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CASE NO.: Appeal (civil)  744 of 2007

PETITIONER: Deepa Gourang Murdeshwar Katre

RESPONDENT: The Principal, V.A.V. College of Arts. & Ors

DATE OF JUDGMENT: 13/02/2007

BENCH: Dr. AR. Lakshmanan & Altamas Kabir

JUDGMENT:

J U D G M E N T (Arising Out of SLP (C) NO. 22356-22358 OF  2005)

Dr. AR. Lakshmanan, J.

Leave granted.

The above three Special Leave Petitions were filed  against the judgment and final order dated  13.4.2005 in  Writ Petition No. 1914 of 1999,  final order dated  5.5.2005 passed by the High Court of Judicature at  Bombay in  Review Petition No. 65 of 2005 and final  order dated 3.8.2005 passed by the High Court of  Judicature at Bombay in W.P. No. 4851 of 2005 whereby  the High Court  dismissed the writ petitions and review  petition filed by the Appellant.

Background facts         The Appellant applied for appointment in the  college, respondent No.1, on the post of English Lecturer,  pursuant to a vacancy which had arisen by leaving of an  English Lecturer after the Ist term.  The appellant was  duly interviewed by the local selection committee and  was appointed as full time lecturer in English on  22.11.1993 on temporary basis for 2nd term subject to  the approval of the University.  The appellant joined as  Lecturer and has been working since then.           The College advertised a number of vacant posts for  the academic year 1994-1995 on 29.4.1994 by way of  newspaper publication.  One of the posts was the post of  English Lecturer, but the same was reserved for  Scheduled Caste candidate.  The advertisement, however,  provided that in case the backward class candidate was  not available, then a candidate from the general category  would be considered for appointment on year to year  basis.  No backward class candidate applied for the said  post.  Three general category candidates applied out of  which the Appellant was selected and recommended for  appointment by the Six-Members’ Selection Committee  on 11.7.1994.           Vide appointment letter dated 15.7.1994, the  Appellant was appointed as full time Lecturer in the  college for one academic year as per the advertisement.         The problem of non-filling up of reserved seats in  Government and Government-aided colleges were subject  matter of various decisions by the Government.  Earlier  there was a Government Resolution of 25.1.1990 which  provided that if no backward class candidate is available

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for five years then the post should be de-reserved.  By  way of the Government Resolution dated 19.1.1995, the  Government took a decision that in all Government-aided  colleges, the reserved post of a Lecturer should be  advertised for five years.  Thereafter, in the 6th year, an  advertisement should be issued with interchangeability  clause and only if no eligible backward candidate is  available, the post should be de-reserrved and the person  who has been occupying the post on temporary basis  should be considered for regular appointment on the  post.  The Mumbai University vide order dated 17.7.1996  implemented the said decision as would be clear from  para 3 of its order dated 17.7.1996.  The said circular  was applicable to the existing posts also.         Even in the 2nd academic year i.e. 1995-1996, the  post of English Lecturer was advertised for filling up the  same from Scheduled Caste Category. No backward class  category candidate reported for interview to fill up the  said post of the English Lecturer.  The Appellant was,  therefore, once again appointed on temporary basis on  the said post for a period of one academic year.           In the third academic year i.e. 1996-1997 the post  of  English Lecturer was again advertised as being  reserved for Scheduled Caste candidate.  Applications  were called for.  However, no scheduled caste category  candidate applied for and reported for interview.   Therefore, the Appellant was once again appointed on  temporary basis on the said post for one academic year  on 19.7.1996.         For the 4th academic year again the post of Lecturer  of English was advertised by College as reserved post for  Scheduled Caste Candidate on 28.4.1997.  However,  no  scheduled caste category candidate applied for and  reported for interview.  Therefore, the appellant was once  again appointed on temporary basis on the said post for  one academic year on 24.7.1997.          For the 5th academic year i.e. 1998-1999, the post of  English Lecturer was again advertised as reserved post  for Scheduled Caste candidate.  It was clearly mentioned  in the advertisement  that this was the 5th advertisement.   However, no Scheduled caste category candidate applied  for and reported for interview.  Therefore, the appellant  was once again appointed on temporary basis on the said  post for one academic year on 15.7.1998.           Thus as per Government resolution and the  University circular, 6th advertisement with  interchangeability clause had to be issued.  The draft of  the said advertisement for the academic year 1999-2000  was forwarded by the College to the University on  3.4.1999.  The University duly vetted the said draft  advertisement and returned the same to the College on  7.4.1999 for publication.  Accordingly, the 6th  advertisement was published by the College in  Maharashtra Times on 13.4.1999 clearly mentioning that  the post was being advertised for the 6th time on  interchangeability basis as per Government Rules.   However, no Scheduled Caste candidate applied for and  reported for interview.         The report of the Selection Committee Meeting was  forwarded by the College to the University on 30.7.1999  clearly mentioning that no backward class category  candidate had reported for interview in English language.   The nil report for appointment to the post of lecturer in  English was accepted by the University vide letter dated  1.11.1999.  

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       In the meantime, the appellant had approached the  High Court of Bombay by way of Writ Petition No. 1914 of  1999 for confirmation of her services as no candidate  from backward class had appeared for even an interview  after six years.  Vide order dated 12.7.1999, a Division  Bench of the Bombay High Court granted interim relief to  the appellant i.e. the appellant was not to be terminated  from services.   In the meantime, a similar matter of one Mrs.  Madhuri Srivastava came up for hearing before the  Bombay High Court.  The Bombay High Court vide order  dated 1.2.2001 observed that since no backward class  category candidate had turned up for the interview, in  terms of the circular of the University dated 17.7.1996,  the lecturer who was working on the post for nine years  was liable to be regularized.  Just one day before the final  hearing of the writ petition, the University filed an  affidavit to the effect that the 6th advertisement had yet  not been published in terms of the University Circular  dated 17.7.1996 and hence the post cannot be de- reserved.  Said stand of the University was most  unfortunate as not only the draft advertisement had been  vetted by the University, but subsequently the report of  the Selection Committee was also accepted by the  University.   According to the learned counsel appearing for the  appellant, the affidavit was made available to the  appellant only on the date of the hearing, the appellant  could not dispute the correctness of the same and hence,  in such circumstances, the Bombay High Court passed  the impugned order directing the publication of the 6th  advertisement.  The directions issued by the High Court  read as follows: "(i)    Respondent No.1 within four weeks from today  to forward to respondent No.2 a draft  advertisement based on interchangeability.  On  the draft advertisement being received and after  verifying the same and if earlier there had been  five advertisement already issued by the  University to permit the respondent No.1 to  issue the advertisement based on  interchangeability. (ii)    If on the advertisement being issued no   candidate from reserved category is available,  respondents to permit the petitioner to continue  in the post presently held by her. (iii)   After the sixth advertisement, if no candidate  belonging to the backward class is available,  respondent No.1 to send representation to  respondent No.3 to de-reserve the post.  The  University after complying with the procedure to  forward the same to respondent No.4. (iv)    Respondent No.4 considering the clause for de- reservation and considering the judgment of this  court in W.P. No. 1914 of 1999 dated 13th April,  2005 which has taken a view that it is not  necessary that after de-reservation, that post  must be re-advertised but it is open to the  Government to relax the condition, to take the  appropriate decision and communicate the same  to respondent No.3. (v)     The Petitioner pursuant to the sixth  advertisement if no backward class candidate is  selected to be continued and the petitioner’s  services will not be terminated.  If the order be

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adverse it is not to be acted upon for a period of  twelve weeks after the communication of the  decision of respondent No.4 by respondent No.1  to the petitioner.

Rule made absolute accordingly.  There shall be no  order as to costs.

                                      Sd/- F.I. Rebello,J.                                        Sd/- S.P. Kukday,J."

It is relevant to mention here that on the very same  day, the very same Bench of the Bombay High Court  disposed of two more writ petitions by two similarly  situated lecturers of the very same college.  In both the  cases, the 6th advertisement had been issued and since  the teachers had been working for a number of years, the  High Court held that there was no need for fresh  advertisement and, therefore, directed that the  petitioners in those writ petitions, will be treated as  permanent. When the appellant came to know that an incorrect  statement has been made by the University that no 6th  advertisement has been published, the appellant filed  Review Petition No. 65 of 2005 clearly pointing out the  error apparent on the record and the mis-statement by  the University.   When the said review petition came for hearing on  5.5.2005, the University made another incorrect  statement that though the advertisement had been  issued, no interviews had been held because of the stay  order of the High Court.  The High Court found that the  6th advertisement had been issued, but however, wrongly  found that the interviews were not conducted.  As  stated  above, the interviews were held on 5.7.1999 much before  the interim order of the High Court on 12.7.1999.  The  University had not taken this stand as the report of the  interview was sent to the University and the University  accepted the said report.  The order dated 5.5.2005  passed by the High Court in Review Petition No.65 of  2005 reads as follows: "The review is based on the contention that six  advertisements for the post of Lecturer in English  having interchangeability clause was advertised on  13.4.1999 and considering that directions given by  this Court in the Judgment dated 13.4.2005 requires  to be reviewed.  We have considered the contention of the  learned counsel for the Review Applicant.  We find that  after advertisement was issued, petitioner approached  this Court by way of Writ Petition No. 1914 of 1999 on  12.7.1999 and interim relief was granted in terms of  Prayer Clause (g).  Prayer clause (g) was to the effect  that the services of the petitioner should not be  terminated and that she should be allowed to  continue.  As such the Management could not have  proceeded with interview and by letter of 30.7.1999,  considering the order of this Court issued letter of  appointment in favour of the Petitioner herein. Considering the above, as the interviews could  not be conducted in terms of the sixth advertisement,  we do not find this to be a fit case to review the order  dated 13.4.2005.  With the above directions,  application stands disposed of.  No order as to costs.

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                                       Sd/- F.I.Rebello,J.                                          Sd/- S.P. Kukday,J."

When the appellant came to know even at the time  of hearing of the review petition an incorrect statement  had been made, the appellant filed fresh Writ Petition  No.4851 of 2005.  The College filed the counter affidavit  bringing the correct facts to the notice of the High Court.   However, the High Court refused to entertain the fresh  writ petition on 3.8.2005 and passed the following order: "CORAM:  A.P. Shah & D.Y. Chandrachud,JJ.

3rd August, 2005

P.C

       The present petition is in the nature of a  review of the order passed by the Division Bench in  Writ Petition No. 1914 of 1999.  The Petitioner, in fact,  sought review of the said order by filing a review  application which came to be dismissed by the  Division Bench by order dated 5th May, 2005.  It is not  permissible for the petitioner to seek the same relief  again by filing a fresh petition.  Petition is, therefore,  dismissed.

                                       Sd/- Judge                                         Sd/- Judge"

The appellant filed the present appeal by way of  three special leave petitions challenging all the three  orders passed by the High Court including the first  order dated 13.4.2005 passed in W.P. No. 1914 of 1999.   This Court vide order dated 24.10.2005  issued notice  to the respondent and granted status quo. During the pendency of the special leave petitions,  the University vide its letter dated 6.9.2005  acknowledged the facts that it would not be proper to  issue a fresh advertisement and, therefore, requested  the College to send a proposal for de-reservation of the  post.   The letter dated 6.9.2005 reads as follows: "                       UNIVERSITY OF MUMBAI                                         No. (29)/6115/2005                                 Dated: 6th September,2005

To

The Principal Annasaheb Vartak College of Arts, Commerce and Science, Vasai Road, District Thane(W)-401 202

       Sub :  Approval for advertisement

Madam,

This is in reference to your letter No.  AVC/Advt/292/2005-06 dated 18th May, 2005.

       It is clear from the advertisement annexed to the  aforesaid letter for the post of Lecturer (English) was  advertised with interchangeability clause on 13th April,

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1999 in Maharashtra Times newspaper and  accordingly interview was also held on 5th July, 1999.         In view of the above, it would not be proper for  issuance of one more advertisement for the post of  Lecturer (English).  You are, therefore, requested to  submit a proposal for de-reservation of the said post in  the format enclosed herewith to the University.  After  receipt of the proposal, the same would be scrutinized  and sent to the State Government for further approval.

                                                   Yours truly,

                                                       Sd/-                                                   illegible                                                  Vice-Chancellor                                      (Special Branch)"

Thus it is seen that the University has now  acknowledged that there is an error in the order of the  High Court and that the direction of the High Court to  issue 6th advertisement was based on wrong facts.  The  College vide letters dated 1.10.2005, 22.6.2006 and  24.8.2006 requested for de-reservation of the post which  read as follows: VIDYAVARDHINI’S Annasaheb Vartak College of Arts, Kedarnath Malhotra College of Commerce & E.S. Andrades College of Science Vasai Road West-401 202, Distt. Thane                          No.DIR/7226/2005-2006        Dated 1.10.2005

To

The Addl.Secretary Special Cell, University of Mumbai Mumbai-400 032

       Sub:  De-reservation of Post : Mrs. D.G.                   Murdeshwar Katre Lecturer in English Sir, That our college had forwarded a proposal for de- reservation of the post held by Mrs. D.G. Murdeshwar-Katre,  Lecturer in English vide letter dated 6.5.2005 for necessary  action at your end.  Pursuant to the telephonic conversation  held on 30.9.2005 with your office, we were requested to  forward the necessary details in Form-A which is enclosed  herewith. It is requested that appropriate steps may be taken for  de-reservation of the post of Mrs. D.G. Murdeshwar Katre.

Thanking you,

                                               Yours truly,                                                 Sd/-illegible                                                 Principal

               Encl:- Form A"

"AVC/DER/202/2006-07                22/6/06

To

The Registrar,

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University of Mumbai, Mumbai-400 032

Sub:  De-reservation of post-Mrs. D.G. Murdeshwar-         Katre, Lecturer in English

Sir,

        I am forwarding herewith application along with  enclosures of Mrs. Deepa G. Murdeshwar Katre,  Lecturer in English for De-reservation of post. I request you to look into the matter and do the  needful.

Thanking you,

                                               Yours faithfully,

                                               (Dr. S.S. Kelkar)                                                 Principal Encl. As above

  "VIDYAVARDHINI’S Annasaheb Vartak College of Arts, Kedarnath Malhotra College of Commerce & E.S. Andrades College of Science (Affiliated to the University of Mumbai)

AND Junior Colleges   Vasai Road West-401 202, Distt. Thane

Ref.No.AVC/DER/1100/2006-07      Date: 24/8/2006

To

The Dy. Registrar Spl. Cell, University of Mumbai, Mumbai-400 001. Sub: De-reservation of post: Mrs. D.G. Katre-          Lecturer in English

Sir,                                  I have to inform you that our Proposal for  De-reservation of post of Mrs. D.G. Murdeshwar  \026 Katre, Lecturer in English has been forwarded  to your office vide out letter No. AVC/DE- R/257/2005-06 dated 6/5/2005.  The  information in Proforma ’A’ has been forwarded  vide our letter No. AVC/DER/1226/2005-06 dt.  1/10.2005.  Zerox copies are enclosed herewith. I request you to look into the matter and  do the needful.

       Thanking you,

                                          Yours faithfully,

                                           Sd/-                                            (Dr. S.S. Kelkar)                                             Principal Encl. As above"

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However, because of the directions of the High  Court in the impugned order regarding issuing of 6th  advertisement, the University has not forwarded the  proposal any further and is maintaining status quo. We heard Mr. Gaurav Agrawal, learned counsel  appearing for the appellant and Mr. Ravindra K. Adsure,  learned counsel appearing for the University and Mr.  Prashant Kumar, learned counsel appearing for the  College. Mr. Gaurav Agrawal, learned counsel appearing for  the appellant submitted that the High Court failed to  consider that its first order dated 13.4.2005 had been  passed by relying upon a fraudulent mis-representation  of the respondent-University contained in the affidavit  dated 12.4.2005 that the 6th advertisement had not been  issued, when the indisputable fact was that the said  advertisement had been issued as per the approval of the  University itself on 13.4.1999.  Therefore, learned  counsel submitted that on this ground alone, the order  dated 13.4.2005 ought to have been recalled and the  factum of issuing the advertisement was in terms  admitted at the time of hearing of the review petition.  It  was further submitted that the High Court failed to  notice that pursuant to the advertisement dated  13.4.1999 interviews for the reserved post of English  Lecturer in the College (respondent No.4) were held on  5.7.1999 and no candidate from the backward class had  turned up for the interview.  Likewise, the High Court  has not noticed that the College vide letter dated  30.7.1999 had given a non-availability report in relation  to interviews for the post of English Lecturer and this  report was accepted by the University on 1.11.1999.   Therefore, the submission that the interview could not be  proceeded with in view of the interim order of the High  Court was patently  not correct.  It was also submitted by  learned counsel appearing for the appellant that the High  Court at the time of hearing the review petition was also  mislead by the respondent-University as an impression  was given that no interviews had been held pursuant to  the advertisement dated 13.4.1999 which was clearly  belied by the documents of the University itself.  It is  clear that even the Bench hearing the review petition had  been mislead by the respondent-University by making a  false statement, the review order dated 5.5.2005 was  vitiated by fraud and was liable to be recalled by the High  Court.  It was also contended that the High Court erred  in dismissing the writ petition in a cursory manner by  the impugned order dated 3.8.2005 without appreciating  the contentions raised by the appellant which were fully  supported by indisputable documents on record, which  documents emanated from the College and the  University.  The writ petition clearly indicates how the  High Court had been mislead by the false statements  made by the University and the High Court ought to have  considered the submissions made by the appellant. The High Court, in our opinion, has erred in law  rejecting the writ petition without considering the merits  of the matter though the merits of the matter were  specifically argued by the appellant and the   mis- representations made by the University were brought to  the notice of the High Court.   It is not in dispute that the appellant has been in  service of the respondent-College for the last 12 years.   No candidate from the reserved category was available for

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six years.  The appellant continued on the temporary  basis year to year and hence it is a fit case where the  appellant should be regularized on this post after de- reserving the same and if the appellant is now thrown  out, the appellant would be age barred for any other  service. We are of the opinion that the case on hand is a fit  case for interference by this Court in exercise of the  jurisdiction under Art. 136 of the Constitution of India in  view of the misrepresentations made by the respondent- University and considering the long service rendered by  the appellant to the respondent-College at a time when  no other candidate was willing to take the assignment.   This apart, the appellant would be deprived of her  livelihood if she is thrown out of her employment and  irreparable injury would be caused to the appellant if the  prayer made in the appeal is not granted.  On the other  hand, the respondents would not  suffer any prejudice by  granting the prayer made in the appeal as the appellant  is fully qualified to teach English and has been doing so  for the last 12 years. It is well settled by catena of decisions of this Court  that if a case of  fraud or mis-representation of such  a  dimension is discovered that the very basis of the order  passed by a Court of law is affected, the Court can recall  its order.  The power to recall an order founded upon  fraud and mis-representation is an inherent power of the  Court. The present case is one such instance where the  High Court has mislead by incorrect representations  made by the University at the time of hearing of the writ  petition and the review petition.  The question was  whether the post occupied by the appellant was entitled  to be de-reserved as for six years no backward class  candidate was available. We have already noticed that the statement made  before the Court was not correct.  The records also reveal  that the interviews for the post of English Lecturer  pursuant to the 6th advertisement were made on  5.7.1999 and no candidate belonging to the backward  class turned up for interview.  The University was fully  aware of this as the University had on 1.11.1999  accepted the non-availability report.  However, it mislead  the  Review Bench  of the High Court by sating that no  interviews were held.    The review order dated 5.5.2005  was totally vitiated due to fraud which compel the  appellant to file a fresh writ petition challenging the order  of the University of Bombay calling for the 6th  advertisement.  However, the High Court by the  impugned order dated 7.8.2005 dismissed the writ  petition by relying on the dismissal of the earlier writ  petition and review petition without appreciating that the  previous orders had been founded upon fraudulent  mis- representations made by the University and the said  orders were liable to be recalled.   When fraud was clear on the fact of the record, the  High Court erred in law in dismissing the writ petition of  the appellant. Learned counsel appearing for the respondents was  not able to controvert the factual statements made by the  learned counsel appearing for the appellant at the time of  hearing.  The arguments made by the learned counsel  appearing for the appellant are fully supported by the  records filed before the High Court and also the  annexures and material placed before us.  We, therefore,

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have no hesitation in accepting the arguments advanced  by the learned counsel appearing for the appellant and  allowing the appeal. In view of the letter of the University dated 6.9.2005  in which the University had acknowledged that the 6th  advertisement had indeed been issued and it would not  be proper to issue a 6th advertisement, the basis of the  impugned order is incorrect and, therefore, the same is  liable to be set aside on this ground.  In such  circumstances, the case of the appellant would be similar  to that of Mrs. Bina Patil and Mrs. Madhuri Srivstava  and since the appellant has worked continuously for the  last 13 years, it is a fit case for this Court to pass a  similar order as in the matter of  aforesaid two persons. We, therefore, allow the appeal and set aside the  orders passed by the High Court with a direction to the  respondents to regularize the services of the appellant on  the post in question after de-reserving the same.   However, there shall be no order as to costs.