Ramesh
Gajendra Jadhav Vs. Secretary, Late S.G.S.P.Mandal & Ors. [2010] INSC 541
(22 July 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 7215 of
2008 Ramesh Gajendra Jadhav ...Appellant Versus Secretary, Late S.G.S.P. Mandal
& Ors. ...Respondents
Swatanter
Kumar, J.
1.
The services of Ramesh Gajendra Jadhav, the appellant herein, were
terminated by Principal of the respondent college on 18th August, 1999 who,
then filed an appeal before Shivaji University & College Tribunal, Pune,
University Campus under Section 59(1) of Maharashtra Universities Act, 1994. The
grievance of the appellant was that he had been appointed as a regular lecturer
of Geography in the said College and the oral termination was unjustified,
contrary to Rules and without any basis. On the contrary, the College as well
as University ought to have permitted him to continue as a regular lecturer in
the College. The Tribunal, vide its judgment dated 21 st July, 2004 found
substance in the case of the appellant and while accepting his appeal the order
of termination was quashed and set aside and he was ordered to be reinstated
w.e.f. 15th September 2000 with full back wages. The College 2 as well as the
Secretary of Sambhaji Rao Garad Shikshan Prasarak Mandal, Mohol, Solapur
District, filed a Writ Petition in the High Court of Judicature at Bombay being
Writ Petition No. 9935 of 2004, which the learned Single Judge, after hearing
the parties and vide a detailed judgment accepted the Writ Petition by setting
aside the order of the Tribunal and issuing certain directions. The High Court
held that the post of the lecturer in Geography was not meant for open category
candidates but was reserved for SC category alone. The Court also declined to
give advantage to the present appellant on account of any mistake of the
authorities concerned. Merely, because the appellant was selected, the Court
declined to accept the contention that the appellant had an indefeasible right
to the post. Resultantly, the Court sustained the order passed by the College
and the University authorities.
2.
Aggrieved by the judgment of the High Court dated 7 th December,
2006, the appellant filed an appeal before the Division Bench of the High Court
of Judicature at Bombay, which was also dismissed vide order dated 6th June,
2007. The Division Bench held as under:
"6.
The finding arrived at by the learned Single Judge was based on the record,
which clearly indicates that the post of lecturer in Geography was reserved for
S.C. candidate and not for the candidate from open category and, therefore, the
Single Judge held that the decision of the Tribunal was not justified while
allowing the appeal of the Management.
7. The
learned counsel for the appellant, submitted that for no fault of the
appellant, his services could not have been discontinued and the findings of
the School Tribunal are findings of fact, which cannot be held to be perverse
so as to call for interference in exercise of writ jurisdiction.
8. We
find that the view taken by the learned Single Judge is based on the correct
state of affairs which was ignored by the Tribunal, which based its findings on
the advertisement, pursuant to which the appellant was selected, however, the
said advertisement was not correct.
9. The
learned Single Judge has rightly observed that merely because the Authorities
have committed an error in the matter of the advertisement of the post and
though it was approved by the University, was also not correct and the
University, subsequently, rectified its error by canceling the approval of the
appellant.
The
appellant has no case. Therefore, we do not find any merit in the appeal. The
appeal is accordingly dismissed."
3.
Aggrieved by the reasoning and decision of the Division Bench, the
appellant filed the present appeal.
4.
The controversy in the present case falls in a very narrow campus:
Whether a mistake of fact rectified subsequently in relation to implementation
of roaster of reservation would be a sufficient reason for terminating the
services of a person appointed under that mistaken impression? To answer this
question, we need to notice the facts which have given rise to the present
appeal.
5.
The college in question was established in the year 1991. The
Joint Director of Higher Education, Kohlapur Division had sent a letter
approving the schedule of 4 appointment of lecturer wherein one additional post
of part time lecturer was sanctioned vide letter dated 6th October, 1998. On
the basis of this letter, the College had written to the University on 5th
December,1998 seeking its approval for the draft advertisement to be published
for filling up the vacancy including the post of lecturer of Geography.
However, in the letter issued by the University granting approval to the post
of lecturer for the subject of Geography was shown as part time in open
category. On that basis, advertisement was issued, which appeared in the
newspaper, for filling up the vacant posts. On 24th December, 1998, the college
sent a letter to the University forwarding the copies of the advertisement and
requesting for names of the persons to be appointed by Selection Committee. The
University granted approval to the schedule of posts as proposed by the
management but in the letter dated 1st January,1999 approval was shown to be
granted for the post of lecturer for the subject of Geography as full time
lecturer. After receiving this letter, the management of the college again
wrote to the University bringing out this fact that there was a vacancy of part
time lecturer in Geography, while the University granted approval to full time
lecturer in that subject leading to some confusion. In the meanwhile, pursuant
to the advertisement issued, candidates including the appellant had applied for
the post and interviews were held on 22nd February, 1999. On 23rd February,
1999, the Selection Committee prepared its detailed 5 proceedings clearly
demonstrating that the post for which the appellant was selected was a
permanent post in open category.
On the
recommendation of the Selection Committee, the appellant was appointed as
lecturer in the subject of Geography on probation vide letter of appointment
dated 3rd March, 1999. The appellant joined the post. However, the University
on 15th March, 1999, sent a letter stating therein that earlier advertisement
was to be cancelled and new advertisement showing the post of lecturer in
Geography as full time and reserved for SC category, is required to be issued.
In fact, at that point of time, the University also asked the College as to how
the advertisement for appointment of part time lecturer was issued as the post
was full time and reserved for SC category. Vide their letter dated 12 th July,
1999, the College sent a detailed reply giving reference to all the events in
response to which, the University, vide letter dated 18.8.1999 stated that
those appointed on the post including the appellant must be treated as full
time lecturer but only for the academic year 1999-2000 and in the meanwhile
steps should be taken to fill up the vacancy keeping in view the direction that
the post was reserved for SC category and it was a full time post of lecturer
in Geography. The appellant had made a request in the meanwhile, submitting
that he had been selected by a properly constituted Selection Committee and he
should be given the appointment against a full time lecturer post. No response
to the same was 6 received. The appellant filed a Writ Petition No. 1689/2000
praying for quashing and setting aside the letter dated 18th August,1999 issued
by the University giving approval only for the academic year 1999-2000. This
Writ Petition, when came up for hearing before the High Court, was dismissed
vide order dated 22nd August, 2000. In furtherance to the advertisement, which
appeared in the newspaper on 1st January 2001, amongst other persons Respondent
No. 5 also submitted his application.
Respondent
No.5 belonged to a reserved category (SC), was selected and appointed as
lecturer in Geography in the respondent college. Approval thereto was granted
by the University on 2nd February, 2001. Thereafter, the appellant was not
permitted to serve which resulted in filing of the appeal before the Tribunal,
as already noticed.
6.
There is no dispute before us that the post in question was full
time post and was reserved for SC. Once this fact is not disputed, the only
question that remains is whether an indefeasible right was vested in the
appellant by his selection against the advertisement issued earlier by the
College. The learned Single Judge of the Bombay High Court while setting aside
the order of Tribunal held as under:
"20.
It is then sought to be contended that no fault can be found with the
respondent no. 1 who had bonafide believed in the advertisement issued by the
petitioners on 11th December, 1998 and had applied for the post and on being
interviewed, was issued the order of the appointment and even the initial
appointment disclosed that his appointment was on probation for two years which
disclosed that the 7 appointment was in permanent vacancy. Undoubtedly, there
was a mistake on the part of the petitioners in that regard which was
immediately brought to the notice by the respondent No. 4.
21
Question then arises whether on account of mistake of the petitioners, can the
respondent no. 1 be penalized? It is well settled law that in case of entry in
service it has to be a lawful entry. Any irregularity in that respect cannot
create any vested right in favour of the employee illegally appointed,
irrespective of the fact whether the fault in that regard lies with the
employee or the employer. Otherwise, under the pretext of fault on the part of
the employer, every employee seeking back door entry may illegally seek to
regularize such entry in the service. Being so, merely because there was a
fault on the part of the petitioners in following the procedure, on that count
the respondent no. 1's services cannot be regularized.
That will
not ensure to benefit of the respondent no. 1 to content that he cannot be
penalized for the fault on the part of the petitioners in not following the
proper procedure while filling up the vacancy in relation to the post of Lecturer
in the subject of Geography. In fact, it is not a matter of penalizing the
respondent no. 1; rather the respondent no. 1 cannot seek to regularize an
illegal act to have benefit on the pretext that the fault lies with the
petitioner in not following the regular procedure. The respondent no. 1 is to
be absolutely blamed for illegally availing the benefit of such acts on the
part of the petitioner."
7.
There can be no doubt that a post is determined to be a part time
or full time depending on the work load in a particular college. The
University, vide its letter dated 5th December, 1998, had referred to the
requirements which a college ought to satisfy. In response thereto, the College
had completed the requirement and had clearly stated that in Geography, there
was one vacancy of part time lecturer which was for open category. This had
been approved by the University, but subsequently it was noticed that the 8
University by mistake had granted approval for full time lecturer in English
and Geography, while the advertisement had indicated the vacancy of a part time
lecturer in Geography.
It is
expected and desirable of the Authorities concerned to have corrected the
mistake at that juncture itself. However, because of inter se correspondence
between the University, College and the Director of Education, the matter got
delayed and in the meanwhile the Selection Committee, on the basis of the
approval letter issued by the University, selected the appellant as full time
lecturer to the post vide letter dated 3rd March, 1999. The University had
informed the College that as per the roaster, the full time regular vacancy of
the College has to be given to SC category candidate and, therefore, earlier
advertisement should be cancelled and fresh advertisement should be issued. It
is a settled principle of law that a vacancy which has been reserved for SC
category cannot be converted to an open category unless and only if specified
and that too only if the rules permit. Nothing of this kind has been placed on
record and in fact no submission in that behalf has been made by any of the
parties before us.
Once the
post was reserved for SC category, the Authorities could only fill up the said
post by a reserved category candidate. No advertisement for reserve candidate
had been issued earlier, as such, none would have applied for the same being a
post for open category and this mistake vitiated the entire selection process.
As already noticed, fresh 9 advertisement was issued and Respondent No. 5 was
appointed to the said post, resulting in termination of services of the present
appellant. Of course, to some extent, this mistake was ought to be corrected at
least partially by University by giving the approval to the full time post for
one academic year 1999-2000 in favour of the appellant. No doubt, appellant has
been subjected to some inconvenience and prejudice and his remedy for damages
or any other relief, as he may deem fit and proper, are open to be taken but
this is not a case where interference of this Court is called for under Article
136 of the Constitution. We must notice that in the needs of employments,
particularly, in the Institutions which are aided and are under the control of
the State or statutory bodies, adherence to the concept of equality and
avoidance of discrimination is an essential feature. In other words, the
respondents were expected to act in consonance with the constitutional mandate
contained under Articles 14 and 16 of the Constitution of India. We find that
the Selection Committee was at fault in selecting the candidate as full time
lecturer, while admittedly the advertisement had been given for a post of part
time lecturer in Geography. It is a matter of common knowledge that the
eligible candidates, if knew, that the post was that of `full time lecturer in
Geography' would have applied in larger number and even with better
qualifications. In other words, number of candidates have been denied an
opportunity of 10 competing for this post. It would add arbitrariness or
unfairness to the entire process of selection. The appointment of the
appellant, even if otherwise, in accordance with procedure would stand vitiated
on this ground alone. It is a matter of concern that the post which was
advertised as part time was treated as full time, that too under the general
category only on the pretext that the University had written a letter that the
post of Geography lecturer was full time while completely ignoring the stand of
the College when it had sought clarification from the University to remove the
confusion created by this stand. Thus, it was not a case where post of full
time lecturer in Geography in general category was available. It was neither
desirable nor fair for all the Authorities concerned to make this appointment
in the manner in which it has been done, even if the Selection Committee had
recorded it minutes to that effect. Viewed from this angle as well, we do not
think it was a case, where we can find any error in the judgment of the High
Court.
8.
Another factor, which has to be considered by the Court, is that
in the Writ Petition No. 1689 of 2000 filed by the appellant, which was
dismissed by the High Court, he could have raised these issues in that Writ
Petition but the point of resjudicata/constructive resjudicata had not been
decided against the appellant by the learned Single Judge. The appellant could
have challenged the order of High Court and even raised the issue with regard
to reservation or his deemed 11 regular appointment as full time lecturer in
Geography in that writ petition itself. However, the advertisement was issued
for filling up the reserve vacancy on 1st January, 2001.
Therefore,
we cannot find fault with the appellant to the extent that appeal filed by him
could be dismissed on that ground. Be that as it may, a detailed discussion on
this subject would be uncalled for in the facts and circumstances of the
present case. The fact of the matter remains that there was a collective error
on the part of the University and College and more on the part of the
University that led to this situation. But this mistake cannot vest
indefeasible legal right in the appellant to be appointed or deemed to have
been appointed against a reserve category while he is a candidate, admittedly,
belonging to the open category and was so appointed by the Selection Committee.
9.
For these reasons, we find no merit in the appeal and the same is
dismissed. Parties are left to bear their own costs.
..................J. [ DR. B.S. CHAUHAN ]
.................J. [ SWATANTER KUMAR ]
New Delhi
July 22, 2010.
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