B.T. KRISHNAMURTHYversusSRI BASAVESWARA EDUCATION SOCIETY & ORS.

                    [2013) 5 $.C.R. 359


                    B.T. KRISHNAMURTHY                           A
                              v.
    SRI BASAVESWARA EDUCATION SOCIETY & ORS.
           (Civil Appeal No. 2948 of 2013 etc.)
                       APRIL 8, 2013
                                                                 B
    [SURINDER SINGH NIJJAR AND M.Y. EQBAL, JJ.]

     Service Law:

    Reinstatement and regularization - Of part-time lecturer     c
- Held: Temporary! part-time lecturer working without any
appointment "fetter and without any selection process, cannot
be reinstated and his services cannot be regularized.

      Termination - Temporary/part-time Lecturer - Working
without appointment letter - Termination of service orally       D
communicated - Legality of - Held: Termination simp/icitor is
not per se illegal and not violative of principles of natural
justice.

      The respondent in Civil Appeal No. 2949 was working        E
  as a Lecturer in the College run by respondent-Society
  from 28.6.1990. No appointment letter was issued to him.
  On 22. 7.1995 he was orally told that his services were
  terminated. Thereafter, the college invited applications for
  appointment on the post of Lecturer. Respondent No.1           F
  also applied for the same. Another person was
  appointed. Since the person appointed, left the service,
· another advertisement was issued for appointment on
  the said post, and appointment was made thereon.
  Respondent No.1 approached the court challenging his           G
 termination from service. Education Appellate Tribunal
  directed the Society to reinstate respondent No.1 with all
 consequential benefits and to regularize his services. The
 order of the Tribunal was upheld by Single Judge of High
·                            359                                 H
    360      SUPREME COURT REPORTS                [2013] 5 S.C.R.


A Court as well as Division Bench of High Court. Hence the
  present appeals.

          Allowing the appeals, the Court
       HELD: 1. The Tribunal completely misdirected itself
B in passing 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
C termination was also not served upon the respondent.
  [Para 24) [370-B-C]

       2. In the absence of any appointment letter, issued
  in favour of the respondent, as he was temporary/part-
D 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
E 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
  $implicitor is not per se illegal and is not violative of
F principles of natural justice. [Para 25) [370-D-F]

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    2948 of 2013.

G       From the Judgment and Order dated 11.07.2011 of the
    High Court of Karnataka at Bangalore in WA No. 1812 of 2006.
                                   WITH
    Civil Appeal No. 2949 of 2013.

H         P. Vishwanatha Shetty, P.S. Patwalia, C.M. Angadi, Vijay
   B.T. KRISHNAMURTHY v. SRI BASAVESWARA                  361
           EDUCATION SOCIETY & ORS.
Kumar, Rameshwar Prasad Goyal, Bipin Kalappa, Krishma,            A
Ajay Singh, Tushar Bakshi, N. Ganpathy, S.N. Bhat, D.P.
Chaturvedi, N.P.S. Panwar, Ravi Panwar, V.N. Raghupathy for
the appearing parties.

    The Judgment of the Court was delivered by                    B
    M.Y. EQBAL, J. 1. 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            C
heard and disposed of by this common judgment.

     3. By the impugned judgment and order, a Division Bench
of the Karnataka High Court dismissed the appeals and
affirmed the order dated 20 Of 2006 passed by a learned
Single Judge in Writ Petition Nos. 52603 of 2003 and 54201        D
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:-
                                                                  E
     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').          F
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    G
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        H
    362     SUPREME COURT REPORTS                 [2013) 5 S.C.R.


A College. Pursuant to the 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
B 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
c 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
0
  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
E Lecturer. Along with the said appeal, an application for
  condonation of delay was also filed. Pending appeal, the
  Tribunal passed interim order dated 17.12.1996, restraining the
  Society and the Principal of the College from appointing any
  person to the post of Lecturer.
F
         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,
G 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
H Society to reinstate respondent No.1 in service w.e.f.
   B.T. KRISHNAMURTHY v. SRI BASAVESWARA                    363
   EDUCATION SOCIETY & ORS. [M.Y. EQBAL, J.]
23.07.1995 and to pay him all pecuniary benefits w.e.f.             A
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.
                                                                    B
      1O. 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        C
with the order passed by the 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 o~der dated
 11.07.2011. Hence, these appeals.
                                                                    D
     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   E
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.                            F

     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.         G

      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 fact, respondent No.1 was allowed       H .
      364      SUPREME COURT REPORTS                  [2013] 5 S.C.R.


- Ato 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
 B 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
  C   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
  D   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
  E   respondent was serving the College as temporary part-time
      Lecturer which is evident from the attendance register
      maintained by the College. The Tribunal, therefore, held that
      even presuming that the respondent was a temporary employee
      he was to be removed from service by passing appropriate
  F   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
  G   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
  H
   B.T. KRISHNAMURTHY v. SRI BASAVESWARA                   365
   EDUCATION SOCIETY & ORS. [M.Y. EQBAL, J.]
held as illegal and improper. On these findings, the Tribunal     A
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    8
    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     C
    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     D
    order.

          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        E
    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.                                 F

          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        G1
    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
an~ B.T. Krishnamurthy before the High Court. The learned         H
      366      SUPREME COURT REPORTS                     [2013] 5 S.C.R.


·A 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
  B
            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
  c         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 pass an award after taking into
  D         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.

  E         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
  F 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
  G 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
1   dated 21.04.1995 had made it clear that the reservation policy
    of the State Government regarding appointment of teaching and
  H non-teaching employees was to be left undisturbed. The
                                                        ., .




   B.T. KRISHNAMURTHY v. SRI BASAVESWARA                       367
   EDUCATION SOCIETY & ORS. [M.Y. EQBAL, J.]
Division Bench, however, not disputed the fact that neither          A
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     B
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        C
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         D
 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    E
 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      F
 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        G
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        H
    368     SUPREME COURT REPORTS                  [20131 s s.c.~.


A 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.
B
        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 iribunal are based on various
  documents and entries made in different registers maintained
C 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.

D        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
E 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
F 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
G 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
H Malleshappa joined and continued for about a year and
    B.T. KRISHNAMURTHY v. SRI BASAVESWARA                   369
    EDUCATION SOCIETY & ORS. [M.Y. EQBAL, J.]
  thereafter he left service and joined M.Phil Course. Thereafter, A
  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 B
  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   c
  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
                                                                    0
  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 E
  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 F
      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 G
      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 H
    370      SUPREME COURT REPORTS                    [2013] 5 S.C.R.


A         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."
B
         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
C   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 respond&nt as he was temporary/
D   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
E   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.
F        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.
G
        27. For the reasons aforesaid, these appeals are allowed
    and the impugned orders are set aside.

    K.K.T.                                           Appeals allowed.
H