M.S. Jamdar, J.@mdashThe petitioner, who was Principal of Dr. Ambedkar College of Commerce and Economics, has filed this petition in that capacity challenging the order dated 19th August 198,2 passed by the Presiding Officer College Tribunal Bombay in; Appeal No. 7/80 of 1982 preferred by respondent No. 1 u/s 42(b) of the "Bombay University Act, 1974" (hereafter called Act of 1974).
2. Dr. Ambedkar College of Commerce and Economics (hereafter called ''Dr. Ambedkar College'') is owned and run by People''s Education Society (hereafter called ''the Society'') which was founded by Late Dr. B. R. Ambedkar and other persons belonging to Scheduled Caste on or about 8th July 1945 with the object of providing facilities for education in all branches of knowledge to poor Scheduled Caste people. Dr. Ambedkar College was also founded at about the same time. Presently the. management of the Society vests in persons belonging to religious minority of Neo-Buddhas, i.e. the persons belonging to Scheduled Caste who embraced Buddhism in October 1956.
3. Respondent No. 1 was appointed as part-time lecturer in the Dr. Ambedkar College on 12th July 1976 by virtue of appointment order dated 17th July 1976, copy of which is produced at Exhibit A, annexed to the petition. In 1979-80 the number of part-time lecturers in Commerce College was five. Respondent No. 1 was second in the seniority while Prof. Sawant was fifth.
4. During academic year 1981-82 on account of discontinuance by the Bombay University of A.T.K.T, concession, the number of students in Dr. Ambedkar College was considerably reduced and hence the management of the College wanted to effect retrenchment of the staff. The first respondent was offered alternative employment on transfer to Dr. Ambedkar College of Law where the salary of part-time teachers was fixed at Rs. 400/- . The first respondent, therefore, did not give her consent for transfer to Dr. Ambedkar Law College. The management also did not pass any specific order transferring the first respondent to the Law College, but instead by letter dated 21st August 1981 terminated the services of the first respondent with effect from 24th August 1981 on the ground that consequent upon the decision of the Bombay University of not granting full A.T.K.T, to F.Y. B.Com. students who appeared in the examination held in April 1981, the students'' strength in S.Y. B.Com. class was adversely affected and hence it was not possible for the College to accommodate the first respondent.
5. Being aggrieved by this order of termination, the first respondent preferred an appeal to the College Tribunal (hereafter called ''the Tribunal'') for Bombay and S.N.D.T. Women''s Universities u/s 42(b) of the Act of 1974, contending inter alia, that she was automatically confirmed in the post of part-time lecturer in Commercial Law with effect from 12th July 1978 and hence her services could not be terminated in a summary manner in which it was done by the management of the College; that the order terminating her services violates the principles of natural justice and principle of last come first go; and that the termination was effected on communal grounds in order to advance the interests of Prof. Sawant, who was admittedly junior in service to the first respondent.
6. The petitioner resisted the appeal contending, inter alia, that the society belonged to Neo-Buddhas whose rights and powers to manage their institutions according to the Rules and Regulations framed by the Society are protected by Article 30 of the Constitution of India and hence the action of the management of the college in terminating first respondent''s service cannot be challenged; that the first respondent was appointed as part-time lecturer on temporary basis and that she all along continued to be temporary employee whose services could be terminated as per the terms and conditions mentioned in her letter of appointment; that as per Rules and Regulations governing the management of the Institutions founded by the Society, the management was competent to transfer the first respondent to the Law College and was justified in terminating her services on the ground that she refused to accept her transfer; that Prof. Sawant was senior in service to the first respondent and was preferred to the first respondent and retained in service not only on that ground but also on the ground that he belonged to Scheduled Caste and was a life worker of the Society.
7. The learned Presiding Officer overruled all the contentions raised by the petitioner and held that the order of termination of first respondent''s services was unlawful, unjust and wrong being in violation of the principles of natural justice and principle of last come first go as also in violation of all the relevant Statutes framed by the University of Bombay. The Presiding Officer, therefore, directed the petitioner to reinstate the first respondent in her original post and pay her all dues for the period from the date of her termination till the date of reinstatement within two months from the date of the said order. It is this order which is challenged in this petition.
8. The impugned order is challenged on various grounds, viz : -
(i) the first respondent was appointed on temporary basis; that she all along continued to be temporary employee and hence her services could be terminated as per the terms and conditions mentioned in the letter of her appointment dated 17th July 1976;
(ii) that the principle of last come first go was not applicable to the employees/members of staff of the Society because the Rules and Regulations framed by the Society for the staff members, permitted the Society to retain in service staff members belonging to Neo-Buddha community though junior in service in preference to the staff members professing other religion;
(iii) that in view of Article 30 of the Constitution the Statutes framed by the Bombay University governing the conditions of service of teachers in affiliated and constituent colleges are not binding on the institutions run by the Society.
(iv) that the first respondent who was a part-time lecturer was not a teacher within the meaning of section 2(30) of the Act of 1974 and hence she could not invoke the statutes framed by the University or deemed to have been so framed, governing the service conditions of teachers in the affiliated colleges;
(v) that the management was justified in terminating the services of the first respondent because she refused to accept the transfer to Law College, which the management of the institution was competent to effect in view of the Rules and Regulations framed by the Society for the members of staff.
9. No doubt, initially the first respondent was appointed as part-time lecturer in the department of Mercantile Law on temporary basis for the period from 12th July 1976 to 14th March 1977, as mentioned in the letter of appointment. The terms of her appointment were as follows : -
The terms of appointment are as follows:-
(i) The post is temporary. In the event of its. becoming permanent his/her claims for permanent absorption will be considered in accordance with the rules in force.
OR
The appointment is part-time and will not confer any title to the permanent employment.
(ii) The appointment may be terminated at any time by a month''s (appointment governed by the University Rules and will be subject to such rules)/30 days'' notice given by either side viz. the appointee or the appointing authority. The appointing authority, however, reserves the right of terminating the services of the appointee forthwith or before the expiration of the stipulated period of notice by making payment to him/her of a sum equivalent to the pay and allowance for the period of notice on the unexpired portion thereof.
(iii) The appointment carries with it the liability to serve in any of the institutions run by the People''s Education Society.
(iv) Other conditions of service will be governed by the relevant rules and orders in force from time to time and/or as prescribed by the University concerned or the Government of Maharashtra.
It is, however, admitted position that the first respondent was continued in service after 14th March 1977 till her services came to be terminated with effect from 24th August 1981 by the letter-cum-order dated 21st August 1981. As mentioned above, she was second in seniority in the department of Mercantile Law and Prof. Sawant was admittedly junior to her. It is also an admitted position that the first respondent was appointed in permanent vacancy.
10. Moreover the Rules and Regulations for the staff framed by the People''s Education Society do not contemplate any temporary appointment. Regulation 3 in Chapter II specifically lays down that no appointment shall be made unless there is a post in existence. Regulation 5 in the said Chapter prescribes that every person who is appointed shall in the first instance be appointed as a probationer and before he is confirmed he shall obtain a medical certificate of fitness from the Doctor approved by the Society. Regulation 6 further lays down that after such person is confirmed, he shall be deemed to be a permanent employee of the Society and shall be entitled to three months'' notice before termination of his services and shall also be entitled to the benefit of Provident Fund. The first respondent, therefore, could not have been appointed on temporary basic and at the most it can be said that she was appointed in the first instance as a probationer as contemplated by Regulation 5 in Chapter II of the Rules and Regulations framed by the Society. As mentioned above, initially she was appointed for the period from 12th July 1976 to 14th March 1977 and as she was continued in service after 14th March 1977 she will be deemed to have been confirmed as part-time lecturer even as per the Rules and Regulations for staff framed by the Society.
11. It will also be appropriate at this stage to consider whether the Statutes framed by the Bombay University governing the conditions of service of teachers in affiliated and constituent colleges are applicable to the members of staff employed in the institutions managed by the Society, because reliance is placed by the learned Presiding Officer on the Statutes framed by the Bombay University regarding the service conditions of teachers is constituent colleges. Reliance is also placed on behalf of the first respondent on the directions issued by the Vice Chancellor in exercise of powers conferred by section 11 (6)(b) of the Act of 1974 in support of her contention that after expiry of period of two years she was automatically confirmed in her post.
12. The terms and conditions of service, other than scales of pay, of teachers, demonstrators and teachers in constituent colleges in Arts (including Education), Science and Commerce were laid down by the Senate of the Bombay University in supersession of their earlier resolution on the subject at their meeting held on 29th January 1971. These terms and conditions were formulated by the Senate in exercise of powers conferred on the Senate by clause (xv) of sub-section (1) of section 22 of the Bombay University Act, 1953, (hereafter called ''the Act of 1953'') to lay down the scales of pay and conditions of employment of members of staff in constituent colleges and constituent recognised institutions and to ensure the observance of the same through Syndicate. Part I of the terms and conditions of service generally lays down that all appointments of teachers, demonstrators and tutors, other than appointments of temporary character shall be made in accordance with the following terms and conditions of service. Clause (1) of Part II, which deals with rules regarding confirmation of teachers, demonstrators, and teachers appointed on probation, lays down that no person appointed as a teacher, demonstrator or teacher in a college shall be required to put in more than two years'' service as a probationer before he is confirmed. Part X deals with rules regarding termination of services of teachers, demonstrators or tutors by a college who are on probation, and (2) leaving of service of a college by a teacher, demonstrator or tutor. Clause 1 of Part X lays down that the services of a member of the staff who is on probation, shall not be terminated without one month''s notice, provided always that the date of expiry of such notice shall not fall within either academic term. Part XI contains rules regarding removal from service of a confirmed teacher, demonstrator or tutor by a college. Clause (1) of Part XI specifically lays down : -
No confirmed teacher, demonstrator or tutor shall be removed from service by a college except on one or more of the following grounds and except in accordance with the procedure prescribed hereinunder : -
1. Persistent negligence of duty; 2.Physical or mental unfitness;
3. Incompetence;
4. Misconduct:
Provided, however, that this rule shall not affect the provisions of Statutes, 205-211.
Clauses (4) to (11) lay down procedure which an institution is expected to follow for removing from service a confirmed teacher, while clauses (15) to (20) provide a remedy by way of appeal to a teacher so removed.
13. As mentioned above, the terms and conditions of service were laid down by the Senate in exercise of the power conferred by section 22 (1) (xv) of the Act of 1953. Though this Act was repealed by section 90 of the Act of 1974, the above referred rules and regulations regarding the terms and conditions of service of the teachers in constituent colleges laid down by the Senate on 29th January 1971 were saved by clause (xiii) of sub-section (1) of section 91 of the Act of 1974, which lays down that : -
all Statutes, Ordinances, Regulations and Rules, all notices and orders made or issued under this Act, shall, in so far as such Statutes, Ordinances, Regulations and Rules are not inconsistent with the provisions of this Act, continue in force and be deemed to have been made or issued under this Act, until they are superseded or modified by the Statutes, Ordinances. Regulations, Rules, Notices and Orders made or issued by or under this Act:
The Act of 1974 came into force on 20th May 1974. Section 42 of this Act confers powers on the Senate of the Bombay University to make Statutes prescribing the conditions of service of employees in affiliated colleges and recognised institutions, other than those managed and maintained by the State Government or the University. The said section reads as follows : -
42(1) Without prejudice to any power to make Statutes contained elsewhere in this Act, the Senate shall make Statutes to provide for the following matters in respect of Teachers and other employees in affiliated colleges and recognised institutions, other than those managed and maintained by the State Government or the University, namely : -
(a) the qualifications required for different posts, except those of Teachers;
(aa) the manner and mode of selection and appointment of Principals and Teachers;
(b) a reasonable period of probation and confirmation in respect of all permanent posts;
(c) the duties to be performed and the workload to be assigned to each category or posts;
(d) security of service;
(e) all disciplinary matters, including the procedure to be followed by the management for holding enquiries, except where an employee is convicted of a criminal charge involving moral turpitude;
(f) the pay, allowances and other benefits, including post retirement benefits, and;
(g) other conditions of service:
Provided that in making any Statute under this section in respect of Principals, Teachers and other employees in affiliated colleges and recognised institutions established and administered by minorities, whether based on religion or language, the Senate shall have due regard to the provisions of Article 30 of the Constitution of India.
It is an admitted position that the Senate of the Bombay University has not made any Statutes u/s 42 of the Act of 1974 and hence the conditions of service . employees in affiliated colleges and recognised institutions continue to be governed by the terms and conditions of service laid down by the Senate on 29th January 1971.
14-15. Further, pending making of the Statutes by the Senate, the Vice Chancellor of the University of Bombay, in exercise of powers conferred upon him by section 11 (6)(b) of the Act of 1974, has issued directions prescribing the revised scales of pay applicable to the existing teachers and Principals in the colleges affiliated to the University in the Faculties of Arts (including Education), Science and Commerce, other than those maintained by the State Government and also laid down the formula for fixation of pay in revised scales and the terms and conditions attached to the revised scales of pay. We are told that these emergency directions still continue to hold fort because the Senate has contended that the above referred conditions of service laid down by the Bombay University are not applicable to the members of staff employed by the Institutions administered by the Society. According to him, Dr. Ambedkar College and other-institutions owned and run by the Society are minority institutions within the meaning of Article 30 of the Constitution of India who have right to establish and administer educational institutions of their choice and hence these institutions can frame their own regulations and rules regarding the service conditions of the members of staff employed in various institutions belonging to the Society. It was also pointed out that it was incumbent on the University Senate to modify the Statutes in the light of Article 30 in their application to the affiliated colleges and recognised institutions established and administered by the minorities as contemplated by proviso to section 42(1) of the Act of 1974, quoted above. As mentioned above, the Senate of the Bombay University has as yet not passed any Statutes in exercise of the powers conferred by section 42(1) of the Act of 1974. Nor are earlier Statutes governing the service conditions of the teachers in affiliated colleges are modified as contemplated by proviso to section 42(1). The question, however, is whether Dr. Ambedkar College is a ''minority institution1 within the meaning of Article 30 of the Constitution of India?
16. Article 30 of the Constitution of India reads as follows : -
Article 30:-"Rights of minorities to establish and administer educational institutions: -
(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under this clause..
(2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.
This Article recognises the right of minorities, whether based on religion or language, to establish and administer educational institutions of their choice. The minority on which such right is conferred is either a religious minority or a linguistic minority. Hence unless the educational institution is established and administered by religious or linguistic minority, the institution cannot invoke Article 30 of the Constitution. This question was considered by Their Lordships of Supreme Court in the case of
The words "establish and administer" in Article 30(1) must be read conjunctively and so read it clearly shows that the minority will have the right to administer educational institutions of their choice provided they have established them, but it otherwise. The Article cannot be read to mean that even if the educational institution has been established by somebody else, any religious minority would have the right to administer it because, for simple reason or other it might have been administering it before the Constitution came into force.
Their Lordships went on to hold : -
As the Aligarh University was neither established nor administered by the Muslim Minority, there in no question of any amendment to the 1920 Act made by the Amending Acts of 1951 and 1965 being unconstitutional under Article 30(1) for that Article does not apply at all to the Aligarh University.
17. In the present case, as mentioned above, the Society which runs the Doctor Ambedkar College was founded on or about 8th July 1945 by Late Dr. B. R. Ambedkar and other members of the Scheduled Caste. The founders of the institution who belonged to Scheduled Caste did not constitute religious or linguistic minority at the time when the institution was established in 1945. They were Hindus and became Neo Buddhas and constituted a religious minority after they embraced Buddhism in October 1956. It was after some of the members of the Scheduled Caste embraced Buddhism that those persons who are styled as Neo Buddhas constituted a religious minority. The institution that came to be administered by Neo Buddhas after 1956 was not established by them. It was constituted by Scheduled Caste persons, who, as mentioned above, were Hindus. The Society and, therefore, Dr. Ambedkar College are not minority institutions within the meaning of Article 30 of the Constitution of India and proviso to section 42(1) of the Act of 1974. The institution, therefore, cannot contend that the Statutes framed by the University of Bombay governing the service conditions of the members of the staff in the affiliated colleges are not binding on it and that the service conditions of its employees will be governed solely by the Rules and Regulations for the staff framed by the Society.
18. It is also pertinent to note that the Society itself has accepted the position that the service conditions attached to the staff shall be regulated by the rules of the University. Chapter VI of the Rules and Regulations for the staff framed by the Society deals with the Teaching Staff. Regulation (1) in that Chapter reads as follows : -
The service conditions of this category of staff shall be regulated by the rules of the University but wherever the service condition which is not covered by the University rules, shall be governed by these regulations.
There is, therefore, no substance in the contention that the rules and regulations framed by the University of Bombay relating to the service conditions of the staff members in the affiliated colleges are not binding on any of the institutions administered by the Society, including Dr. Ambedkar College.
19. The next limb of argument of Shri Govilkar on this point is that the Statues framed by the University governing the service conditions of Teachers in affiliated and constituent colleges are not applicable to the first respondent because she is not a ''teacher'' within the meaning of clause (30) of section 2 of the Act of 1974. Section 2(30) defines a ''teacher'' to mean a full time professor, associate professor, reader, lecturer, demonstrator, tutor, master of method or director of physical education, if any, in an conducted, constituent or affiliated College or recognised institution in the University, and includes any other person imparting instructions or guiding research, whether serving full time or part-time or in an honorary capacity who are designated to be Teachers by the Statutes made on the recommendation of the Academic Council: Provided that any such Statutes may also declare that any class of persons whether serving full time or part time or in any honorary capacity shall not be Teachers for the purpose of this Act. Shri Govilkar, therefore, contended that a part-time lecturer, unless designated to be a Teacher by a Statute, cannot be a teacher within the meaning of section 2(30) of the Act of 1974. In support of this contention, he laid special emphasis on the definition of "Teacher of University" appearing in clause 31 of section 2 which includes even a part-time or honorary professor, associate professor, reader or lecturer, Shri Govilkar is right in contending that ordinarily part-time teacher, part-time lectured is not covered by the definition given in section 2 (30) of the Act of 1974 unless employees of this class are designated as teachers by the relevant Statutes. The opening clause of the terms and conditions of service, which were laid down by the Senate of the Bombay University on 29th January 1971 and which, as mentioned above, were saved by the Act of 1974 and which are not yet replaced or modified by the Statutes framed by the Senate u/s 42(1) of the Act of 1974, contains an explanation as to whom the terms and conditions of service would be applicable. The said clause, which is captioned as ''Explanation'' reads as follows : -
In these terms and conditions of service the expression "teacher, demonstrator or tutor" wherever it occurs means a full-time as well as a part-time teacher, demonstrator or tutor except where a particular term or condition expressly refers only to a full-time teacher, demonstrator or tutor.
It is, therefore, futile to urge that being a part-time lecturer, the first respondent is not governed by the terms and conditions of service applicable to the teachers in affiliated and constituent colleges.
20. Even though it was contended in the written statement filed on behalf of the society in the appeal preferred by the first respondent that Prof. Sawant was senior in service to the first respondent, it is conceded that Prof. Sawant was appointed as a lecturer in Commercial Law in the College in 1979-80. The first respondent, who was appointed on 17th July 1976, in the same department, was thus senior to Prof. Sawant. The claim of Sawant''s seniority was sought to be supported on the basis of his service in the sister institution at Aurangabad where according to the petitioner he was appointed in the year 1967. It is. however, an admitted position that in the sister institution at Aurangabad Prof. Sawant was not holding a teaching post and that he was holding some administrative post in that institution. Obviously, therefore, that service cannot be considered while determining the inter-se seniority as lecturers in the Commerce College at Bombay. Hence even assuming, that the management was obliged to effect retrenchment of the members of staff consequent upon reduction in the number of students in the S. Y. B.Com. class, it was obligatory on the management to terminate/retrench the service of Prof. Sawant instead of the first respondent. The retention of Prof. Sawant in service in preference to the first respondent, therefore, clearly contravened the principle of first come last go.
21. To support the action of the management in retaining Prof. Sawant in service in preference to the first respondent, reliance was sought to be placed on Regulation 15 in Chapter II and Regulation 7 in Chapter III of the Rules and Regulations for the staff framed by the Society. Regulation 15 in Chapter II deals with promotion to higher posts and reads as follows : -
Promotions to all posts in the Society''s services shall be strictly according to the seniority-cum-fitness. The cases of Scheduled Castes and Neo Buddhists shall be given preference irrespective of seniority, if they are otherwise found fit.
Chapter III of the Rules and Regulations contains regulations about appointment of members of the staff. According to Regulation 7 candidates belonging to the Scheduled Castes or Scheduled Caste converted to Buddhists after 14th October 1956 shall get a preference over others provided they fulfill the minimum prescribed qualifications and are found suitable otherwise.
22. It was contended by Shri Govilkar that the action of the management in retaining Prof. Sawant was consistent with those regulations. It is difficult to accept this submission because both these regulations are not attracted. The impugned action of the management in this case is neither a case of appointment nor of a promotion. It is a case of termination of services. There is nothing in the Rules and Regulations of the Society that in the event of retrenchment of members of staff, candidates belonging to Scheduled Castes or Scheduled Caste converted to Buddhism would be preferred for retention.
23. An mentioned above, clause (1) of Part XI of the terms and conditions of service laid down by the Senate of the Bombay University on 29th January 1971 lays down that no confirmed teacher, demonstrator or tutor shall be removed from service by a college except on one or more grounds mentioned in that clause and except in accordance with the procedure prescribed under clauses (2) to (14) of the said Chapter. Chapter XII of the Rules and Regulations framed by the Society contains discipline and appeal rules. Rule 4 specifically lays down that nothing in these rules shall operate to deprive any employee of the society of any right or privilege to which he is entitled by or under any law, rule, ordinance or orders for the time being in force by the University concerned. Rule 10 of Chapter XII deals with termination of service on grounds other than misconduct. This rule contemplates termination of services of a probationer on the ground of unsatisfactory work or inefficiency or if the post which the employee is holding is temporary and it is abolished and thirdly for failure to qualify to the post as required under the rules or contract of service. A permanent teacher, therefore, cannot be removed from service, except as mentioned in clause (1) of Part XI of the terms and conditions of service laid down by the Senate on 29th January 1971. No procedure is prescribed either in these terms and conditions of service nor in the Rules and Regulations for the staff framed by the Society for effecting retrenchment of permanent staff. Such retrenchment, even if permissible and necessitated by force of circumstances, has to be effected by following principle of first come last go. This principle was observed in breach by the management of the Society in retaining Prof. Sawant in service in preference to the first respondent.
24. The impugned action of the management in terminating the first respondent''s services was sought to be justified on the ground that the first respondent refused to obey the order of transfer, which the management was competent to pass. It is the case of the petitioner that in view of the proposed reduction of staff in the Commerce College the first respondent was sought to be transferred to the Law College, but she refused to accept the transfer and hence the management had no other alternative but to terminate her services. In support of the contention that the first respondent was bound to accept the transfer, reliance is sought to be placed on clause (iii) of terms of appointment mentioned in para 2 of the appointment order Dt. 17th July 1976 under which the first respondent was appointed in the college. The said clause specifically lays down that the appointment carries with it the liability to serve in any of the institutions run by the Society. It is, however, pertinent to note that the order dated 21st August 1981, by which the first respondent''s services were terminated, is blissfully silent about the so called refusal of the first respondent to accept the transfer to the Law College. The first respondent''s refusal to accept the transfer to the law college is not mentioned as a ground for which her services were sought to be terminated. No doubt an offer was made to the first respondent to accept alternative employment in the Law College, but admittedly the post of lecturer in the Law College carried with it fixed salary of Rs. 400/- as against the salary of Rs. 700/- which the first respondent was drawing in the Commerce College in a prescribed scale. The proposed transfer, therefore, was not a transfer to any equivalent post in a sister institution and hence the first respondent was not bound to accept the transfer. Further, as rightly mentioned by the Presiding Officer of the College Tribunal, no specific order was ever passed by the management transferring the first respondent to the Law College. There was, therefore, no question on the part of the first respondent disobeying any order, justifying her removal from service on that ground. The learned Presiding Officer, therefore, was perfectly justified in quashing the order of termination passed against the first respondent and directing the petitioner to reinstate the first respondent in service with full back wages. The Writ Petition, thus, deserves to be dismissed with costs.
25. Petition dismissed with costs. Rule discharged.
26. Oral application for leave to appeal to Supreme Court is rejected.
