Holding

The appointments of both the first and fifth respondents were invalid as they violated the Government resolutions and Bombay University directions on reservation, advertisement, and selection committee composition.

Summary

The case concerned the appointment of a Sanskrit lecturer in a college run by a trust, where the post was reserved for candidates from backward classes under Government resolutions and Bombay University directions. The trust appointed a non‑backward class candidate (the first respondent) repeatedly without issuing the required three advertisements in each academic year, and later appointed another non‑backward class candidate (the fifth respondent) without a duly constituted selection committee containing the mandated expert. The College Tribunal allowed salary claims but denied reinstatement, while the High Court reversed that decision, deeming the first respondent continuously employed and entitled to confirmation. The Supreme Court held that both appointments were illegal because the trust failed to comply with the statutory reservation procedure and the selection committee requirements, and that the University’s approval could not cure these defects. Consequently, the appeal was allowed, directing the trust to re‑advertise the post as prescribed and to follow proper selection procedures.

Issues considered

The validity of appointments made without complying with the Government resolutions and Bombay University directions on reservation and advertisement of teaching posts.
Whether the absence of the required expert in the selection committee renders the appointment invalid.
Whether the High Court erred in treating the first respondent's service as continuous and granting her confirmation and back wages.
Whether the University’s approval can validate an appointment that contravenes statutory procedural requirements.

Legislation cited

Bombay University Act, 1974s. 11(6)(b), s. 77-C

Subjects

reservationbackward classescollege teacher appointmentgovernment resolutionuniversity directionselection committeeadvertisement proceduredereservationprobationconfirmation

Judgment

A A YURVIDY A PRASARAK MANDAL AND ANR.
v.
MRS. GEETA BHASKAR PENDSE AND ORS.

APRIL 12, 1991

B [P.B. SAWANT AND M. FATHIMA BEEVI, JJ.]

Bombay University Act, 1974-Sections 11, 77-Government
resolutions and university directions on reservation/dereservation-
Reservation in appointment of college teachers in favour of backward
c/asses-Dereservation thereof-Procedure to be followed-Appoint-
C ments without following the procedure-Validity of filling up of the
post-Directions issued.

For the academic year 1983-84, there was a vacancy for the post
of Lecturer in Sanskrit, in the College managed by the appellant-Trust.
The said post was reserved for candidate from backward classes. The
D first Respondent, not belonging to any backward class, applied for the
post, even before the appellant-Trust issued an advertisement. An
advertisement was issued later without mentioning the academic year
for which the appointment was to be made, though admittedly it was for
the academic year 1983-84. The advertisement specifically stated that
the post was reserved for a backward class candidate and if no such
E candidate was available, a candidate from the non-backward classes
may be appointed for one year. Within a month, the advertisement was
repeated and yet no application was received from any candidate from
backward classes. Hence the appellant-trust appointed the First
Respondent, who had earlier applied, from 19.3.84 till 30.4.84.

F Again, an advertisement was issued in 1984 for the academic year
1984-85. And there was no response from any candidate belonging to
backward classes. The First Respondent was interviewed and appointed
for one year, till 19.4.85.

For the academic year 1985-86, no advertisement was issued. The
G First Respondent was again appointed to the said post from July 10,
1985 to April 30, 1986. Thereafter her services were terminated after
issue of notice.

No appointment was made to the said post for the academic year
1986-87. However, on 1.5.1987, an advertisement was issued inviting
H applications for the said post from candidates belonging to all classes,

282
PRASARAK MANDAL v. MRS. PENDSE 283

dereserving the post. Respondents 1 and 5 and another candidate, all
A
belonging to non-backward classes applied. The 5th Respondent was
selected and appointed to the said post .
.::. -....(
Thereafter, in respect of non-payment of salary for certain period
and for setting aside her termination order, the First Respondent
approached the College Tribunal. The Tribunal allowed her claim for B
salary for the relevant periods, but dismissed her claim for reinstate-
ment, holding that her appointment was purely temporary and her
claim that she should be deemed to have been confirmed because she
had served for two academic years was not established in the circum-
)I
stances of the case.

Against the Tribunal's decision, the First Respondent approached c
the High Court by way of a Writ Petition. The High Court allowed the
Writ Petition holding that notwithstanding the break in her actual
appointment, she was continuously in employment from March 19,
1984 to April 30, 1986, and hence entitled to the benefit of the resolu-

-
-
tions of the State Government and the University directions which, D
according to the High Court, laid down that an employee who was
appointed for two consecutive academic years must be deemed to have
been on probation right from the time of the first appointment and,
therefore, she should be confirmed in the post. The benefit of full back
wages, seniority etc. was also ordered.
E
Aggrieved by the Judgment of the High Court, the appellants
preferred the present appeal, by special leave.
J...
Allowing the appeal, this Court,

HELD: 1. The appellant-Trust had violated the directions of the F
Government as well as of the University in the appointments in question
as a result of which neither the appointment of the 1st respondent nor
that of the Sth respondent cao be said to have been validly made. Both

-
the appointments were made without following the Government Resolu-
tions and the University directions in the matter of reservation of seats
>~ for backward classes which are binding on the college. Unfortunately, G
these aspects of the matter which are evident from the record were lost
sight of both by the Tribunal and the High Court. [287G-H; 288A]

2.1. Admittedly, the selection of the 5th respondent was made by
a committee where neither the nominee of the Vice-Chancellor nor the
expert nominated by the University nor the nominee of the Director of H
284 SUPREME COURT REPORTS [1991] 2 S.C.R.

A Education (Higher Education), i.e., the Director of Ayurveda, was pre-
sent. The selection so made was, therefore, not valid. [289F] ·

2.2. There is nothing on record to show that when the appellant-
Trust forwarded its report on appointment of the 5th respondent, it
apprised the University of the absence of the expert at the time of his
B
selection. The University has not reserved the power to relax the rule
and permit selection without the presence of the expert. There Is
nothing in the University's letter to show why the University had con-
doned the absence of the expert. The approval given by the University
being in ignorance of the true state of affairs and in breach of the rule,
is legally ineffective and cannot validate the appointment. [289H, 290A-B]
c
3. Admittedly, the post was reserved for the academic year 1983-
84. The Trust bad not given three advertisements within six months for
any of the academic years 1983-84, 1984-85 and 1985-86. On the other
band, for the academic year 1983-84, it Issued only two advertisements.
It is not known as to why even these two advertisements were not issued
D
at the beginning of the said academic year. As regards the second
academic year 1984-85, it issued only one advertisement, and no
advertisement was issued for the academic year 1985-86. The initial
appointment of the 1st respondent for the academic year 1983-84 and
her continuation for the subsequent academic years, viz., 1984-85 and
1985-86 was thus in breach of the Government resolutions and the
E University direction and, therefore, illegal. Similarly, since the
appointment of the 5th respondent was made without following the
procedure prior to dereservation, viz., three advertisements repeated
every year for all the three academic years for which the post was to be
reserved, his appointment to the post, as if the post stood legally dere-
served, was also illegal since the post could not have been dereserved to
F make it available for a non-backward class candidate. [2948-E]

4. Even assuming that her Initial appointment and subsequent
continnation of service was valid, the First Respondent would not be
entitled to the benefit of the University Direction of March 11, 1987
because her entitlement to the vacation salary does not extend her
G period of employment up to the end of the vacation. That is a per-
quisite which is conferred on every teacher who has served during
the academic year. It has no connection with the continuation of the
employment since even those teachers whose services are validly
terminated before the beginning of the vacation period are given the
H benefit of the salary of the vacation per_iod. [29SE-F]
PRASARAK MANDAL v. MRS. PENDSE [SAWANT, J.J 285

S. The appellant-Trust shall advertise the post three times suffi-
A
ciently in advance and in any case within six months from the close of
the present academic year, viz., 1990·91 as a post reserved for the
backward class candidate, and if no application is received from a
suitable backward class candidate, the post will be deemed to have been
dereserved. The Trust will then proceed to fill in the same by a candi·
date belonging to non-backward classes. This fact may be made clear in B
all the three advertisements. The 5th respondent will be entitled to
apply for the post notwithstanding the fact that be has become overaged.
If be is selected on the basis of his other qualifications, the Selection
Committee shall relax in his favour the condition with regard to !he
maximum age. If be is appointed to the post, his appointment will be
a fresh one and bis past service will not count for the probation periOd.
The Trust shall constitute a proper Selection Committee according to c
the rules. [2960-F]

6. To overcome the hardship to the students, the Sth respondent
may be permitted to teach as a purely temporary teacher till the process
is completed for the academic year 1991-92. [297C] D

....,, CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1779
of 1991.

From the Judgment and Order dated 10.4.90 of the Bombay
High Court in W.P. No. 1944 of 1987. E

M.C. Bhandare, CPU Nair, Ms. Kamini Lao and M . N. Shroff for
""'- the Appellants.

.!!.. V.N. Ganpule, S.K. Agnihotri, A.S. Bhasme and Ms. H. Wahi
for the Respondents. F

The Judgment of the Court was delivered by

Sawant, J. Leave granted.

-). 2. Appellant No. 1 is a Trust which runs and manages an G
Ayurveda College in Bombay. Appellant No. 2. is the Principal of the
College. There was a vacancy in the post of a lecturer in Sanskrit for
the academic year 1983-84 which was admittedly reserved for a candi-
date from the backward classes. The Jst respondent had applied for
the said post on 19th September, 1983 even before the appellant-Trust
had invited applications by advertising the vacancy as it was required H
286 SUPREME COURT REPORTS [ 1991) 2 S.C.R.

A to do. Subsequently, on October 13, 1983, the appellant-Trust issued
an advertisement inviting applications for the post without mentioning
for which academic year the appointment was to be made. The parties
before us agree that it was for the academic year 1983-84. In the '>-'-;;;,-
advertisement, it was specifically mentioned that the post was reserved
for a backward class candidate and if no suitable candidate from the
B backward classes was available, a candidate from the non-backward
classes may be appointed for an year. Il appears that within a month
thereafter on the 12th November, 1983, a second advertisement was
issued repeating the earlier advertisement. No application was
received from any candidate from the backward classes in response
even to this advertisement, and hence, the 1st respondent who had ){,· -
C already applied as stated earlier, was appointed to the said post for the
period from March 19, 1984 till April 30, 1984. The total period of
service put in by the 1st respondent for the said academic year was 41
days. On April 28, 1984, the appellant-Trust issued an advertisement
for the same post repeating the contents of the earlier advertisement,
but for the academic year 1984-85. The applications were invited by
D 30th April, 1984. No candidate from the backward classes applied in
response to the said advertisement. The interview was held on June 30,
1984 and the 1st respondent was appointed for the period from 21st
August, 1984 to 19th April, 1985.
•
E
3. In the third academic year 1985-86, admittedly no advertise-
ment was issued and no applications from the candidates including
candidates from the backward classes were invited. However, the !st
.
respondent was appointed to the post from July 10, 1985 to April 30,
1986. Thereafter the !st respondent's services were terminated w .e.f.

-
30th April, 1986 by a notice dated March 12, 1986.

F 4. No appointment was made to the said post for the academic
year 1986-87. On May 1, 1987, the Trust issued advertisement inviting
applications to the said post from candidates belonging to all classes
since, according to the Trust, the post was dereserved during the said
period. Three candidates belonging to the non-backward classes
including the 1st respondent and the 5th respondent applied for the
d post and the 5th respondent was selected and appointed to the same.

5. It appears that the 1st respondent was not paid salary for the
summer vacations following the academic years 1984-85 and 1985-86.
She was also not paid salary from November 1985 to April 1986. She
approached the College Tribunal praying for salary for (i) November
H 1985 to April 1986, and (ii) for the summer vacations following
PRASARAK MANDAL v. MRS: 1'ENDSE [SAWANT, J.[ 287

academic years 1984-85 and 1985-86, i.e., for the months of May and
A
part of June 1985, and May and part of June 1986, and (iii) for setting
aside her termination of service and for reinstatement. The Tribunal
allowed her claim for the salary for the relevant periods, but dismissed
her claim for reinstatement holding that her appointment was purely
temporary and her claim that she should be deemed to have been
confirmed because she had served for two academic years was not B
established in the circumstances of the case. This decision was
delivered by the Tribunal on December 9, 1986. As stated earlier,
· during the academic year 1986-87, no appointment was made to the
said post and it was subsequent to this decision that an advertisement
was issued calling for applications from candidates belonging to all
classes and 5th respondent was appointed to the said post.
c
Against the decision of the Tribunal the 1st respondent approa-
ched the High Court under Article 226 of the Constitution, and the
High Court held that notwithstanding the break in her actual appoint-
ment, she was continuously in employment from March 19, 1984 to
April 30, 1986. She was, therefore, entitled to the benefit of the reso- D
.- lutions of the State Government and the University of Bombay dated
....,, September 29, 1986 and February 27, 1987 respectively which, accord-
ing to tbe High Court, laid down that an employee who was appointed
for two consecutive academic years must be deemed to have been on
probation right from the time of the first appointment and, therefore,
confirmed in the post. The High Court, therefore, allowed her petition E
and directed the appellants to reinstate her forthwith in the post and
also to treat her as if she had been in continuous employment from
'*'· March 19, J984 with the benefit of full back wages, seniority etc. The
High Court also directed the University, the Director of Ayurveda,
Maharashtra and the State of Maharashtra who were respondents 3, 4
and 5 respectively to the petition, and who are respondents 2, 3 and 4 F
to the present appeal respectively, to make appropriate sanctions
including grant of money, if necessary. The High Court further
granted cost and directed compliance with the orders by the appellants
within six weeks from the date of its order, which is April 10, 1990.

~. ~ 6. Although various contentions have been raised we find that it G
is not necessary to go into them. According to us the appellant-Trust
has violated the directions of the Government as well as of the Uni-
versity in the appointments in question in two major respects, as a
result of which neither the appointment of the !st respondent nor that
of the 5th respondent can be said.to have been validly made. Unfortu-
nately, these aspects of the matter which are evident from the record H
288 SUPREME COURT REPORTS [ 1991] 2 S.C.R.

were lost sight of both by the Tribunal and the High Court. The result
A ~
has been that the illegalities which are patent on the face of the record '
have been perpetuated.
y·--
7. The Government of Maharashtra had issued a Govt. resolu- I
lion No. USG. 1177/129387/XXXII (CELL) on October 25, 1977 pre-
B scribing conditions of service as shown in Appendix III to the resolu-
lion. By a further resolution of April 3, 1978, Government made it
clear that the revised scales of pay which were sanctioned by the reso-
lution of October 25, 1977 could be implemented only after statutes
had been duly made by the University. Since the making of the statutes ...
was to take some time and the revised scales of pay recommended by
c the University Grants Commission were to be effective from January ""
1, 1973 as laid down in the GR of October 25, 1977, the Vice-
Chancellor exercised his powers conferred upon him under Section
11(6)(b) of the Bombay University Act 1974 (hereinafter referred to as
the "Act") and issued his direction No. 192 of 1978 on 7th June, 1978.
This direction, among other things, laid down the mode of recruitment
D of the teachers and principals, as follows:
"'·
"Future recruitment to posts of Teachers and Princi- '.,-

pals of colleges shall be made through a Selection Commit- -:/'
tee, the composition of which is specified in the terms and ' .L
conditions (Appendix II).'"
E
Appendix II states as follows:

"Terms and conditions attached to the revised scales of pay.

(i) x x x x x x
F
(ii) All appointments of teachers in colleges shall be made
on merit and on the basis of all India advertisement. The
qualifications prescribed for the posts should essentially be
related to the academic attainment in tile subject con-
cerned and should .not be linked with language or other
G regional consideration. Appointment should not be made -" ~
on communal or caste consideration. The constitutio'ii~-......._ '
Selection Committee for recruitment to the posts of lectu- -........_ ,,
rers in a college should be as follows:

(a) Chairman, Governing Body of the College or his
H nominee;
PRASARAK MANDAL v. MRS. PENDSE {SAWANT, J.] 289

(b) a nominee of the Vice-Chancellor,
A
(c) one expert to be nominated by the University .
...
-.-{

(d) one nominee of the Director of Education (Higher
Education),
B
(e) Principalofthecollege;and

(f) Head of the Department concerned of the college.

No selection shall be considered valid unless at least one
expert is present. The recommendations of the Selection C
Committee shall be subject to the approval of the Vice-
Chancellor.

x x x x x x x"
(Emphasis supplied)
D
8. The effect of the aforesaid Government resolutions and the
-..,.- University directions is (a) that all appointments of teachers in colleges
have to be made on merit and on the basis of all India advertisement;
(b) thal the appointments have to be made by a Selection Committee
which consists, among others, of a nominee of the Vice-Chancellor, an
expert to be nominated by the University and a nominee of the E
Director of Education (Higher Education). No selection will be con-
sidered valid unless at least one expert is present for the selection.

9. Admittedly, the selection of the 5th respondent was made by
a committee where neither the nominee of the Vice-Chancellor nor the
expert nominated by the University nor the nominee of the Director of F
Education (Higher Education), i.e., in the present case of the Director
of Ayurveda Was present. The selection so made was, therefoTe, not
valid. Shri Bhandare, the learned counsel for the appellant-Trust
pointed out to us the letter of June 6, 1989 sent by the University of
Bombay according approval to the appointment of the 5th respondent
• .i. as a lecturer in Sanskrit on probation from 2nd July, 1987 and con- G
tended that in view of the said approval the invalidity of the appoint-
ment, if any, on account of the absence of the expert in the Selection
Committee, should be deemed to have been condoned. We are not
impressed by this contention. In the first instance, there is nothing on
record to show whether when the appellant-Trust forwarded its report
on appointment of the 5th respondent, the Trust had apprised the H
290 SUPREME COURT REPORTS [1991] 2 S.C.R.

University of the absence of the expert at the time of his selection.
A
Secondly, the University has not reserved the power to relax the rule i..
and permit selection without the presence of the expert. There is ~·
nothing in the University's letter to show why the University had con-1- - ..
doned the absence of the expert. It is, therefore, obvious that the
approval given by the University being in ignorance of the true state of
B affairs and in breach of the rule is legally ineffective and cannot vali-
date the appointment.

10. There is further a common illegality in the appointment of
both the 1st and the 5th respondent which arises on account of the
failure to follow the Government Resolutions and University direc-":'·
tions in the matter of reservation of the seats for the backward classes,
c which are binding on the College.

11. On 30th March 1981, the Government of Maharashtra pas-
sed a resolution in exercise of the powers conferred on it under sub-
Section (2) of Section 77-C of the Act issuing instructions to all the
D non-agricultural Universities in regard to the reservation of posts to be
made in favour of Scheduled Castes and Scheduled Tribes while mak-
ing appointments to teaching and non-teaching posts in the University>-
affiliated colleges and recognised institutions. The reservation pres-
cribed was as follows:

E (1) Scheduled Castes l3p.c.
(2) Scheduled Tribes 7p.c.
(3) Nomadic Tribes & Vimukta Jatis 4p.c.
Total
24p.c.
F

That resolution further says that the various orders contained in the
booklet "Reservations and other concessions in Government service
for backward classes" will be applicable for recruitment to the teach-
ing and non-teaching posts reserved for backward classes in the Uni-
G versity and the affiliated colleges and recognised institutions subject to ,; .i.
the following modifications in regard to recruitment to the teaching
posts. The modifications, among other things, were as follows:

"Similarly, at any given time of recruitment to the teaching
posts, only the total number of reserved vacancies and the
H sections from which they are to be filled in should be
PRASARAK MANDAL v. MRS. PENDSE [SAWANT, J.) 291

determined. It would be enough if the required percentage
is fulfilled as a whole and not with reference to any particu-
A
lar post. If the reserved vacancies cannot be filled, then so
many posts as cannot be filled in may be kept vacant for six
months and should be again advertised thrice. Even after
readvertising the posts 3 times if suitable candidates .
belonging to backward classes do not become available, B
they may be filled in by candidate belonging to the open
category."

• "For giving effect to the aforesaid instructions, it
will be necessary for the Universities to make statutes
under Section 77C(I) under their respective Universities
Acts of 1974. For ensuring immediate implementation, the C
Vice-Chancellors of the Universities may consider regulat-
ing the matter by issuing directions, pending making of the
Statutes by their Universities, under clause (b) of Section
11(6) of the respective Universities Act of 1974."
(Emphasis supplied) D

12. By its subsequent resolution of October 20, 1983, the
Government of Maharashtra clarified its earlier resolution of March
30, 1981 and stated as follows:

"1. x x x x x x x E
2. After reconsideration of the above decision, it is now
directed that if suitable candidates cannot be found to fill
posts reserved for backward classes in Universities, affi-
liated colleges and recognised institutions, those posts
should be temporarily filled with candidates belonging to F
non-backward classes for one academic year. But as
mentioned in the resolution the appointment of a non-
backward class candidate to a reserved vacancy should be
made only in the event of failure to find a backward class
candidate even after the post has been advertised thrice.
G
3. x x x x x x x x"
(Emphasis supplied)

13. Thereafter a further resolution was issued by the Govern-
ment on September 29, 1986 on the subject stating therein that it had
come to the notice of the Government that some institutions had not H
292 SUPREME COURT REPORTS [1991] 2 S.C.R.

A implemented the instructions contained in the earlier resolutions of
March 30, 1981 and of October 30, 1983. The Government therefore
directed that the said directions should be implemented strictly. This
resolution further directed that the non-backward class candidates
who were being reappointed for the second and third academic years
when backward class candidates were not found for appointment for
B the first academic year, should not be called for interview every year
and that the candidates belonging to the non-backward classes should
be appointed for the second and third academic year also, without
calling them for interview. It is further stated in the said resolution
that, similarly, as soon as the reserved post is dereserved, the _
appointed candidate should be confirmed in that post from the date of "
dereservation subject to all other terms and conditions. It was also
c directed that necessary statutes should be made by the University in
accordance with the provisions of the Act and for ensuring immediate
implementation, the vice-Chancellor should issue directions under
clause (b) of Section 11(6) of the Act.

D Pursuant to the said resolution of the Government, the Vice-
Chancellor of the University issued direction on March 11, 1987 as
~~= y

"x x x x x x x

E (1) That the reserved teaching post which is filled in by
appointment of a suitable non-backward class candidate in
the first year by following the prescribed procedure of
selection shall be advertised again for the second and third ;;
years for inviting applications only from persons belonging
to Scheduled Castes, Scheduled Tribes, Denotified Tribes
F and Nomadic Tribes. However, applications may also be
invited from persons belonging to non-backward class if the
suitable non-backward class candidate already appointed in
the first year is not available for reappointment in the

G
second or third year and or his services are required to be
terminated on account of unsatisfactory performance of
work in the first year;

(2) That if in the second year, in response to the advertise-
. -
ment, a backward class candidate is not available, then the
suitable non-backward class candidate already appointed in
the reserved post shall not be required to appear for inter-
H view before the Selection Committee again for the second
PRASARAK MANDAL v. MRS. PENDSE [SAWANT, J.J 293

and: or third year (s) but that he shall be reappointed in
A
the reserved post, if he is available for reappointment;

(3) That if in response to the third advertisement in the third
year, no application is received for the reserved post from
candidates belonging to SC, ST, DT, or NT, the college
authorities shall start the process of dereservation of the B
reserved post. After the process of dereservation of the
post is completed, the appointment of non-backward class
teacher shall be deemed to be on probation with retrospec-
tive effect from the date of his initial appointment if he has
held continuous appointment for two years in the college or
in any other college under the same management, and that
his appointment shall be confirmed from the dates of com- c
pletion of two years of continuous appointment.

The aforesaid direction shall come into force with
retrospective effect from the date of the Maharashtra
Government Resolution, that is, of 29-9-1986, which D
means that non-backward class teacher who is eligible to
get the benefit of the above direction shall be confirmed in
his post with effect from 29-9-1986 or from any later date
on which he may become eligible for confirmation in
accordance with the aforesaid directions.
E
x x x x x x x x"
(Emphasis supplied)

14. According to these Government resolutions and University
directions (a) whenever a post is reserved to be filled in by the candi-
dates from the backward classes, the post is to be advertised thrice F
within 6 months in each academic year. The post is to be kept vacant
· for the said 6 months if no suitable candidate from the backward
classes is available; (b) the post is to be filled in temporarily for one
academic year by a non-backward class candidate only after the three
advertisements have been given as above; (c) the aforesaid process is
to be repeated for two more academic years; (c) the candidate from G
the non-backward classes appointed temporarily in the first academic,
year for want of a backward class candidate, is to be continued as a
temporary appointee for the next two academic years without being
interviewed afresh for the next two years; (d) if in spite of the third
advertisement in the third academic year, no application is received
from a backward class candidate, the College authorities are free to H
294 SUPREME COURT REPORTS (1991] 2 S.C.R.

A start the process of dereservation of the reserved post; (e) after the
process of dereservation of the post is completed, the appointment of
non-backward class teacher will be deemed to be on probation with
retrospective effect from the date of his initial appointment and he
shall be confirmed in the post on his completing two years of his con-
~ -
tinuous service.
B
15. Admittedly, as poitted out earlier, the post was reserved
for the academic year 1983-84. The Trust had not given three adverti-
sements within six months for any of the academic years 1983-84,
1984-85 and 1985-86. On the other hand for the academic year 1983-
84, it issued only two advertisements, viz., on October 30, 1983 and
November 12, 1983. It is not known as to why even these two
"'
c advertisements were not issued at the beginning of the said academic
year. The academic year admittedly begins from June. May that be, as
it is. As regards the second academic year 1984-85, it issued only one
advertisement and that was on April 28, 1984. It did not issue any
advertisement for the academic year 1985-86. The initial appointment
D of the 1st respondent for the academic year 1983-84 and her continua-
ti on for the subsequent academic years, viz., 1984-85 and 1985-86 was ~

thus in breach of the Government resolutions and the University direc- .,....
tions and, therefore, illegal. Similarly, since the appointment of the
5th respondent was made without following the procedure prior to
dereservation, viz., three advertisements repeated every year for all
E the three academic years for which the post was to be reserved, his
appointment to the post, as if the post stood legally dereserved, was
also illegal since in the facts and circumstances of the case, it is obvious
that the post could not have been dereserved to make it available for a
non-backward class candidate.

16. Shri Bhandare, however, contended that in the meanwhile
" the appellant-Trust had taken steps to shift the reservation from the
post of a lecturer in Sanskrit to the post of lecturer in Sanhita. The
Trust had written a letter on July 2, 1986 for the purpose to the
Directorate of Ayurveda, and the Directorate had by its letter of July

0
11, 1986 accorded the sanction. It may, however, be pointed out that
the representation made by the Trust on July 1, 1986 for shifting the
reservation from the post of lecturer in Sanskrit to the post of lecturer
in Sanhita had proceeded on the basis that the Trust had made efforts
_,._
-
to fill in the said post from the candidates of the backward classes as
required by the Government resolutions and the University directions.
As pointed out above, the Trust had not made the efforts as required
I-I by the said resolutions and directions. It had not issued the adver-
PRASARAK MANDAL v. MRS. PENDSE [SAWANT, J.] 295

tisements as it was required to do. The sanction was obtained and
A
granted obviously on the basis of inadequate information. The sanc-
tion was, therefore, defective in law. The High Court unfortunately
._ · -'I did not notice these infirmities in the appointment of either of the
respondents.

17. Shri Ganpule, the learned counsel appearing for the 1st B
respondent contended that since the 1st respondent was appointed in
the first academic year, viz., 1983-84 and continued for the next two
academic years, viz., 1984-85 and 1985-86 she was entitled to the
benefit of the directions of the University contained in Circular No. 98
~of 1987 dated March 11, 1987 which had stated that if the non-
backward class teacher is on probation continuously for two years he
would be deemed to be on probation with retrospective effect from the
c
date of his initial appointment. Although the services of the 1st
respondent were terminated w.e.f. April 30, 1986, since she was
entitled to the benefit of the vacation salary following the academic
year 1985-86 she would be deemed to be in service after the completion
of the vacation and, therefore, she may be said to be in service on D
September 29, 1986 from which date the said University direction was
-<to be effective. This contention proceeds on the footing that her initial
appointment and the continuation of service for the next two academic
years was valid. We have already pointed out above th1it they cannot
be considered to be valid. However, assuming that her initial appoint-
ment and subsequent continuation of service was valid, she would not E
be entitled to the benefit of the University Direction of March 11, 1987
because her entitlement to the vacation salary does not extend her
"- period of employment up to the end of the vacation. That is a perqui-
site which is conferred on every teacher who has served during the
academic year. It has no connection with the continuation of the
employment since even those teachers whose services are validly F
terminated before the beginning of the vacation period are given the
benefit of the salary of the vacation period. Statute 424 of the
University which is reproduced as Annexure 'C' to the petition makes
this position clear. The argument, therefore, has no merit.

""' .>. In the view we have taken the appointments of both the 1st and G
the 5th respondents were not valid.

18. The post was reserved for the academic year 1983-84. We are
now at the end of the academic year 1990-91. A fresh appointment,
therefore, will have to be made for the academic year 1991-92. In the
meanwhile, several events have occurred. The appointment of the 1st H
296 SUPREME COURT REPORTS [ 1991] 2 S.C.R.

respondent has already been terminated w.e.f. April 30, 1986. The 5th
A
respondent has been in service from July 2, 1987. We are informed
across the bar that today he has become averaged. The !st respondent
was overaged even at the time of her initial appointment. Although the
advertisement had stated that the candidate should not be above 32
years, at the time of her initial appointment itself, she was about 40
,..
-
B years old. The advertisement :rnd also not mentioned anywhere that
the age was relaxable. But that is a matter of history. In the mean-
while. as pointed out above, on incomplete information, the Directo-
rate of Ayurveda has allowed the appellant-Trust to shift the reserva-
tion from the post to the post of a lecturer in Sanhita .. Taking into ,_.
account all the facts and circumstances, we are of the view that an ~

opportunity should be given to the appellant-Trust to cure the
c ille.galities.

19. While, therefore, we maintain the order of Tribunal and set
aside the order of the High Court, we direct the appellant-Trust to
advertise the post three times sufficiently in advance and in any case
D within six months from the close of the present academic year, viz.,
1990-91 as a post reserved for the backward class candidate, and if no
application is received from a suitable backward class candidate, the .,...
post will be deemed to have been dereserved. The Trust will then
proceed to fill in the same by a candidate belonging to non-backward
classes. This fact may be made clear in all the three advertisements.
F. The 5th respondent will be entitled to apply for the post notwithstand-
ing the fact that he has by this time become averaged. If he is selected
on the basis of his other qualifications, the Selection Committee shall
relax in his favour the condition with regard to the maximum age. If he
is appointed to the post, his appointment will be a fresh one and his
past service will not count for the probation period. The Trust shall for
F the purpose constitute a proper Selection Committee according to the
rules.

The appeal is allowed accordingly. The parties will bear their
own costs.

G 20. Before parting with this appeal, we must observe that our )..
......
decision has proceeded on the basis of the Government resolutions
and University directions placed before us. The resolutions and direc-
tions as pointed out above require that the posts reserved for back-
ward class candidates should be kept vacant for six months and it is
only after the third advertisement during the said six months in each
H academic year that they should be filled in by candidates belonging to
PRASARAK MANDAL v. MRS. PENDSE ISAWANT, J.) 297

the non-backward classes if suitable candidates from backward classes A·
are not available. Literally. interpreted, it would mean that in each
academic year, there will be no teacher for the first six months, if the
process of advertisement is to begin at the commencement of the
academic year. This is bound to cause hardship to the students. lt is,
therefore, incumbent upon the institutions concerned to advertise the
B
posts thrice within six months well before each academic year begins.
Since in the present case the academic year begins in June, the process
of advertisement must begin in December of the preceding year. This
should be the normal practice. An exception has to be made in the
present case because the decision is being given today. To overcome
the hardship to the students, we would recommend that the 5th
respondent may be permitted to teach as a purely temporary teacher c
during the period that the process is not completed for the academic
year 1991-92. However, the appellant-Trust will take steps within two
weeks from the receipt of this order to start the process of advertise-
ment as directed above.

G.N. Appeal allowed.

¥.