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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.

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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  

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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  

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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  

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Tribunal.  The Society and B.T. Krishnamurthy then preferred intra-  

court 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  

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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  

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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.

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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  

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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  

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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.

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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.

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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.  

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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 above-

named 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:-

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“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  

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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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