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 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 JUDGMENT 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.
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, JUDGMENT 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.
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 JUDGMENT 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. 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 JUDGMENT 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:-
“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 JUDGMENT 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 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 JUDGMENTthe impugned orders are set aside.
(Surinder Singh Nijjar) (M.Y. Eqbal) New Delhi April 8, 2013