Vidyavardhini Thr. Secretary v. Aniket Akhade

13. By relying upon the decision of Mohd Salman learned senior counsel submitted that the categories of appointments are carved out in the said decision. He thus submitted that three categories as carved out in the said decision are (i) after the expiry of the period, without any specific order of confirmation, a candidate continues as a probationary (ii) order of appointment itself states that at the end of the period of probation, the candidate shall stand confirmed in absence of any order to the contrary and (iii) in the absence of any such order of appointment or absence of any service Rule, an express order of confirmation is necessary to give a right to the post. He thus submitted that in all three cases, in the absence of an order or absence of any service condition, an express order of confirmation is necessary to give a right of confirmation to the candidate. An appointee cannot be deemed to be confirmed only on the fact that the candidate is allowed to continue at the end of the probation period. In the present case, the appointment of all three candidates was on probation for an initial period of two years. The same was extended only for one year with specific terms and conditions that the same would be on probation. The extension letter referred to the unsatisfactory performance of the candidates. In the absence of any further extension order, the term of the service of all three candidates ended on the expiry of the extended probation period. He thus submitted that before the extended probation period ended, the candidates were intimated about the termination of the services with one month’s pay as indicated in the original terms and conditions of the appointment letter. Hence, there was no deemed confirmation.

14. Learned senior counsel relied upon the decision in the case of Satya Narayan Jhavar in support of his submissions that ordinarily, a deemed confirmation of a probationary arises when the letter of appointment so stipulates or the Rules that govern the service conditions so indicate. He submitted that in the absence of any such condition in the appointment letter or the governing Rules and Regulations, it cannot be inferred that at the end of the probation period, there would be ifso facto deemed confirmation. He thus submitted that such deemed confirmation, if accepted, would certainly run contrary to the settled principles of law, as held by the Hon'ble Supreme Court, in the case of Satya Narayan Jhavar.

15. The learned senior counsel for the management relied upon the decision of the Hon'ble Supreme Court in the case of Dharam Singh in support of his contention that on completion of the extended period of probation, the appointing authority could dispense with the services of the candidate if his work or conduct during the probation period was unsatisfactory in the opinion of the management. He submitted that the principles of law laid down in the aforesaid decisions squarely apply to the facts of the present case.

16. Lastly, the learned senior counsel for the management relied upon the decision of the Hon'ble Supreme Court in the case of Durgabai Deshmukh and submitted that the law laid down in the aforesaid decisions is reiterated in the said decision, holding that mere continuation of a probationer's services beyond the period of probation does not lead to a deemed confirmation in service.

17. Thus, the learned senior counsel for the management submitted that the Tribunal recorded unsustainable reasons. The Tribunal held that the provisions of AICTE Regulations would govern the service conditions of the candidates; however, it failed to correctly appreciate the Regulations, which provide that after completion of the probation period of an initial two years, a candidate shall be confirmed and shall be informed in writing accordingly. Hence, in the absence of any communication about confirmation, the candidates cannot claim status of permanency. The Tribunal further erroneously held that there is no provision for extension of probation under AICTE Regulations, and hence, after completion of the probation period, the candidates were deemed to be permanent. Learned senior counsel thus submitted that in the absence of any specific Regulations, the Tribunal has erroneously held that there will be automatic confirmation after completion of the probation period. The Tribunal has erroneously relied upon Statute 444 framed under the Maharashtra Universities Act, which did not apply to technical institutions and is applicable only to the service conditions of teachers in the faculties of Arts (including education), science, commerce and law. He submitted that the appointment of the present candidates is in a technical institution and is governed by Appendix 'A' attached to the circular dated 10th February 2012.

18. The learned senior counsel for the management thus submitted that once the appointment of all three candidates was on probation on a temporary basis and for a limited period, there was no question of any deemed permanency. Hence, he submitted that the reasons recorded by the Tribunal for holding the candidates to have acquired deemed permanency are based on the Regulations not applicable to the service conditions of the candidates. He, therefore, submitted that the impugned Judgment and Order of the Tribunal deserves to be quashed and set aside by holding the termination of all three candidates to be in conformity with the applicable Rules and Regulations.

SUBMISSIONS ON BEHALF OF THE CANDIDATES:

19. Learned counsel appearing for all three candidates submitted that the terms and conditions referred to in the advertisement were in terms of original Rules and Regulations, which stood revised in Appendix 'A' published vide circular dated 10th February 2012. The learned counsel for the candidates relied upon the findings recorded by the Tribunal on the point of probation period, extension and confirmation as recorded in paragraphs 36 to 41 of the Judgment. He submitted that the Tribunal had rightly interpreted the governing rules and held that once the candidates were given an extension after completion of the initial probation of two years, the candidates were deemed to have been permanent. Once the deeming provision applied to the candidates, only because of the extension stating to be on probation, services could not have been terminated without following due procedure for termination of the candidates who are deemed to have been permanent. The management and the college have not disputed the findings of fact recorded by the Tribunal about the appointments of all three candidates and their extension. It is not the case of the management that the Tribunal has exceeded its jurisdiction. Hence, he submitted that this was not a fit case to exercise powers under Article 227 of the Constitution of India. In support of his submissions, the learned counsel for the candidates relied upon the decision of the Hon'ble Supreme Court in the case of Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil[6].

20. Learned counsel for the candidates further submitted that the candidates had relied upon the Regulations published by the University of Mumbai, which are on page 183 of the petition. The said Regulations No. 53 of 1993 are the relevant Regulations governing the service conditions of the candidates. Since these Regulations are sought to be revised by Appendix 'A' published vide circular dated 10th 6 (2010) 8 Supreme Court Cases 329 February 2012, even the original Regulations issued by the University of Mumbai apply to the service conditions of the candidates. Considering the said conditions, candidates’ services are deemed permanent upon completion of the initial probation period. The extension letter issued by the management confirms that the candidates are deemed permanent as they were permitted to continue with the services after the completion of the probation period. The Tribunal correctly read the decision of the Hon'ble Supreme Court in the case of Durgabai Deshmukh. He thus submitted that once the candidates were allowed to continue in service, the deeming provision would apply and the management is not entitled to terminate the services of the candidates without following the due procedure.

21. Learned counsel for the candidates submitted that in view of the proposition of law laid down by the Hon'ble Supreme Court, in paragraph 11 of the case of Satya Narayan Jhavar, the case of the candidates would fall in the second category and hence would be entitled to deemed permanency. There is no provision for an extension of the probation period, and thus, once the probation period was completed, a communication was required to be given if the candidates were not confirmed. He thus submitted that once by issuing a letter, the candidates were permitted to continue, the deeming fiction would apply, and the services of the candidates would be deemed to be permanent. He submitted that in identical facts in the case of Dharam Singh, the Supreme Court, in paragraph 6, held that on completion of two years, there is deemed confirmation, and a separate letter of confirmation is not necessary. He submitted that in the present case, all three candidates stand on a better footing as their services were continued by issuing the extension letter.

22. The learned counsel for the candidates submitted that the candidates in requirement of services do not have a choice of nonacceptance of the terms and conditions reflected in the appointment letter. Hence, the inconsistent clauses in the appointment letter cannot be applied to the disadvantage of the candidates, and their appointments must be read in terms of the governing service conditions as reflected in the Regulations. In support of his submission, he relied upon the decision in the case of Premlata Sathe Vs Governing Body of G. S. Tompe College and others[7].

23. The learned counsel for the candidates, therefore, submitted that in the present case, it is not the contention of the management that the appointment letter had terms and conditions that were in accordance with the governing statutes published vide circular dated 10th February

2012. There is no foundation in the memo of the petition in support of the argument that the terms and conditions of the letter of appointment would prevail as the letter of appointment was accepted by the candidates. This argument was never raised before the Tribunal, so the candidates never had an opportunity to deal with it and it was never examined by the Tribunal. Hence, the terms and conditions of the letter of appointment relied upon by the management are required to be ignored. In support of the said proposition, he relied upon the decision of the Hon'ble Supreme Court in the case of the Union of India (UOI) and others Vs. Dinesh Prasad[8]. He further submitted that the findings recorded by the Tribunal concerning the extension letter issued to the candidates are not explicitly questioned in the grounds of 7 (1981) Mah. L.J. 332 (FB) challenge in the petition. Hence, the interpretations relied upon by the learned senior counsel appearing on behalf of the management cannot be accepted.

24. Learned counsel for the candidates submitted that the proposition of law relied upon in the case of Ramkrishna Chauhan is not applicable to the facts of the present case as the said decision was in respect to the provisions of The Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (‘MEPS’ Act). So far as the decision in the case of Durgabai Deshmukh, the case relied upon by the learned senior counsel, he submitted that the same also is not applicable to the present case, as in the said case of Durgabai Deshmukh, there was a specific governing Rule, that provided that a confirmation letter, if not issued, there would not be any confirmation on expiry of the probation period. He, therefore, submitted that given the different facts of the present case, the proposition of law laid down in the case of Durgabai Deshmukh is not applicable in the present case.

25. Learned counsel for the candidates thus supported the findings recorded by the Tribunal. Regarding the Tribunal's reference to Statute 444, he submitted that in view of some typographical error, the Tribunal referred to the said Statute. Learned counsel thus submitted that the Tribunal has rightly directed reinstatement by considering the candidates to have been deemed permanent on the expiry of the probation period.

26. In so far as the Writ Petition filed on behalf of Aniket Akhade, to the extent of refusal of the back wages is concerned, the learned counsel for the candidates submitted that once the candidate is held entitled to be reinstated, back wages cannot be denied to the candidate as the candidate is entitled to be reinstated to the position on the date when he was terminated. In support of the sad submission, learned counsel relied upon the decision of the Hon'ble Supreme Court in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others[9]. SUBMISSIONS ON BEHALF OF MANAGEMENT IN Writ Petition of Aniket Akhade: 9 (2013) 10 Supreme Court Cases 324

27. In response to the Writ Petition filed on behalf of Aniket Akhade, to the extent of refusal of the back wages is concerned, the learned senior counsel for the management submitted that the evidence on record showed that Aniket Akhade was engaged in the business of manufacturing. He was unable to produce any supporting documents to show that the business was carried out by his mother. Thus, the Tribunal has rightly denied back wages by holding that he was gainfully employed.

CONSIDERATION OF SUBMISSIONS AND FINDINGS:

28. The Tribunal held that the AICTE Act and Regulations governed the services of the candidates, and the Regulations do not provide for extending the probation period. The Tribunal thus held that since there were regulations governing the service conditions, parties were not permitted to make contractual terms contrary to the statutory provisions. The Tribunal, thus, held that as per the Rules, the probation period was for two years with no right of extension; hence, the issuance of the letter for an extension of the probation period was meaningless.

29. The Tribunal thereafter referred to sub-clauses (vii) and (viii) of Rule 4b of the AICTE Regulations. Thus, the Tribunal held that the Regulations stipulated that on the expiration of the probation period of two years, the candidate shall be confirmed and that there was no condition precedent to assess the performance and hold it satisfactory. The Rules did not require the issuance of any order of confirmation upon recording the satisfaction. Hence, as per the Rules only a formal communication in writing about the confirmation was contemplated. The Rules provided for one month’s notice of termination before the expiry of completion of the probation period. Thus, the Tribunal held that the conditions in the Regulations made it amply clear that if no action were taken by the management before the completion of the probation period, there would be automatic confirmation.

30. Thus, the Tribunal held that there was automatic confirmation on completion of two years, and the candidates acquired the status of permanency. Hence, the termination being illegal, all three candidates were directed to be reinstated. The Tribunal held that Tarannum and Manisha did not disclose whether they were gainfully employed or not after termination. However, considering that for a substantial period, there was the COVID pandemic granted 50% back wages to them. However, Aniket Akhade was not granted back wages on the grounds that the material on record produced by the management showed that he was gainfully employed.

31. I have considered the submissions made by both parties. Perused papers. A draft advertisement for the appointment to the posts of Professor, Associate Professor and Assistant Professor in petitioner no. 2 college was approved by the University of Mumbai by letter dated 18th March 2016. The said letter referred to the University Circular dated 10th February 2012 for the constitution of the selection committee. The said letter further informed the petitioners to refer to the new norms of the AICTE as per the University Circular dated 10th February 2012. According to the said approval for the advertisement, petitioner no. 1 published the advertisement in newspapers on 30th March 2016, inviting applications for the full-time posts of Professor, Associate Professor and Assistant Professor for the academic year 2015-16. The said advertisement referred to the Circular dated 10th February 2012. Pursuant to the said advertisement all three candidates applied for the post of Assistant Professor. Interviews were conducted by the Selection Committee, and by letter dated 8th August 2016, all the said three candidates were appointed on probation for two years with effect from 25th July 2016 on the terms and conditions mentioned in the said letter. The appointment letters stated that the services would be governed by the provisions of the Maharashtra Universities Act, 1994 and the Statutes, Ordinances, Regulations and Rules of the Governing Body of petitioner no. 1. The terms and conditions in the appointment letters relevant for deciding the rival contentions of the parties are contained in clauses 1, 2, 3 and 11, which read as under: “1. Your appointment is on probation for a period of two years with effect from July 25, 2016 and is subject to approval from the University of Mumbai. If however, your appointment is not approved by the University of Mumbai, your services shall be terminated immediately without further notice.

2. During the period of probation, your services are terminable by giving three months notice from either side or three months salary in lieu thereof. On completion of the period of probation, your appointment shall be reviewed, and if your services are satisfactory, you may be confirmed, provided your appointment is approved by the University of Mumbai.

3. Your appointment on probation shall not be deemed as confirmed unless a formal order of confirmation is issued to you at the end of your probation period.

11. The appointment is a full time one and does not permit you to engage yourself in any outside business, consultation, teaching in other institutions, Private Coaching/Tuitions and/or such other outside work either with or without remuneration, without express sanction by the college authorities.”

32. Before the expiry of the two years of probation, petitioner no. 1 issued a letter dated 23rd July 2018 for an extension of the probation period for one year, i.e. until 24th July 2019. The said letter of extension stated that the performance of the candidates was found to be less than satisfactory and was instructed to improve the performance, but there was no significant improvement. The letter further stated that management decided to give additional time for improvement. Hence, the probation period was extended by one year. Before the extended period of probation expired, the management issued a letter dated 8th July 2019 terminating the services with immediate effect and the amount towards one month’s salary was paid.

33. The relevant Rule relied upon by the management governing the service conditions of the candidates contained in clauses (vii) and

(viii) of Rule 4b of Appendix ‘A’ was brought into force vide AICTE

Notification dated 22nd January 2010. The University of Mumbai, vide Circular dated 10th February 2012, informed the affiliated colleges, institutes in Engineering, Technology including Bio-Technology, etc., about the Notification dated 22nd January 2010 framing the regulations for revised qualifications and selection procedure for appointment of teachers in the colleges of Engineering etc. The said circular stated that in the meeting of the Faculty of Technology held on 30th August 2011, it was resolved as under: “It was resolved that the Rules regarding selection committee, selection procedure and eligibility criteria/qualifications and Equivalence for teaching posts in the disciplines, coming under the purview of All India Council for Technical Education (AICTE) are revised which are enclosed herewith as Appendix ‘A’.”

34. The circular dated 10th February 2012 further stated that the said resolution was accepted by the Academic Council at its meeting held on 21st December 2011 and approved by the Management Council at its meeting held on 6th January 2011.

35. The said Rule 4b (vii) of the AICTE Regulations provides for a probation period of 24 months without any provision for extending the probation period. The said Rule further mandates confirmation on the expiry of 24 months and requires informing in writing. It also provides an option to terminate the services with atleast one month’s notice served upon the appointee before the expiry of the probation period or payment of one month’s salary. The sub-rule (viii) of Rule 4b provides that probationary service can be terminated without assigning any reasons if it is held that there is no satisfactory completion of the probation period. Thus, the AICTE Regulations do not permit any extension of the probation period and the Rules mandate confirmation on the expiry of the probation period with an option to terminate the services prior to the expiry of the probation period. Thus, if there is no termination before the expiry of the probation period, it is mandatory for the appointing authority to confirm the probationer and accordingly inform the probationer in writing. Thus, the option of termination before the expiry of the probation period is permitted only if it is held that the appointee has not completed the probation satisfactorily. Thus, if there is no termination before the expiry of the probation period as provided in the Rules, confirmation is mandated and the only requirement is to inform the probationer about the confirmation.

36. In the present case, admittedly, there was no termination before the expiry of the probation period; instead, the management allowed the candidates to continue by extending the probation period by one year on the grounds that the performance was less than satisfactory. It is not the case of the management that an extension of the probation period was permitted under the Rules. Thus, confirmation is mandatory when there is no termination before the expiry of the probation period, as provided in the Rules. The formal requirement to inform the appointee about the confirmation cannot be interpreted to mean that there is no confirmation in the absence of any such information. Thus, as per the said AICTE Rules, the candidates are entitled to claim deemed confirmation on completion of 24 months of probation period. Thus, the Tribunal has correctly held that the extension of the probation period by one year is meaningless. The management failed to exercise the option of termination as provided under the Rules and instead permitted the candidates to continue by issuing a letter of extension of the probation period. The Rules make it mandatory to confirm the appointment on completion of 24 months of probation. Hence, the candidates are entitled to claim permanency on completion of 24 months of probation. Thus, subsequent termination of the candidates is not in accordance with the Rules and thus is rightly held by the Tribunal as illegal.

37. However, the learned senior counsel for the management relies upon the terms and conditions of the appointment letter for justifying the action of extension of the probation period and subsequent termination prior to the expiry of the extended period of probation. A perusal of the terms and conditions of the appointment letter also does not provide for any extension of the probation period. The said terms and conditions only provide for reviewing the appointment, and if services are satisfactory, it may be confirmed. The said terms further intimates the appointee that the appointment on probation shall not be deemed as confirmed unless a formal order of confirmation is issued. The management has relied upon and followed the AICTE Regulations for making the appointment on probation as per the AICTE Rules; hence, they cannot turn around and say that they will not follow the Rules for confirmation and only rely upon the terms of the appointment letter, which are contrary to the Rules.

38. As rightly argued by the learned counsel for the candidates, there is no foundation for such an argument and for the first time it is orally made before this Court by relying upon the terms and conditions in the appointment letter. A perusal of the written statement before the Tribunal and the memo of the petition does not reveal any pleading supporting the oral arguments made by the learned senior counsel for the management that once the candidates accepted the appointment on the terms and conditions stated in the appointment offer / letters, they were bound by those terms and conditions notwithstanding the governing Rules. The management has relied upon the AICTE Regulations for the appointment procedure and for justifying the termination action. Hence, now, for the first time, without any foundation of pleadings, cannot orally argue that the terms and conditions of the appointment letter shall prevail to justify the action of termination. Thus, the principles of law down in the decision of the Hon’ble Supreme Court in the case of Dinesh Prasad relied upon by the learned counsel for the candidates is squarely applicable to the present case. The Hon’ble Supreme Court, in paragraph 20, held as under: “20. In our view, the learned Single Judge was clearly in error in allowing such argument. Firstly, the argument was raised without any foundation in the writ petition. No plea of actual or likelihood of bias was raised in the writ petition. There was also no plea taken in the writ petition that he was denied fair trial in the course of Summary Court Martial. Secondly, and more importantly, the learned Single Judge overlooked and ignored the statutory provisions referred to hereinabove. The Division Bench also failed in considering the matter in right perspective and in light of the provisions in the Army Act and the Army Rules.”

39. The Appeal before the Tribunal was filed under Section 81 of the Maharashtra Universities Act 2016 (“said Act of 2016”). As per Section 82 of the said Act of 2016, for the purposes of hearing and disposal of appeals, the Tribunal is vested with the same powers as are vested in an appellate court under the Code of Civil Procedure, 1908. Thus, the Tribunal is a court of facts. Hence, any argument based on a factual assertion cannot be for the first time made during oral arguments before this Court hearing a petition invoking writ jurisdiction under Articles 226/227 of the Constitution of India.

40. Thus, even the principles of law laid down in the case of Ramkrishna Chauhan relied upon by the learned senior counsel for the management would not be of any assistance in the present case. In the said case, the issue before the Hon’ble Full Bench of this Court was whether it was open to the School Tribunal to hold that an employee would be deemed to be on probation within the meaning of Section 5(2) of the MEPS Act, on the ground that the appointment was made on clear and permanent vacancy, notwithstanding the fact that the appointment letter specifically stipulated that the appointment has been made in a temporary capacity. The learned senior counsel for the management relied upon the principles of law laid down in paragraph 24 that if the parties accept the terms and conditions stipulated in the appointment order, later on, it is not open to the employee to challenge that appointment, being contrary to the Rules or on the ground that the terms and conditions stipulated therein were not legally valid. The Hon’ble Full Bench of this Court held that it is a question of fact to be pleaded and proved in appropriate proceedings on a case-to-case basis and that there is no legal fiction or deeming provision that every appointment made against the permanent vacancy is deemed to be on probation.

41. The observations of the Hon’ble Full Bench on the legal principle in paragraph 24 refers to the decision of the Hon’ble Supreme Court in the case of Kalpataru Vidya Samaste Vs S. B. Gupta10. The Hon’ble Supreme Court in paragraph 8 held as under; “8. In the instant case, as noticed above, the respondent has accepted the appointment including the terms and conditions stipulated in clause 11 of the appointment order and rejoined the post from 4-9-1995 and continued in the post up to 29-2-1996 on which date the period of six months came to an end. He raised grievances before the Tribunal after the probationary period came to an end by efflux of time. Having accepted the terms and conditions stipulated in the appointment order and allowed the period for which he was appointed to have been lapsed by efflux of time, he is not permitted to turn his back and say that the appointment was dehors the Rules or the terms and conditions stipulated in the appointment, were not legally valid.” Emphasis applied

42. Thus, the legal principle in the decision of the Hon’ble Full Bench of this Court referring to the decision of the Hon’ble Supreme Court in the case of Kalpataru Samaste is with reference to the facts of the case. In paragraph 8 of the decision of Kalpataru Samaste, the legal principle is in the light of the facts of the case referring to the conduct of the employee who accepted a temporary appointment of six months and a second appointment without any demur. Hence, in the peculiar facts of the case, the Hon’ble Supreme Court came to the conclusion that the employee is not permitted to turn his back and say that the appointment was dehors the Rules.

43. In order to examine the arguments of the learned senior counsel for the management and correctly understand the legal principles with reference to the aforesaid decisions of the Hon’ble Full Bench of this Court and the Hon’ble Supreme Court relied upon by the learned senior counsel for the management, it is necessary to refer to the principle of the ratio decidendi of a judgment. The Hon’ble Supreme Court in the decision of Arasmeta Captive Power Co. (P) Ltd. Vs Lafarge India (P) Ltd11 held as under in paragraphs 38 and 39; “38. At this stage, we may also profitably refer to another principle which is of assistance to understand and appreciate the ratio decidendi of a judgment. The judgments rendered by a court are not to be read as statutes. In Union of India v. Amrit Lal Manchanda [(2004) 3 SCC 75: 2004 SCC (Cri) 662] it has been stated that: (SCC p. 83, para 15) “15. … Observations of courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. [The] observations must be read in the context in which they appear to have been stated. … To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.

39. In Som Mittal v. State of Karnataka [(2008) 3 SCC 574: (2008) 2 SCC (Cri) 1: (2008) 1 SCC (L&S) 910] it has been observed that: (SCC p. 581, para 9) “9. … Judgments are not to be construed as statutes. Nor words or phrases in judgments to be interpreted like provisions of a statute. Some words used in a judgment should be read and understood contextually and are not intended to be taken literally. Many a time a Judge uses a phrase or expression with the intention of emphasising a point or accentuating a principle or even by way of a flourish of writing style. Ratio decidendi of a judgment is not to be discerned from a stray word or phrase read in isolation.” emphasis applied

44. In the present case, admittedly, the appointment is on probation. Hence, a decision on the confirmation of probation has to be made in accordance with the applicable Rules. Management has relied upon the AICTE Regulations for making the appointment. Thus, the management cannot deviate from the Rules and say that they will not follow the Rules and rely only upon the terms and conditions of the appointment letter, though the same is contrary to the Rules. Thus, the principles of law laid down in the case of Ramkrishna Chauhan are not helpful to the management in view of the different facts of the present case.

45. The Tribunal has also referred to the UGC Regulations of 2010. However, according to the management, the UGC Regulations are not applicable as petitioner no. 2 is a College of Engineering and Technology, and the service conditions of the candidates are governed by the AICTE Regulations. Petitioner no. 1 is a registered society and trust that runs the Petitioner no. 2 College of Engineering and Technology. Petitioner No.2 is an unaided college approved by AICTE and affiliated with the University of Mumbai. The Tribunal has accepted the management's contention that the candidates' service conditions are governed by the AICTE Act and Regulations. Nothing was argued, doubting the applicability of the AICTE Act and Regulations.

46. Thus, the management cannot rely upon the terms and conditions of the appointment letter, which are contrary to the AICTE Regulations. The management has also relied upon the AICTE Regulations for making the appointment. The advertisement issued by the management is also in terms of the AICTE Regulations. Thus, the learned counsel for the candidates is right in submitting that the terms and conditions of the appointment letter cannot be read to the disadvantage of the candidates when the Rules support the contentions of the candidates that they are entitled to deemed confirmation on completion of the probation period. Thus, the principle of law laid down by the Hon’ble Full Bench of this Court, relied upon in the case of Premlata Sathe, supports the arguments on behalf of the candidates. The Hon’ble Full Bench of this Court held that normally, a dispute or fight between an individual teacher and the management is unequal in nature, and an unscrupulous employer cannot be permitted to take advantage of his own wrong.

47. The Hon’ble Supreme Court, in the decision of Satya Narayan Jhavar after considering the earlier decisions on the point of probation and deemed confirmation, has summarized the well-established principles of law in paragraph 11, which is reproduced below: “11. The question of deemed confirmation in service jurisprudence, which is dependent upon the language of the relevant service rules, has been the subject-matter of consideration before this Court, times without number in various decisions and there are three lines of cases on this point. One line of cases is where in the service rules or in the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. The other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that the officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry the order of termination has not been passed. The last line of cases is where, though under the rules maximum period of probation is prescribed, but the same requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired.”

48. I have already held that confirmation is mandatory when there is no termination before the expiry of the probation period, as provided in the AICTE Rules and that the formal requirement to inform the appointee about the confirmation cannot be interpreted to mean that there is no confirmation in the absence of any such intimation. Thus, as per the said AICTE Rules, the candidates are entitled to claim deemed confirmation on completion of 24 months of probation period. I find merit in the submissions of the learned counsel for the candidates that their case would fall in the second category as held by the Hon’ble Supreme Court in the decision of Satya Narayan Jhavar.

49. In the case of Durgabai Deshmukh, the Rules stipulated the satisfaction of the appointing authority as a condition precedent to the issuance of an order of confirmation, and as no order of confirmation was issued by the appointing authority, the Hon’ble Supreme Court held that the case was squarely covered within the third category of cases enumerated in Satya Narayan Jhavar. Hence, reliance placed by the learned senior counsel for the management on the decision in the case of Durgabai Deshmukh is of no assistance to the Petitioners in view of the different facts of the present case.

50. The reliance placed by the learned senior counsel for the management on the decisions in the cases of Mohd Salman and Dharam Singh is also of no assistance to the Petitioners. In the case of Dharam Singh, the Constitution Bench of five Judges of the Hon’ble Supreme Court has explained the consistent view on the point of appointment on probation and confirmation in paragraph 3 as follows; “3. This Court has consistently held that when a first appointment or promotion is made on probation for a specific period and the employee is allowed to continue in the post after the expiry of the period without any specific order of confirmation, he should be deemed to continue in his post as a probationer only, in the absence of any indication to the contrary in the original order of appointment or promotion or the service rules. In such a case, an express order of confirmation is necessary to give the employee a substantive right to the post, and from the mere fact that he is allowed to continue in the post after the expiry of the specified, period of probation it is not possible to hold that he should deemed to have been confirmed. This view was taken in Sukhbans Singh v. State of Punjab [1963 (1) SCR 416, 424-426], G.S. Ramaswamy v. Inspector- General of Police, Mysore State, Bangalore [(1964) 6 SCR 278, 288-289], Accountant General, Madhya Pradesh, Gwalior v. Beni Prasad Bhatnagar [ CA No 548 of 1962 decided on January 23, 1964], D.A. Lyall v. Chief Conservator of Forests, U.P. [ CA No 259 of 1963 decided on February 24, 1965], and State of U.P. v. Akbar Ali [(1963) 3 SCR 821, 825-826]. The reason for this conclusion is that where on the completion of the specified period of probation the employee is allowed to continue in the post without an order of confirmation, the only possible view to take in the absence of anything to the contrary in the original order of appointment or promotion or the service rules, is that the initial period of probation has been extended by necessary implication. In all these cases, the conditions of service of the employee permitted extension of the probationary period for an indefinite time and there was no service rule forbidding its extension beyond a certain maximum period.”

51. In the facts of the case in Dharam Singh, it was thus held that upon completion of the probation period, the authority could dispense with the services if their work or conduct was unsatisfactory. Instead, they were continued for some time and allowed to draw increments. The Rules did not require them to clear any test or fulfil any condition before confirmation. There was no compelling reason to dispense with their services and reemploy them on a temporary basis. Thus, it was held that the High Court rightly held that they were deemed to have been confirmed.

52. In the case of Mohd Salman High Court set aside the termination on the ground that on completion of probation of two years, there was an automatic confirmation and, therefore, the decision in Dharam Singh's case was applicable. The Hon’ble Supreme Court held that the decision of Dharam Singh was not applicable, and the decision in the case of State of UP Vs Akbar Ali Khan12 was relied upon. In Akbar Ali Khan, a similar rule as that in the case of Mohd Salman was considered. In the said cases there was no Rule that on the expiry of the probation period, the probationer shall be deemed to have been confirmed. In Akbar Ali Khan, a departmental exam was required to be cleared to found fit for confirmation. Hence, it was held that if the order says that at the end of the probation period, the appointee shall stand confirmed, then in the absence of any order to the contrary, the appointee shall acquire the substantive right of permanency even without an order of confirmation; and, in all other cases, an express order of confirmation is necessary without any such order or service rule. So, if a probationer is allowed to continue in the absence of such an order or any service rule, the appointee, by implication, will continue on probation. In the said case even the appointment order mentioned that services will be regularized only if probation is found satisfactory. Therefore, it was held not entitled to deemed confirmation in the absence of any order of confirmation. Thus, even the reliance on the decision of Mohd Salman is misplaced in view of the different facts of the present case.

53. So far as the petition filed by Aniket Akhade challenging the refusal to grant back wages is concerned, I do not find any merit in the submissions made on his behalf. On examining the material on record the Tribunal has held that Aniket Akhade was gainfully employed. Nothing is argued to show any error in the finding of facts recorded by the Tribunal on the said aspect. Hence, the decision of the Hon’ble Supreme Court in the case of Deepali Surwase relied upon by the learned counsel for Aniket Akhade is of no assistance to him.

54. The learned counsel for the candidates has relied upon the decision in the case of Shalini Shyam Shetty. He submitted that it is not the case of the management that the Tribunal has exceeded its jurisdiction. He further submitted that substantial justice was done by the Tribunal and that this is not a case to exercise powers under Article 227 of the Constitution of India. By this petition, the management has invoked the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India and prayed to issue a Writ of Certiorari for setting aside the judgment and order of the Tribunal. In the said decision of Shalini Shyam Shetty, the Hon’ble Supreme Court has summarized the scope of interference under Article 227 of the Constitution of India. The relevant extracts from paragraph 49 are as under: “49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated: …….. (e) According to the ratio in Waryam Singh [AIR 1954 SC 215], followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, “within the bounds of their authority”. (f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.”

55. I do not find that the Tribunal has committed any jurisdictional error. There is no violation of the principles of natural justice. I do not find any manifest error or perversity in the reasons recorded by the Tribunal. Substantial justice is done. Powers under Articles 226 and 227 are discretionary and equitable reliefs. This is not a fit case for exercising powers under Articles 226 or 227 of the Constitution of India.

56. For the reasons recorded above, the petitions are dismissed. [GAURI GODSE, J.]

57. At this stage, learned counsel for the Management seeks stay of the order of the Tribunal to enable the petitioners to approach the Hon’ble Apex Court. Learned counsel for the Teachers on instructions submits that the original appellants teachers will not take any further steps in the execution application for two months from today. [GAURI GODSE, J.] Designation: PS To Honourable Judge