The issue concerns the employment of the appellant, a lecturer, with the second respondent–College which is affiliated to the fourth respondent–Shivaji University, Kolhapur, Maharashtra. (Para 2)
The fourth respondent–University approved the said appointment. (Para 3)
The appellant was appointed to the post of lecturer in English for one academic year on a fulltime basis (Para 4)
The second respondent–College wrote a letter on 28th 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 the letter dated 4th 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 (Para 5)
The fifth respondent again applied for the post. On 28th October 1996, the second respondent–College terminated the appointment of the fifth respondent from the end of the term. Being 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 dated 20th 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 respondent before the Tribunal. By the order dated 5th 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. (Para 7)
In the meanwhile, the appellant filed a writ petition in the High Court for challenging the order dated 5th February 1998 by which the fifth respondent was ordered to be reinstated. (Para 8)
On 5th September 2014, the High Court in the writ petition filed by the appellant set aside the order dated 5th February 1998 of the Tribunal and remanded the appeal for fresh consideration. In the meanwhile, by the communication dated 29th 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 the common judgment and order dated 21st December 2015, the appeal preferred by the appellant was dismissed and the appeals preferred by the fifth respondent were allowed. (Para 8)
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 category post. That is how, on 26th 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 appointed candidate and therefore, her appointment on a fulltime basis cannot be disturbed. (Para 10)
The submission of the learned counsel appearing for the 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. (Para 11)
Thus, the appellant worked against the open category post of lecturer in English from 8th September 1993 till 5th January 1999 and in the meanwhile, the fourth respondent–University approved the regular appointment of the appellant by the letter dated 5th 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. (Para 14)
Hence, by modifying the impugned order, without disturbing the fifth respondent, we issue the following directions in the exercise of our jurisdiction under Article 142 of the Constitution of India:
- The appellant shall be reinstated to the post of lecturer in English in the second respondent-College with effect from 5th January 1995 within a period of one month from today;
- However, the appellant will not be entitled to the salary of the post of lecturer from 5th January 1995 till the date of her appointment in terms of this order;
- 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;
- As clarified earlier, the appellant will not be entitled to salary admissible the post of lecturer from 5th 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 necessary grant-in-aid 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;
- We make it clear that notwithstanding this order, the post and status of the fifth respondent shall remain unaffected;
- 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
- The appeals are disposed of on the above terms. (Para 16)
SUPREME COURT OF INDIA
2023 STPL(Web) 216 SC
[2023 INSC 775]
Vijaya Bhiku Kadam Vs. Mayani Bhag Shikshan Prasarak Mandal & Ors.
Civil Appeal Nos. 5483-5484 of 2023 (Arising out of Special Leave Petition (C) Nos.67646765 of 2018)-Decided on 28-8-2023
https://stpllaw.in/wp-content/uploads/2023/08/2023-STPLWeb-216-SC-1.pdf
