Full Judgment Text
2023INSC775
NonReportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.54835484 OF 2023
(Arising out of Special Leave Petition (C) Nos.67646765 of 2018)
Vijaya Bhiku Kadam … Appellant
versus
Mayani Bhag Shikshan Prasarak
Mandal & Ors. … Respondents
J U D G M E N T
ABHAY S. OKA, J.
1. Leave granted.
FACTUAL ASPECTS
The issue concerns the employment of the appellant, a
2.
lecturer, with the second respondent–College which is
affiliated to the fourth respondent–Shivaji University,
Kolhapur, Maharashtra.
3. The appellant has done M.A. in English and by the year
Signature Not Verified
Digitally signed by
Anita Malhotra
Date: 2023.08.28
17:56:56 IST
Reason:
1992, she had acquired the qualification of PhD. The second
respondent–College was established in the Academic Year
SLP (C) Nos.67646765 of 2018 Page 1 of 15
19911992. On an application made by the appellant, by the
th
order dated 15 September 1992, the second respondent
College appointed the appellant as a parttime lecturer in
English for the Academic Year 19921993. The first
respondentSociety runs the second respondentCollege. The
fourth respondent–University approved the said appointment.
th
On 5 July 1993, an advertisement (the first
4.
advertisement) was published by the first respondent for
inviting applications to the posts of fulltime lecturer. In the
said advertisement, two posts were advertised. One was in
the open category and the other one was against the
Scheduled Caste category. The appellant and the fifth
respondent applied for the said posts along with another
candidate, namely, Ms S.D. Patil. The University Selection
Committee recommended the aforesaid three candidates. The
name of Ms S.D. Patil was first in the order of merit, the fifth
respondent was the second one and the appellant was the
third one. Though the fifth respondent did not belong to the
th
Scheduled Caste category, on 26 August 1993, the first
respondent appointed her against the post reserved for the
Scheduled Caste category for a period of one year. Ms S.D.
Patil, the candidate at serial no.1 in the order of merit, did not
join the employment and therefore, by the appointment order
th
dated 8 September 1993, the appellant was appointed to the
post of lecturer in English for one academic year on a full
time basis.
SLP (C) Nos.67646765 of 2018 Page 2 of 15
5. The fourth respondent–University approved the
appointment of Ms S.D. Patil as a fulltime lecturer in the
open category. The fourth respondent–University approved
the appointment of the fifth respondent for a period of one
academic year against the post reserved for the Scheduled
Caste category. The approval was given subject to a condition
that during the period of probation, the candidates must clear
the NET Examination. Noticing the mistake in the approval
granted by the fourth respondent–University, the second
th
respondent–College wrote a letter on 28 January 1994 to the
fourth respondent–University requesting to grant approval to
the appointment of the appellant in the open category as Ms
S.D. Patil did not join. The fourth respondent–University, by
th
the letter dated 4 March 1994, did not accept the said
request as the appellant was not possessing NET
qualification. At that time, both the appellant and the fifth
respondent were not possessing NET qualification.
th
6. On 8 September 1994, the second respondent–College
again advertised (the second advertisement) the two posts.
The advertisement recorded that the requirement of NET
qualification was exempted to those candidates who have
st
been awarded a PhD degree before 31 December 1993. Both
the appellant and the fifth respondent applied for that post.
However, the fifth respondent was not possessing the
qualification of a PhD. She had appeared for the M.Phil
degree examination. The University Selection Committee
recommended the names of the appellant and the fifth
SLP (C) Nos.67646765 of 2018 Page 3 of 15
respondent. As per the order of merit, the appellant was
above the fifth respondent. The Selection Committee
recommended the appellant for appointment to the open
category post. The fifth respondent was recommended for the
post reserved against the Scheduled Caste category. The
fourth respondent–University approved the appointment of
the appellant on the open post and granted approval to the
appointment of the fifth respondent on the post reserved for
the Scheduled Caste category.
The third advertisement was published by the first
7.
th
respondent–College on 7 August 1995 wherein, only the post
of lecturer reserved for the Scheduled Caste category was
advertised. Pursuant to the said advertisement, the fifth
respondent applied for the said post. The Selection
Committee recommended the fifth respondent against the
rd
said post. By the letter dated 3 January 1996, the fourth
respondent–University approved the appointment of the fifth
respondent against the reserved post for a period of one
academic year. Accordingly, a letter of appointment dated
th
20 June 1996 was issued to the fifth respondent informing
her that her appointment will come to an end after the
Selection Committee selects a Scheduled Caste candidate.
th
The fourth advertisement was issued on 17 June 1996 for
the same post reserved for Scheduled Caste. The fifth
th
respondent again applied for the post. On 28 October 1996,
the second respondent–College terminated the appointment of
the fifth respondent from the end of the term. Being
SLP (C) Nos.67646765 of 2018 Page 4 of 15
aggrieved by the termination, the fifth respondent preferred
an appeal before the University and College Tribunal, Pune
(for short, ‘the Tribunal’) in which the appellant was not made
a party. The Tribunal granted a stay to the order of her
termination. During the pendency of the said appeal, the first
respondent–College again passed an order of termination
th
dated 20 April 1997 against the fifth respondent on the
ground that the Commerce Section in the College was closed
down. Therefore, another appeal was preferred by the fifth
th
respondent before the Tribunal. By the order dated 5
February 1998, the Tribunal allowed the appeal and directed
reinstatement of the fifth respondent to her original post. The
first respondent–College filed a writ petition for challenging
the said order, in which the appellant applied for
impleadment. However, the High Court rejected the said
application.
th
8. On 6 May 1998, in the writ petition filed by the College,
an interim order was passed by the High Court directing the
College to continue the fifth respondent as a lecturer.
th
Therefore, by the letter dated 5 January 1999, the College
addressed a letter to the fourth respondent–University, in
which it was stated that due to the interim order in favour of
the fifth respondent, there will be three fulltime lecturers of
English for which, there was no approval. Thereafter, the
College requested the fourth respondent–University to grant
approval to continue the appellant as a halftime or parttime
teacher. As the approval was for two and a half posts of full
SLP (C) Nos.67646765 of 2018 Page 5 of 15
time lecturers in English, the fourth respondent–University
did not accede to the said request. Therefore, by the letter
th
dated 29 March 2000, the first respondent–College informed
the appellant that for the next academic year, she will work
for a halftime workload and on half pay. In the meanwhile,
the appellant filed a writ petition in the High Court for
th
challenging the order dated 5 February 1998 by which the
fifth respondent was ordered to be reinstated. During the
pendency of the said writ petition filed by the appellant, in the
writ petition filed by the College, there was a compromise
between the College and the fifth respondent and therefore,
the writ petition earlier filed by the College was disposed of as
th
infructuous. On 5 September 2014, the High Court in the
th
writ petition filed by the appellant set aside the order dated 5
February 1998 of the Tribunal and remanded the appeal for
fresh consideration. In the meanwhile, by the communication
th
dated 29 March 2000, the College informed the appellant
that her seniority will be below the seniority of the fifth
respondent. The appellant preferred an appeal against the
said decision before the Tribunal. The restored appeal along
with the appeal preferred by the appellant were heard and by
st
the common judgment and order dated 21 December 2015,
the appeal preferred by the appellant was dismissed and the
appeals preferred by the fifth respondent were allowed.
Being aggrieved by the said common judgment, the
9.
appellant filed two writ petitions before the High Court of
Judicature at Bombay. By the impugned judgment and order
SLP (C) Nos.67646765 of 2018 Page 6 of 15
th
dated 25 July 2017, the learned Single Judge of the High
Court dismissed both the writ petitions. Being aggrieved by
the said judgment, the present appeals have been preferred
th
by the appellant in which on 12 March 2018, while issuing
notice, the status quo was ordered to be maintained. As a
result of which, the appellant continued in parttime/half
time service.
SUBMISSIONS
10. The submission of the learned senior counsel appearing
for the appellant is that the appellant was appointed on the
basis of the first advertisement. Even on the basis of the
second advertisement, the appellant was selected. In both
processes, the appellant was selected against the open
th
category post. That is how, on 26 October 1994, the first
respondent–College issued the letter of appointment
appointing the appellant in open category to which the fifth
respondent did not raise any objection. On the contrary,
pursuant to the third and fourth advertisements, the fifth
respondent applied for the post which was reserved for the
Scheduled Caste category. The submission of the learned
senior counsel is that after the fifth respondent accepted the
appointment of the appellant against open category, it was too
late in the day for her to approach the Tribunal and contend
that she was above the appellant in the order of merit in the
process conducted on the basis of the first advertisement.
His submission is that the appellant was a regularly
SLP (C) Nos.67646765 of 2018 Page 7 of 15
appointed candidate and therefore, her appointment on a full
time basis cannot be disturbed.
The submission of the learned counsel appearing for the
11.
fifth respondent is that pursuant to the first advertisement
when the selection process was conducted, the fifth
respondent was shown above the appellant in the order of
merit. Therefore, the fifth respondent ought to have been
appointed against the open category post and the appellant
on a temporary basis against the post reserved for the
Scheduled Caste category. As far as the first and second
respondents are concerned, their stand is that they have
abided by the orders of the High Court and the Tribunal. The
learned counsel appearing for the fourth respondent justified
the action of granting approval to the fifth respondent against
the open category post. The submission of the learned
Standing Counsel for the State Government is that the
additional burden of payment of salary cannot be put on the
State Government by directing the appointment of the
appellant against the fulltime post.
CONSIDERATION OF SUBMISSIONS
th
12. Pursuant to the first advertisement published on 5
July 1993, both the appellant and the fifth respondent had
applied for selection to two posts of lecturers in English.
th
Pursuant to the said process, on 8 September 1993, the
appellant was appointed by the first respondent–College as
lecturer in English against the open post. In the said letter of
SLP (C) Nos.67646765 of 2018 Page 8 of 15
appointment, it was mentioned that it was on a temporary
basis till the appellant passed the NET Examination during
the Academic Year 19931994, during the probation period.
th
What is important here is that by the letter dated 20
January 1994, the fourth respondent–University approved the
appointment of Ms S.D. Patil against the open post of
lecturer. As noted earlier, Ms S.D. Patil had participated in
the process on the basis of the first advertisement but she
was not interested in getting employment. Under the same
letter, the appointment of the fifth respondent was made for
one academic year against the post reserved for the
Scheduled Caste category. Thereafter, the College
Administration wrote to the fourth respondent–University
stating that Ms S.D. Patil had not joined and therefore, they
requested for grant of approval to the appointment of the
appellant. The fifth respondent never made any protest about
her appointment against the post reserved for the Scheduled
Caste category. In fact, pursuant to the second advertisement
th
dated 8 September 1994, the fifth respondent again applied.
Even the appellant applied. As per the advertisement, as the
appellant was a PhD, the requirement of NET qualification
was relaxed. It is pertinent to note here that the fifth
respondent did not challenge the process that commenced on
the basis of the second advertisement on the ground that
against the first advertisement, she was entitled to the
appointment to the open post. On the basis of the second
advertisement, the Selection Committee recommended both
SLP (C) Nos.67646765 of 2018 Page 9 of 15
the appellant and the fifth respondent. However, in the order
of merit, the appellant was shown at serial no.1 and the fifth
th
respondent was shown at serial no.2. By the letter dated 5
January 1995, the fourth respondent–University approved the
appointment of the appellant against the open post of
lecturer. The fourth respondent–University also approved the
appointment of the fifth respondent against the post reserved
for the Scheduled Caste category on a temporary basis.
th
13. Thereafter came the fourth advertisement dated 17
June 1996 for the same post reserved for the Scheduled Caste
category. Again, the fifth respondent applied. However, the
management of the second respondent–College appointed one
Mr Gorakh Jagannath Sathe against the reserved post which
led to the order of termination of the fifth respondent. As
pointed out earlier, the fifth respondent challenged the order
of termination by filing an appeal to which, the appellant was
not made a party. In the said appeal, a specific stand was
taken by the College that the appointment of the appellant
was made on the open post regularly and she has been
working as a confirmed teacher in the said post. During the
pendency of the appeal preferred by the fifth respondent, the
second order of termination was passed on the ground that
the Commerce faculty was closed. Therefore, one more appeal
th
was preferred by the fifth respondent. On 5 February 1998,
the Tribunal by setting aside the order of termination of the
fifth respondent, directed her reinstatement. For giving effect
th
to the said order, on 5 January 1999, the appellant was
SLP (C) Nos.67646765 of 2018 Page 10 of 15
appointed again as a parttime lecturer on the ground that
there was approval to only two and a half posts of English
lecturers and the fifth respondent cannot be removed. In the
writ petition filed by the appellant, there was an order of
remand. After remand, the appeal preferred by the fifth
respondent was again allowed and that is how the appellant
filed a writ petition before the High Court which has been
dismissed by the impugned order. The High Court found that
when the selection process was conducted against the first
advertisement, the appellant was placed below the fifth
respondent in the order of merit and in fact, approval was not
granted to the appointment of the appellant.
14. The analysis of the aforesaid factual position shows that
the appellant has been placed in a very peculiar position. On
the basis of the process conducted pursuant to the first
advertisement, the appellant was appointed against the open
th
post by the letter of appointment issued on 8 September
1993 which recorded that the appointment of the appellant
was temporary subject to the condition of qualifying the NET
Examination during the probation period. At that time,
though the fifth respondent was appointed against the post
reserved for the Scheduled Caste category, she did not
protest. Pursuant to the second advertisement, both the
appellant and the fifth respondent applied. By the letter
th
dated 26 October 1994, the appellant was appointed subject
to clearing the NET Examination during the probation period.
th
By the letter dated 5 January 1995, the appointment of the
SLP (C) Nos.67646765 of 2018 Page 11 of 15
appellant was approved by the fourth respondent–University
against the open post. As stated earlier, the fifth respondent
applied pursuant to the third and fourth advertisements
without making any grievances about the outcome of the
process conducted under the second advertisement under
which the appellant was appointed against the open post.
Due to the orders passed by the Tribunal, by the order dated
th
5 January 1999, the appellant was again appointed as a
parttime lecturer on a temporary basis. Thus, the appellant
worked against the open category post of lecturer in English
th th
from 8 September 1993 till 5 January 1999 and in the
meanwhile, the fourth respondent–University approved the
th
regular appointment of the appellant by the letter dated 5
January 1995. This situation has arisen as the fifth
respondent never objected to the appointment of the appellant
pursuant to the first and second advertisements and she
participated in the two further processes conducted on the
basis of the third and fourth advertisements. In this process,
the appellant has become age barred to get the appointment
to the post of lecturer elsewhere. Even assuming that there
was an error committed by the College Management by
appointing the appellant against the open category of post in
the year 1994, the appellant cannot be allowed to suffer, as in
the second process, she was the first in the order of merit.
This selection was never challenged by the fifth respondent.
15. The appellant continues to work as a lecturer in English
on a half time basis. Therefore, for doing substantial justice,
SLP (C) Nos.67646765 of 2018 Page 12 of 15
this is a fit case where we should invoke our power under
Article 142 of the Constitution of India for continuing her
appointment on full time basis. While doing so, we will have
to issue directions to the State Government to release grant
inaid to the first and second respondents for payment of
salary to the appellant.
Hence, by modifying the impugned order, without
16.
disturbing the fifth respondent, we issue the following
directions in the exercise of our jurisdiction under Article 142
of the Constitution of India:
a. The appellant shall be reinstated to the post of
lecturer in English in the second respondent
th
College with effect from 5 January 1995 within a
period of one month from today;
However, the appellant will not be entitled to the
b.
th
salary of the post of lecturer from 5 January
1995 till the date of her appointment in terms of
this order;
c. The appellant shall be placed in the seniority list
immediately below the fifth respondent and the
lecturer appointed on the post reserved for
Scheduled Caste;
SLP (C) Nos.67646765 of 2018 Page 13 of 15
d. As clarified earlier, the appellant will not be
entitled to salary admissible the post of lecturer
th
from 5 January 1995 till the date of her
appointment in terms of this order and this period
shall be taken into consideration only for the
limited purposes of granting retiral benefits to the
appellant;
We direct the State Government to release
e.
necessary grantinaid for payment of salary to the
appellant from the date of her appointment to the
post of lecturer in English pursuant to this order,
if necessary, by creating a supernumerary post;
f. We make it clear that notwithstanding this order,
the post and status of the fifth respondent shall
remain unaffected;
g. We make it clear that the directions issued under
this order are in the exercise of the jurisdiction of
this Court under Article 142 of the Constitution
and the same shall not be treated as precedent;
and
SLP (C) Nos.67646765 of 2018 Page 14 of 15
The appeals are disposed of on the above terms.
h.
….…………………….J.
(Abhay S. Oka)
.....…………………...J.
(Sanjay Karol)
New Delhi;
August 28, 2023.
SLP (C) Nos.67646765 of 2018 Page 15 of 15