The Bombay High Court has clarified that mere performance of duties in a reserved post, without a formal appointment order, cannot create a legal right to absorption - especially in posts reserved for Scheduled Castes or Scheduled Tribes. This judgment reinforces the principle that service rights in public institutions arise only from documented appointments, not from de facto responsibilities.
Background & Facts
The Dispute
The present writ petition challenges the order of the College Tribunal dated 5 October 2012, which directed the Chetana Education Trust (petitioners) to reinstate respondent No. 1, Ahok Hiraman Gaikwad, as a Library Attendant in a post reserved for the Scheduled Tribe category. The Tribunal further directed that all service benefits be granted retroactively. The petitioners, the managing body of an educational institution, contend that respondent No. 1 was never appointed as Library Attendant and has always been employed as a Peon under a temporary contract.
Key Facts
- Respondent No. 1 was appointed as a Peon by an order dated 08.12.2004, with consolidated pay and temporary status
- The appointment order explicitly stated the designation, salary, and nature of employment
- Respondent accepted the appointment without objection and continued in the role of Peon
- He performed duties in the library premises, but no formal change in designation was ever recorded
- Advertisements for the post of Library Attendant were issued in 2009 and 2012, both reserved for Scheduled Tribe candidates
- Respondent participated in the selection process for these posts but was never selected or appointed
- No appointment order, resolution, or official record exists to show his appointment as Library Attendant
- The institution has never issued any order upgrading his designation from Peon to Library Attendant
Procedural History
- 08.12.2004: Appointment order issued appointing respondent as Peon
- 2009: Advertisement issued for Library Attendant (ST-reserved post); respondent applied
- 2012: Second advertisement issued for same post; respondent applied again
- 2012: College Tribunal initiated proceedings under Section 59 of the Maharashtra Universities Act, 1994
- 05.10.2012: College Tribunal allowed appeal and directed reinstatement as Library Attendant in ST-reserved post with full service benefits
- 26.03.2013: Writ petition filed before Bombay High Court; interim protection granted; petitioners stated respondent continues as Peon
- 01.04.2026: Judgment delivered by Justice Amit Borkar
The Parties' Positions
Petitioners (Chetana Education Trust): Argued that respondent was always employed as a Peon under a temporary contract. No formal appointment as Library Attendant ever occurred. Mere participation in selection processes or performance of library duties does not create a legal entitlement to absorption in a reserved post.
Respondent (Ahok Hiraman Gaikwad): Contended that he performed duties of a Library Attendant for years, was eligible under reservation policy, and the Tribunal rightly considered actual work done over formal documentation.
Relief Sought
The petitioners sought quashing of the College Tribunal’s order dated 05.10.2012, and a declaration that respondent has no right to be absorbed as Library Attendant. They also sought confirmation that respondent continues in service as Peon, as admitted before the Court on 26.03.2013.
The Legal Issue
The central question was whether mere performance of duties in a reserved post, coupled with participation in a selection process, creates a legal right to absorption in the absence of a formal appointment order under the Maharashtra Universities Act, 1994.
Arguments Presented
For the Petitioner
The petitioners relied on the binding nature of the 2004 appointment order, which clearly defined the respondent’s designation as Peon. They argued that service rights cannot be inferred from de facto duties or participation in interviews. No statutory provision or contractual term permits absorption without a formal appointment. The Tribunal’s reliance on eligibility and work performed was legally unsustainable, particularly for reserved posts requiring strict procedural compliance.
For the Respondent
The respondent’s counsel contended that the Tribunal correctly applied the doctrine of substantive justice by looking beyond formalities. They argued that the respondent had been functioning as a Library Attendant for years, was eligible under reservation policy, and the management’s failure to issue a formal order should not deprive him of his rights.
The Court's Analysis
The Court examined the foundational principles of public employment law, emphasizing that service rights arise from either a statutory provision or a formal appointment order. The Court noted that while the respondent had worked in the library, there was no evidence of any order, resolution, or communication from the competent authority changing his designation.
"The foundation of any service claim lies either in an appointment order or in some statutory provision. In the present case neither is available to the respondent for the post of Library Attendant."
The Court rejected the argument that performance of duties equates to appointment, stating: "Duties may vary depending on requirement but designation and appointment require a formal act." It further held that participation in selection processes does not imply selection or appointment, and that eligibility alone cannot override the requirement of a lawful appointment.
The Tribunal’s order was found to be based on assumption rather than legal or factual evidence. The Court emphasized that absorption into a reserved post - especially one governed by constitutional and statutory reservation policies - demands clear, documented compliance with procedural safeguards. Without such documentation, the direction to absorb the respondent into a reserved post was arbitrary and legally invalid.
The Verdict
The writ petition was allowed. The College Tribunal’s order dated 05.10.2012 was set aside. The Court upheld the statement made by the petitioners on 26.03.2013, confirming that respondent No. 1 continues to serve as a Peon. No reinstatement as Library Attendant was ordered. No compensation, arrears, or back wages were awarded. The respondent’s service as Peon remains unaffected.
What This Means For Similar Cases
Formal Appointment Is Non-Negotiable
- Practitioners must insist on documentary proof of appointment before asserting service rights
- De facto duties, even if prolonged, cannot substitute for a formal order
- Institutions cannot be compelled to absorb employees into reserved posts without a lawful appointment
Participation ≠ Selection
- Merely applying for or appearing in interviews for reserved posts does not create a vested right
- Selection must be confirmed by an official order; eligibility alone is insufficient
- Tribunals and courts must not substitute their judgment for the absence of administrative action
Reserved Posts Require Strict Compliance
- Absorption into reserved posts triggers constitutional and statutory obligations
- Any direction to fill such posts must be grounded in clear legal authority
- Courts will not validate absorption orders based on equity or perceived fairness without statutory or contractual basis
