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Thursday, April 11, 2013

SERVICE MATTER = where the respondent allegedly worked in the College as part- time Lecturer without any appointment letter and without any selection process. Since the Society never issued any letter of appointment a letter of termination was also not served upon the respondent. As stated above, in the absence of any appointment letter, issued in favour of the respondent as he was temporary/part-time lecturer in the College, there cannot be any legitimate expectation for his continuing in the service.. This was the reason that when in the years 1995 and 1996, two persons were appointed one after the other on the post of Lecturer in History, the respondent did not challenge the said appointments. Even assuming that the respondent was permitted to work in the College as part-time lecturer for some period, the action of the management of the college asking him to stop doing work cannot be held to be punitive. The termination simplicitor is not per se illegal and is not violative of principles of natural justice. 26. After giving our anxious consideration in the matter and analyzing the entire facts of the case, we are of the view that the impugned order passed by the Education Appellate Tribunal and the High Court cannot be sustained in law and are liable to be set aside.


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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2948 OF 2013
(Arising out of the Special Leave Petition (C) No.27031 of 2011)
B.T. Krishnamurthy …. Appellant (s)
Versus
Sri Basaveswara Education Society & Ors. ….Respondent (s)
WITH
CIVIL APPEAL NO. 2949 OF 2013
(Arising out of Special Leave Petition( C) No.27130 of 2011)
Sri Basaveswara Education Society & Anr. …. Appellant (s)
Versus
T.D. Viswanath & Ors. ….Respondent(s)
J U D G M E N T
M.Y.EQBAL,J.
Leave granted.
2. Since these two appeals arose out of the common
judgment and order dated 11.07.2011 passed in Writ Appeal Nos.
1812 of 2006 and 1865 of 2006, the same have been heard and
disposed of by this common judgment.Page 2
3. By the impugned judgment and order, a Division Bench of
the Karnataka High Court dismissed the appeals and affirmed the
order dated 20 0f 2006 passed by a learned Single Judge in Writ
Petition Nos. 52603 of 2003 and 54201 of 2003 and the order dated
03.12.2002 passed by the Education Appellate Tribunal in EAT No.16
of 1996.
4. The facts of the case lie in a narrow compass:-
5. Respondent No.1 T.D. Viswanath, in Civil Appeal arising
out SLP(C) No. 27130 of 2011 (in short respondent no.1) alleged to
have been appointed as a Lecturer in Sri Basaveswara Junior College
(in short, ‘the college’) run by Sri Basaveswara Education Society (in
short, ‘the Society’). According to the said respondent No.1, since the
date of appointment i.e. 28.06.1990 he continuously worked as a
Lecturer in the College run by the Society. It was alleged that all of a
sudden on 22.07.1995 the Society/College issued oral directions
directing respondent No.1 not to attend the College and take classes
on the ground that his services have been terminated.
6. It appears that on 19.06.1995, the Society issued an
advertisement in the newspaper inviting applications for appointment
on the post of Lecturer in History in the said College. Pursuant to the
2Page 3
said advertisement, respondent No.1 applied for the said post and
was called for interview, but he was not selected and in his place one
T.S. Malleshappa was selected for the said post. The said T.S.
Malleshappa joined the said post of Lecturer, but within a year he left
the service and joined M.Phil Course. Subsequently, the Society
issued another advertisement dated 03.05.1996 inviting applications
from eligible candidates for the post of Lecturer (History). Again after
interview, one R. Siddegora was appointed as a Lecturer (History) for
a period of two years. In the meantime, respondent No.1 filed a writ
petition being No. 31770 of 1995 before the Karnataka High Court
seeking a mandamus directing the Society of the College to reinstate
him in service with all consequential benefits and further direction was
sought not to make any appointment in his place. The said writ petition
was dismissed on 29.10.1996 by the High Court on the ground of
alternative remedy of appeal available before the Education Appellate
Tribunal (in short, the ‘Tribunal’).
7. Respondent No.1 thereafter filed an appeal before the
Tribunal challenging his termination/removal from the post of
Lecturer. Along with the said appeal, an application for condonation of
delay was also filed. Pending appeal, the Tribunal passed interim
3Page 4
order dated 17.12.1996, restraining the Society and the Principal of
the College from appointing any person to the post of Lecturer.
8. In the year 1998, Director of Pre-University Education
Board by communication dated 24.08.1998 asked the Society to fill up
the remaining three posts from reserved category in order to obtain
the approval for the teaching staff. Consequently, posts were
advertised and one B.T. Krishnamurthy, who is appellant in Civil
Appeal arising out of the Special Leave Petition No. 27031 of 2011
was appointed as Lecturer.
9. However, the Tribunal by order dated 03.12.2002, allowed
the appeal filed by respondent No.1 and directed the Society to
reinstate respondent No.1 in service w.e.f. 23.07.1995 and to pay him
all pecuniary benefits w.e.f. 23.07.1995. The Tribunal further directed
the Society to regularize the services of respondent No1. The Tribunal
further declared the appointment of B.T. Krishnamurthy as illegal and
improper.
10. Aggrieved by the aforesaid order of the Tribunal, the
appellants herein - the Society and B.T. Krishnamurthy filed separate
writ petitions challenging the order passed by the Tribunal. The High
Court dismissed the writ petitions by judgment and order dated
20.09.2006 and refused to interfere with the order passed by the
4Page 5
Tribunal. The Society and B.T. Krishnamurthy then preferred intracourt appeals before the Division Bench of the High Court which were
heard and dismissed in terms of the impugned judgment and order
dated 11.07.2011. Hence, these appeals.
11. The case of respondent No.1, T.D. Viswanath before the
Tribunal was that he was appointed to the post of Lecturer in History
on 28.06.1990 against a clear vacancy available in the College. From
the date of appointment, he was assigned the work for development of
literacy and other curriculum. It was alleged that during the year 1995
when the institution was admitted for grant-in-aid by the Government
he was working in the same institution. However on 22.07.1995,
without any previous notice, the appellant-institution called upon him
and directed not to come for duty in future.
12. Respondent No.1 first filed a writ petition before the
Karnataka High Court, but the same was dismissed with liberty to him
to approach the competent forum i.e. Education Appellate Tribunal.
Accordingly, respondent No.1 approached the Tribunal and prayed for
regularization of his services.
13. The case of the appellant-institution was that the institution
had not issued any appointment order either permanently or
temporarily appointing him to work in the institution. As a matter of
5Page 6
fact, respondent No.1 was allowed to serve the institution temporarily
on the post of Lecturer purely on ad hoc basic. For the first time in the
year 1995, several posts of Lecturers in the College were advertised.
Pursuant to that, respondent No.1 T.D. Viswanath also applied for the
post of Lecturer in History on 22.06.1995, but he was not selected for
the said post,. Consequently, a writ petition was filed before the High
Court and thereafter an appeal before the Tribunal seeking
regularisation of his services.
14. The Tribunal proceeded on the basis of some entries
made in different registers of the College and the certificate dated
27.04.1991 allegedly issued by the Principal of the College certifying
that the respondent T.D.Viswanath worked as part-time Lecturer in the
institution from July 1990 to March 1991. The Tribunal also noticed
the certificate said to have been issued on 22.07.1995 certifying that
T.D. Viswanath was working as Lecturer in History in the College on
part time temporary basis. In the prospectus of the College for the
years 1992-93 and 1993-94 the name of respondent finds place as a
Lecturer. The Tribunal further noticed the relevant provisions of the
Education Act and finally came to the conclusion that the respondent
was serving the College as temporary part-time Lecturer which is
evident from the attendance register maintained by the College. The
6Page 7
Tribunal, therefore, held that even presuming that the respondent was
a temporary employee he was to be removed from service by passing
appropriate orders and that by reason of the passage of time the
respondent acquired right for regularization in service. The Tribunal
further held that respondent No.1 was in service till 22.07.1995 on
which date he was asked not to come to College again. In that view of
the matter, the respondent was entitled to reinstatement
retrospectively from that date. Finally, the Tribunal held that
B.T.Krishnamurthy cannot be allowed to occupy the vacancy and
inasmuch as his appointment was illegal and it is for the management
to absorb him in any other subject. According to the Tribunal, the
appointment of B.T.Krishnamurthy has to be held as illegal and
improper. On these findings, the Tribunal passed the following order:
“The appeal filed by the appellant stands
allowed. The respondent No.1 and 3 are directed to
reinstate the appellant in service from 23.7.1995. The
appellant will be entitled to all service and pecuniary
benefits attached to service. However, the
management shall pay to him retrospectively from
23.7.1995 salary in the scale of pay that was being
paid to him and his services shall be regularized and
he shall be paid salary at the Government scale of
pay admissible to the employee of that cadre.
In view of this order, the appointment of Shri
B.T.Krishnamurthy is held to be illegal and improper
and therefore the management i.e. respondents 1 and
3 are required to take consequential action to comply
with this order.
7Page 8
However, it is observed that in case
B.T.Krishnamurthy could be absorbed as a lecturer in
any other subject in the institution. The management
shall explore all opportunity to continue his
employment.
As the consequence of this order as services
of Shri B.T.Krishnamurthy will stand terminated
therefore I feel it is appropriate to grant two months
time to the management to do the needful.
In the circumstances, there is no order to
costs.
Pronounced in open Court by dictating to the
judgment-writer on this 3rd day of December 2002,
then transcribed, computerized and print out taken by
him, and after correction, signed by me.”
15. The aforesaid order and award of the Tribunal was
challenged by both the appellants herein namely, the Society and B.T.
Krishnamurthy before the High Court. The learned Single Judge
without analyzing the finding recorded by the Tribunal dismissed both
the writ petitions on 20.09.2006. Para 8 and 9 of the order passed by
the learned single Judge is as under:
“The tribunal, having arrived at findings of fact
on an elaborate consideration of the pleadings
and material placed before it, it cannot be said
that it has committed an error which would
warrant interference by this Court in its writ
jurisdiction. I do not find any ground for
interference and though an argument is
canvassed as regards the appeal having been
entertained without condoning the delay in the
first instance, neither of the petitioners have
sought to raise any such ground in the petitions
and hence, it would not warrant consideration. In
any event, the tribunal having proceeded to
8Page 9
pass an award after taking into consideration
that the question of limitation was kept open and
having rendered a positive order in favour of the
respondent No.4, it is to be deemed that the
delay in filing the appeal was condoned.
Accordingly, I do not find any ground for
interference. The petitions in W.P.No.
52603/2003 as well as W.P. No. 54201/2003
are hereby dismissed.”
16. Both the appellants preferred intra-court appeals before
the Division Bench of the High Court against the order passed by the
learned Single Judge dismissing the writ petitions. The Division
Bench also proceeded on the basis that respondent no.1 worked as a
History Lecturer from 28.06.1990 to 22.07.1995 pursuant to the
Notification dated 26.05.1990. However, in the said notification
nothing was mentioned that the appointment is made for the post of
History Lecturer on part-time basis or temporary arrangement. The
Division Bench also considered the fact that the State Government by
its Notification dated 21.04.1995 had made it clear that the reservation
policy of the State Government regarding appointment of teaching and
non-teaching employees was to be left undisturbed. The Division
Bench, however, not disputed the fact that neither appointment order
nor termination letter was issued in the case of the respondent no.1.
There was also no evidence to show that the appointment of
respondent no.1 was temporary or on part-time. On the basis of those
9Page 10
facts, the Division Bench refused to interfere with the order passed by
the learned Single Judge.
17. We have heard Mr. P. Viswanatha Shetty and Mr. P.S.
Patwalia, learned senior advocates appearing for the appellants and
also Mr. S.N. Bhat, learned Advocate appearing for the respondents.
18. Mr. P. Viswanatha Shetty learned senior counsel at the
very outset submitted that appellant B.T.Krishnamurthy was appointed
on reserved category and it has nothing to do with the other
appointments made by the Society. Learned counsel submitted that
the Tribunal has committed serious error of law in setting aside the
appointment of the appellant. Learned counsel further submitted that
respondent No.1 T.D. Viswanath has failed to prove that he was
regularly appointed in 1990 on the post of Lecturer in History. He did
not even examine himself before the Tribunal. Learned counsel
further submitted that the respondent No.1 has even not challenged
the appointments of Malleshappa and Siddegora made in the year
1995-1996. Nothing has been produced by respondent No.1 to show
that he was appointed either permanently or temporarily on the post of
Lecturer in the said college. In the absence of any such document,
the Tribunal and also the High Court have committed serious illegality
in directing reinstatement of respondent No.1 in service.
10Page 11
19. Mr. P.S. Patwalia, learned Senior Advocate appearing for
the Society and the College, apart from the aforesaid submissions
made by Mr. Shetty, submitted that in the year 1995 pursuant to the
advertisements issued by the College for appointment of Lecturer,
respondent No.1 participated in the selection process, but he was not
found suitable for the said post and was not selected. The said
selection was not challenged by respondent no.1. On the contrary, he
approached the Tribunal after one and half years. Learned counsel
submitted that both the Tribunal and the High Court have not correctly
appreciated the facts of the case and the law applicable thereto.
20. Mr. S.N. Bhat, learned advocate appearing for respondent
no.1 T.D. Viswanath on the other hand, submitted that the findings
recorded by the Tribunal are based on various documents and entries
made in different registers maintained by the College and, therefore,
the findings cannot be held to be perverse or without any basis.
Learned counsel submitted that the Tribunal also noticed the
interpolation made in various registers of the College to make out a
case that the said respondent was not continuously working in the said
College.
11Page 12
21. We have carefully considered the submissions made by
the learned counsel appearing on either side.
22. Indisputably, the respondent T.D. Viswanath, alleged to
have worked on the post of Lecturer in History in the year 1990 and
continued as such for a few years, but before his appointment neither
the post was advertised nor any selection process was followed. No
appointment letter was issued by the Society appointing him either
permanently or temporarily in the said post. It is also not in dispute
T.D. Vishwanath did not receive any letter of termination or relieving
order from the Society. According to him, the Society orally directed
him not to continue in the College.
23. It is also not in dispute that on 19.06.1995, the Society
issued advertisement in the newspaper for appointment on the post of
Lecturer in History and pursuant to that respondent No.1 along with
other candidates participated in the interview conducted by the
College. After the selection process and interview, respondent No.1
was not selected rather one T.S. Malleshappa was selected for the
said post. The said Malleshappa joined and continued for about a
year and thereafter he left service and joined M.Phil Course.
12Page 13
Thereafter, the Society issued another advertisement dated
03.05.1996 inviting applications from eligible candidates for the post of
lecturer and one R. Siddegora was appointed as Lecturer in History on
probation for a period of two years. Curiously enough, respondent
No.1 did not challenge the selection and appointment of the abovenamed two candidates, Malleshappa and Siddegora. Instead a writ
petition was filed by the respondent No.1 seeking regularization of his
services on the post of Lecturer in History with all consequential
benefits. The respondent No.1 ultimately approached the Tribunal.
As noticed above, the Tribunal on the basis of some entries made in
the registers maintained by the College passed the impugned order for
regularization of the services with all monetary benefits. It is worth to
mention here that the Tribunal although came to the conclusion that
the certificate produced by respondent No.1 goes to show that he was
in the College as temporary and part-time employee even then the
Tribunal held that due to passage of time the Court will be justified in
directing the College/Society to regularize his services. The Tribunal
although directed regularization as mentioned hereinabove but in the
subsequent paragraph the Tribunal further directed reinstatement of
the respondent in service. Para 43 of the order passed by the
Tribunal is quoted herein below:-
13Page 14
“The other aspect is that the appellant is out of
service. The date of his retrenchment is shown
as 22.7.1995, by the appellant, whereas the
management disputes that aspect. On the basis
of the material discussed above, I am constrained
to hold that the appellant was in service till
22.7.1995, on which date he was asked not to
come to the college again. Thus that become the
material date for decision about his
reinstatement. The appellant will be entitled to
reinstatement retrospectively from that date and
as it is shown that such a situation was created
due to acts of the management, the management
cannot absolve itself from discharging its
consequential liabilities. The consequential
liabilities to pay are loss of pay to the appellant
from that date. Thus, the appellant would also be
entitled to reinstatement in service as a lecturer in
history from 23.7.1995 and he will also be entitled
to emoluments, which he was entitled to receive.”
24. In our considered opinion, the Tribunal completely
misdirected itself in passing such an order of regularisation and
reinstatement in a case where the respondent allegedly worked in the
College as part- time Lecturer without any appointment letter and
without any selection process. Since the Society never issued any
letter of appointment a letter of termination was also not served upon
the respondent.
25. As stated above, in the absence of any appointment letter,
issued in favour of the respondent as he was temporary/part-time
14Page 15
lecturer in the College, there cannot be any legitimate expectation for
his continuing in the service.. This was the reason that when in the
years 1995 and 1996, two persons were appointed one after the other
on the post of Lecturer in History, the respondent did not challenge the
said appointments. Even assuming that the respondent was permitted
to work in the College as part-time lecturer for some period, the action
of the management of the college asking him to stop doing work
cannot be held to be punitive. The termination simplicitor is not per se
illegal and is not violative of principles of natural justice.
26. After giving our anxious consideration in the matter and
analyzing the entire facts of the case, we are of the view that the
impugned order passed by the Education Appellate Tribunal and the
High Court cannot be sustained in law and are liable to be set aside.
27. For the reasons aforesaid, these appeals are allowed and
the impugned orders are set aside.
……………………………………J.
(Surinder Singh Nijjar)
……………………………………J.
(M.Y. Eqbal)
New Delhi
April 8, 2013
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