TMI Blog2007 (2) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... rer, pursuant to a vacancy which had arisen by leaving of an English Lecturer after the 1st term. The appellant was duly interviewed by the local selection committee and was appointed as full time lecturer in English on 22.11.1993 on temporary basis for 2nd term subject to the approval of the University. The appellant joined as Lecturer and has been working since then. The College advertised a number of vacant posts for the academic year 1994-1995 on 29.4.1994 by way of newspaper publication. One of the posts was the post of English Lecturer, but the same was reserved for Scheduled Caste candidate. The advertisement, however, provided that in case the backward class candidate was not available, then a candidate from the general category would be considered for appointment on year to year basis. No backward class candidate applied for the said post. Three general category candidates applied out of which the Appellant was selected and recommended for appointment by the Six-Members' Selection Committee on 11.7.1994. Vide appointment letter dated 15.7.1994, the Appellant was appointed as full time Lecturer in the college for one academic year as per the advertisement. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eduled caste category candidate applied for and reported for interview. Therefore, the appellant was once again appointed on temporary basis on the said post for one academic year on 15.7.1998. Thus as per Government resolution and the University circular, 6th advertisement with interchangeability clause had to be issued. The draft of the said advertisement for the academic year 1999-2000 was forwarded by the College to the University on 3.4.1999. The University duly vetted the said draft advertisement and returned the same to the College on 7.4.1999 for publication. Accordingly, the 6th advertisement was published by the College in Maharashtra Times on 13.4.1999 clearly mentioning that the post was being advertised for the 6th time on interchangeability basis as per Government Rules. However, no Scheduled Caste candidate applied for and reported for interview. 6. The report of the Selection Committee Meeting was forwarded by the College to the University on 30.7.1999 clearly mentioning that no backward class category candidate had reported for interview in English language. The nil report for appointment to the post of lecturer in English was accepted by the Univers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... backward class is available, respondent No. 1 to send representation to respondent No. 3 to de-reserve the post. The University after complying with the procedure to forward the same to respondent No. 4. (iv) Respondent No. 4 considering the clause for de- reservation and considering the judgment of this court in W.P. No. 1914 of 1999 dated 13th April, 2005 which has taken a view that it is not necessary that after de-reservation, that post must be re-advertised but it is open to the Government to relax the condition, to take the appropriate decision and communicate the same to respondent No. 3. (v) The Petitioner pursuant to the sixth advertisement if no backward class candidate is selected to be continued and the petitioner's services will not be terminated. If the order be adverse it is not to be acted upon for a period of twelve weeks after the communication of the decision of respondent No. 4 by respondent No. 1 to the petitioner. Rule made absolute accordingly. There shall be no order as to costs. Sd/- F.I. Rebello,J. Sd/- S.P. Kukday, J. It is relevant to mention here that on the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the interviews could not be conducted in terms of the sixth advertisement, we do not find this to be a fit case to review the order dated 13.4.2005. With the above directions, application stands disposed of. No order as to costs. Sd/- F.I.Rebello, J. Sd/- S.P. Kukday, J. 10. When the appellant came to know even at the time of hearing of the review petition an incorrect statement had been made, the appellant filed fresh Writ Petition No. 4851 of 2005. The College filed the counter affidavit bringing the correct facts to the notice of the High Court. However, the High Court refused to entertain the fresh writ petition on 3.8.2005 and passed the following order: CORAM: A.P. Shah D.Y. Chandrachud, JJ. rd August, 2005 P.C The present petition is in the nature of a review of the order passed by the Division Bench in Writ Petition No. 1914 of 1999. The Petitioner, in fact, sought review of the said order by filing a review application which came to be dismissed by the Division Bench by order dated 5th May, 2005. It is not permissible for the petitioner to seek the same relief ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VIDYAVARDHINI'S Annasaheb Vartak College of Arts, Kedarnath Malhotra College of Commerce E.S. Andrades College of Science Vasai Road West-401 202, Distt. Thane No. DIR/7226/2005-2006 Dated 1.10.2005 To The Addl. Secretary Special Cell, University of Mumbai Mumbai-400 032 Sub: De-reservation of Post : Mrs. D.G. Murdeshwar Katre Lecturer in English Sir, That our college had forwarded a proposal for de- reservation of the post held by Mrs. D.G. Murdeshwar-Katre, Lecturer in English vide letter dated 6.5.2005 for necessary action at your end. Pursuant to the telephonic conversation held on 30.9.2005 with your office, we were requested to forward the necessary details in Form-A which is enclosed herewith. It is requested that appropriate steps may be taken for de-reservation of the post of Mrs. D.G. Murdeshwar Katre. Thanking you, Yours truly, Sd/-illegible Principal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel appearing for the College. Mr. Gaurav Agrawal, learned Counsel appearing for the appellant submitted that the High Court failed to consider that its first order dated 13.4.2005 had been passed by relying upon a fraudulent mis-representation of the respondent-University contained in the affidavit dated 12.4.2005 that the 6th advertisement had not been issued, when the indisputable fact was that the said advertisement had been issued as per the approval of the University itself on 13.4.1999. Therefore, learned Counsel submitted that on this ground alone, the order dated 13.4.2005 ought to have been recalled and the factum of issuing the advertisement was in terms admitted at the time of hearing of the review petition. It was further submitted that the High Court failed to notice that pursuant to the advertisement dated 13.4.1999 interviews for the reserved post of English Lecturer in the College (respondent No. 4) were held on 5.7.1999 and no candidate from the backward class had turned up for the interview. Likewise, the High Court has not noticed that the College vide letter dated 30.7.1999 had given a non-availability report in relation to interviews for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by the appellant to the respondent-College at a time when no other candidate was willing to take the assignment. This apart, the appellant would be deprived of her livelihood if she is thrown out of her employment and irreparable injury would be caused to the appellant if the prayer made in the appeal is not granted. On the other hand, the respondents would not suffer any prejudice by granting the prayer made in the appeal as the appellant is fully qualified to teach English and has been doing so for the last 12 years. It is well settled by catena of decisions of this Court that if a case of fraud or mis-representation of such a dimension is discovered that the very basis of the order passed by a Court of law is affected, the Court can recall its order. The power to recall an order founded upon fraud and mis-representation is an inherent power of the Court. The present case is one such instance where the High Court has mislead by incorrect representations made by the University at the time of hearing of the writ petition and the review petition. The question was whether the post occupied by the appellant was entitled to be de-reserved as for six years no backward class candidat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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