two and half years before joining respondent No.3 College. It is her case that since she was fulfilling necessary qualification as per the Government Resolution dated 23.11.1976, the impugned orders are bad in law.
3. It appears that the petitioner has also carried out amendment as per the order passed by this Court so as to state that by virtue of Resolution dated 6.6.1989, the appointment of the petitioner, since made before 14.9.1988, was required to be considered as regular appointment. By the said amendment, the petitioner has further stated that the impugned order passed by respondent No.2 is a non- speaking order and is, therefore, required to be quashed.
4. Initially, notice was issued by this Court vide order dated 23.3.1990. The petition was opposed by respondent Nos. 3 and 2 by filing affidavits-in-reply dated 16.5.1990 and 31.7.1990 respectively. Thereafter, it appears that the petition was admitted by issuing Rule and Interim Relief was confirmed vide order dated 16.8.1991. The petitioner has continued to serve all throughout under the interim protection on the post of Lecturer.
5. The petitioner has filed affidavit-in-rejoinder dated 28.4.2010, placing on record some documents and also further affidavit dated 5.10.2011 again placing some more documents on record.
6. I have heard the arguments of both the sides.
7. Learned advocate Mr. S.P. Majmudar for the petitioner has made the following submissions:-
(1) The petitioner was appointed pursuant to the selection process undertaken by the Selection Committee on the basis of advertisement dated 17.7.1987 and the University had granted approval to the said appointment.
(2) The petitioner is possessing the requisite qualification of M.A. and M.Phil. for the post of Lecturer, and therefore, her appointment to the post of Lecturer was legal and regular.
(3) The petitioner has also successfully come out in the selection process undertaken pursuant to second advertisement dated 21.1.1989 and she was appointed on the post of Lecturer in regular pay scale, with effect from 20.4.1989.
(4) When the petitioner was appointed, she was fulfilling the qualification for the post of Lecturer as per the Government Resolution dated 23.11.1976 and there was no illegality in her appointment on the post of Lecturer.
(5) The University has already approved the appointment of the petitioner on the post of Lecturer and therefore, the appointment of the petitioner on the post of Lecturer could not be termed as illegal appointment and therefore, respondent No.2- Joint Director of Higher Education was not justified in not approving the appointment of the petitioner on the post of Lecturer. The appointment of the petitioner was otherwise required to be considered as regular appointment in view of the Resolution of the State Government dated 11.10.1998, which provides that the appointment of Lecturer made before 14.9.1988 as per the Statute/ Regulation of the University shall be required to be regularized.
(6) The petitioner has, by now, put in more than 21 years of service and gained enough experience and being well qualified, the petitioner is required to be permitted to continue to serve as a Lecture by quashing the impugned orders.
(7) The petitioner is otherwise also complying the qualifications prescribed by the State of Gujarat as also the UGC and in no circumstances, it can be said that the petitioner was not fulfilling the requisite qualification and her appointment was illegal appointment and therefore, respondent No.2 is not justified in not approving the appointment of the petitioner.
(8) The petitioner was given no hearing before terminating her services.
8. As against the above, learned Assistant Government Pleader Mr. Pranav Dave, appearing for respondent Nos.1 and 2, has made following submissions:-
(1) The appointment of the petitioner on the post of Lecturer was from the beginning, an illegal appointment, inasmuch as the petitioner was not qualified to be appointed on the post of Lecturer. The advertisement clearly required M.A. Degree with 55% marks to become eligible for appointment on the post of Lecturer. The petitioner passed M.A. Degree only with 49.5%, therefore, the petitioner was not qualified to be appointed on the post of Lecturer.
(2) The appointment of the petitioner pursuant to the advertisement dated 13.7.1987 was purely temporary for one year with effect from 20.8.1987 and subject to the approval by the University as also the Education Department of the State of Gujarat. Though the University granted approval as a special case, for the academic year 1988-1989, there was no approval by the Government. The extension in appointment for further period of one year was also as per the earlier order of the University which provided for taking of approval of the State of Gujarat.
(3) When another advertisement was issued on 21.1.1989 for filling the post of Lecturer, the qualification prescribed was M.A.,M.Phil. with 55% marks. At this stage also, though the petitioner was not fulfilling the qualification, she was appointed on the post of Lecturer in Hindi subject and second appointment was on the same terms of earlier order of the University dated 21.7.1988.
(4) Since the petitioner was not fulfilling the qualification as per the advertisement as also, as per the Government Resolutions dated 23.11.1976 14.9.1988, the appointment of the petitioner was not sanctioned by the State Government vide order dated 6.3.1990.
(5) Since the appointment of the petitioner was illegal, from its inception, orders dated 6.3.1990 and 14.3.1990 passed by respondent Nos.2 and 3 respectively cannot be said to be illegal orders.
(6) The petitioner had not even completed three years of service on the basis of two different orders of her appointment. The petitioner has continued to serve as a Lecturer on the basis of the interim order passed by this Court. Therefore, the service of the petitioner on the basis of the orders passed by the College was only for a period of two years and few months. The petitioner, therefore, cannot urge that she has put in many years of service and her service should be regularised looking to the continuous service for long period.
(7) The resolutions relied upon by the petitioner dated 6.6.1989 and 11.10.1988, would not be of any help to the petitioner because the appointment of the petitioner was not in consonance with requisite qualification and because there was no approval of the State Government to the illegal appointment made by the College.
(8) As per the decision of the Hon'ble Supreme Court in the case of Shesh Mani Shukla Vs. D.I.O.S. Deoria & Ors. reported in AIR 2010 SC 1433, any appointment contrary to the Rules, specially as regards the qualification, cannot be considered to be regular appointment.
9. I have perused the entire record of the petition and also considered the arguments advanced by both the sides.
10. It clearly appears that when the first appointment was made pursuant to the advertisement dated 13.7.1987, the petitioner did not fulfill the qualification of M.A. with 55% marks required for the post of Lecturer. The advertisement clearly stipulates that the candidate having M.A. Degree with 55% marks would be eligible for appointment to the post of Lecturer. The petitioner did not possess the above-said qualification. In fact, the petitioner passed M.A. with 49.5% marks. Therefore, the first appointment order dated 19.8.1987 clearly records that the appointment of the petitioner was purely for temporary period of one year and subject to the approval by the Education Department of the State of Gujarat, over and above the approval by the University. It appears that the University, vide order dated 18/21.7.1988, granted approval as a special case to the appointment of the petitioner for academic year 1988-1989 and on this basis, respondent No.3 passed order dated 16.8.1988, to continue the petitioner for one more year. There was neither any approval to the first order nor to the second order extending the appointment by the State of Gujarat.
11. It appears that respondent No.3, then, issued advertisement dated 21.1.1989 to fill in the post of Lecturer through female candidate with other posts and there also, the qualification required was M.A.,M.Phil. with 55% marks. Though the petitioner was not possessing the said qualification, she applied for the said post and participated in the selection for the said post and was selected in the interview and appointed by respondent No.3, vide order dated 18.4.1989. Thus, the appointment of the petitioner again came to be made though she was not complying with requisite qualification. It appears that since the appointment of the petitioner was not according to the Rules and the Government Resolutions, respondent No.2, vide order dated 6.3.1990, did not approve the appointment of the petitioner, on the ground that the petitioner was not fulfilling the requisite qualification as per the Government Resolution dated 14.9.1988.
12. The qualification required vide Government Resolutions dated 23.11.1976 and 14.9.1988 for appointment on the post of Lecturer was Master Degree in the relevant subject with at least 55% marks or its equivalent grade and good academic record. Learned advocate Mr. Majmudar wanted the Court to read the consistent good academic record as the main thing from the Government Resolution dated 23.11.1976, to point out that the petitioner was complying with the qualification prescribed therein for College Lecturer.
However, learned advocate Mr. Majmudar was requested to read the whole clause (i) of Clause (b) of Appendix-'A' of the said Government Resolution at page 63. He could not dispute that the requirement of consistent good academic record was over and above the requirement of qualification of Master Degree in the relevant subject with first or high second class (B+) and the qualification mentioned in Clause (iii). Therefore, learned advocate Mr. Majmudar is not right in arguing that the petitioner was fulfilling the qualification required for the post of Lecture when the appointment of the petitioner was made.
13. In fact, learned advocate Mr. Majmudar could not dispute that the petitioner did not match with the qualification of M.A. with 55% marks as required by the advertisement for filling the post of Lecturer. Learned advocate Mr. Majmudar, however, made strenuous efforts to point out that the petitioner was fulfilling the qualification as required by Resolution dated 14.9.1988 and to substantiate his argument, he read Clause (7) in Appendix-'A' of the Resolution dated 14.9.1988, at page 98 of the petition. Learned advocate for the petitioner read part of Clause (7), which is quoted as under:-
“Generally, the minimum qualification for appointment to the post of Lecturer in the scale of pay of Rs.2200- 4000 shall be Master's Degree in the relevant subject with at least 55% marks or its equivalent grade, and good academic record.”
By reading the above said part of Clause (7), learned advocate Mr. Majmudar led emphasis on the following words:-
“Master Degree in relevant subject with at least 55% marks”
He argued that the petitioner had M.Phil. Degree, which is a Master Degree with 55% marks and therefore, she was eligible and qualified for the post of Lecturer.
14. Argument of learned advocate Mr. Majmudar cannot be accepted, firstly because the petitioner did not hold Master Degree with 55% marks in relevant subject. Degree of M.Phil with 55% marks, therefore, cannot be said to be complying with the requirement of Master Degree in relevant subject with at least 55% marks. What was required by the advertisements as also by Government Resolutions dated 23.11.1976 and 14.9.1988, was Master Degree in relevant subject with at least 55% marks. Undisputably, the petitioner did not have 55% marks in Master Degree in the relevant subject, for which the post of Lecturer was to be filled in. The advertisement was for filling the post of Lecturer in Hindi subject. Therefore, the relevant subject was Hindi. The petitioner did not have 55% marks in Master Degree in Hindi subject. Therefore, by no stretch of imagination, it can be said that the petitioner had requisite qualification of Master Degree in relevant subject with at least 55% marks. Therefore, I am of the clear opinion that the petitioner did not have requisite qualification for the post Lecturer when, she was appointed pursuant to the above-said two advertisements. I, therefore, find that respondent No.2 has not committed any error in not approving the appointment of the petitioner. Therefore, the orders impugned in the petition cannot be said to be in any manner illegal orders.
15. The Hon'ble Supreme Court in the case of Dr. Bhanu Prasad Panda Vs. Chancellor, Sambalpur University and others reported in AIR 2001 SC 3324, has ruled that there is no justification to do away or dispensing the essential academic qualification in the relevant subject, for which the post has been advertised. In the said case, the advertisement was for appointment to the post of Lecturer in the subject of Political Science. The claim of the petitioner in that case was that the petitioner was holding qualification in the subject of Public Administration and it was the case of the petitioner that if the candidate was having qualification either in the subject of Political Science or Public Administration, he would comply with the requirement. The Hon'ble Supreme Court has held that that the essential requirement of academic qualification of a particular standard and grade, i.e. 55% in the relevant subject, for which the post was advertised, cannot be rendered redundant or violated by ignoring the relevant subject and carried away by the name of the department only, which, in the substance, encompass two different disciplines. There is no justification to do away or dispensing with the essential academic qualification in the relevant subject for which the post has been advertised. Thus, even as per the above-said judgment of the Hon'ble Supreme Court, what is required to be considered, is whether the petitioner can be said to have had qualification required by the advertisements as also by the Government Resolutions, i.e. Master Degree in the relevant subject with at least 55% marks. Undisputably, the petitioner did not have Master Degree in the relevant subject with at least 55% marks. Therefore, the petitioner cannot be said to be qualified for appointment to the post of Lecturer in Hindi subject pursuant to the advertisements and the respondents are justified in passing the impugned orders.
15.1. In one more judgment in the case of Pramod Kumar Vs.
U.P. Secretary Education Services Commission & Ors. reported in AIR 2008 SC 1817, the Hon'ble Supreme Court has laid down that an appointment which is contrary to the statute/ statutory rules, would be void in law and illegality cannot be regularized. If candidate does not possess requisite qualification to hold the post, he/she could not have any legal right to continue. Since the appointment of the petitioner was de hors the education qualification, the termination of services of such candidate would not be illegal. As stated above, in the present case also, the petitioner did not comply with the essential education qualification for recruitment to the post of Lecturer and therefore, the impugned orders passed against the petitioner cannot be said to be illegal. As held by the Hon'ble Supreme Court in the decision (supra), since the petitioner did not possess the requisite qualification to hold the post of of Lecturer, she could not have any legal right to continue.
16. As regards the contention of learned advocate Mr. Majmudar that the petitioner having put in continuous service of 21 years, the services of the petitioner are required to be regularised. This argument of learned advocate Mr.Majmudar cannot be accepted in view of the decision of the Hon'ble Supreme Court (supra) as also one more decision of the Hon'ble Supeme Court in the case of Shesh Mani Shukla Vs. D.I.O.S. Deoria & Ors. reported in AIR 2010 SC 1433, In the case of Shesh Mani (supra), the Hon'ble Supreme Court has held that the appointment of the appellant in that case being in contravention of the Statutory provisions was void ab initio. The Hon'ble Supreme Court has further laid down that the fact that the appellant had worked for long time, will not entitle him to writ of mandamus. From the judgment (supra), para 14 is quoted below:-
“14. Both the learned single Judge as also the Division Bench have found that the institution has not complied with the provisions of the 1981 Act as amended as also para 5 of the 1981 order. If the appointment of the appellant was not valid, the question of granting any approval thereto did not arise. Action, on the part of the Committee of the Management to hold selection, being not consistent with Para 5 of the Order has rightly been held to be wholly unsustainable. It is true that the appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and, thus, void ab initio. If his appointment has not been granted approval by the statutory authority, no exception can be taken only because the appellant had worked for a long time. The same by itself, in our opinion, cannot form the basis for obtaining a writ of or in the nature mandamus; as it is well known that for the said purpose, the writ petitioner must establish a legal right in himself and a corresponding legal duty in the State. {See Food Corporation of India & Ors. v. Ashis Kumar Ganguly & Ors. [2009(8) SCALE 218]}: (2009 AIR SCW 4498). Sympathy or sentiments alone, it is well settled, cannot form the basis for issuing a writ of or in the nature of mandamus. {See State of M.P. & Ors. [(2008) 1 SCC 456]}: (2007 AIR SCW 6967).”
In the facts of the present case also, the appointment of the petitioner was in contravention of not only the advertisement but also against the requirement of qualification as per the above-stated two Government Resolutions. Respondent No.2 was justified in not granting approval to such illegal appointment and no exception can be made to such illegal appointment, simply because the petitioner has worked for long period. In fact, it is not the case of the petitioner that the respondents have allowed the petitioner to work for long time. The petitioner had initially worked only for two years and few months and then continued to work as Lecturer under the interim order passed by this Court. Therefore, in these circumstances also, it cannot be said that the petitioner has worked for long time. In any case, as per the settled principle of law, since the petitioner did not fulfill the requisite qualification, for appointment to the post of Lecturer in Hindi subject, since the appointment of the petitioner was not in compliance with the Government Resolutions and since there is no approval granted to the petitioner by the education department of the State of Gujarat, simply because the petitioner has put in more years of service, is no ground to quash the impugned orders and to regularize the service of the petitioner. Therefore, the claim of the petitioner is bereft of any merits.
17. As regards the argument of granting no hearing to the petitioner before terminating the service of the petitioner is concerned, it is required to be noted that the order of termination passed by the College is the consequential order of not granting approval to the appointment of the petitioner on the ground that the petitioner did not possess the requisite qualification for the post of Lecturer in Hindi subject.
18. In view of the judgments of the Hon'ble Supreme Court (supra) and since the appointment of the petitioner was from very beginning is in contravention of requisite qualification, the same was void ab initio and invalid appointment and since the respondent No.2 was justified in not granting approval to such appointment of the petitioner, there was no question of hearing the petitioner. Under the circumstances, the petitioner is not entitled to any relief in the petition.
19. The petition is therefore, being devoid of any merits, is required to be dismissed. It is accordingly dismissed. Rule is discharged. Interim relief, if any, stands vacated forthwith. No costs.
omkar Sd/-
(C.L. SONI, J.) After pronouncement of the judgment, learned Advocate Mr. Majmudar requests to continue the interim relief for a period of four weeks. Learned AGP has objected the request on the ground that the petitioner is not entitled to hold the post and, therefore, interim relief may not be extended further. Petition is of the year 1990 and the interim protection has been continued. In view of this fact, interim relief which has operated till this date shall continue to operate for a further period of two weeks.
omkar Sd/-
(C.L. SONI, J.)