DR. M.S. PATILversusGULBARGA UNIVERSITY AND ORS.

                      [2010] 10 S.C.R. 232


A                        DR. M.S. PATIL
                                v.
              GULBARGA UNIVERSITY AND ORS.
                (<;;ivil Appeal .No. 1483 of 2005)
                       AUGUST 27, 2010.
B
             [AFTAB ALAM AND R.M. LODHA, JJ.]

       Service law - Appointment - Post of Reader -
  Appointment of appellant-general category candidate -
C Challenged to - Case of respondent-reserved category
  candidate that the post was reserved for 'Group B' candidate
  and appointment of appellant was the result of favouritism :-
  -Appointment set aside by High Court - However, appellant
  directed to continue on ad;hoc basis_ until appointment of new
o incumbent to the post ..:.. On appeaf, ·held: Appellant was
  wrongly appointed to a post reserved for 'Group B' category
  - His selection to the post was tainted - In ·se,Y/ce law,
  concepts of adverse posses!?ion or holding over are not there
  - For 17 years, appellant occupied the post which lawfully
E belonged to someone else - Equitable considerations are
  against him - Appellant continued in that post on basis of the
  direction of StJpreme Court to maintain status quo, thus no
  need to continue ad-hoc arrangement any further- University
  directed to issue fresh Notification to fill up the post. :
                                                         t
F     The respondent-University ad~ertised ptists of
  Reader..; In the remarks column of the Notification, the
  said post was reserved for 'Group B' catego.ry. The
  appellant-general category candidate, was s~lected.
  Respondent no.2, a 'Group B' candidate, challenged the
G appointment of the appellant on the ground that the post
  was reserved for 'Group B' candidate; and that the
  appointment of the appellant was the result of favouritism.
  The Single Judge of the High Court set aside the selection
  and appointment of the appellant as Reader. It directed
H                            232
     DR. M.S. PATIL v. GULBARGA UNIVERSITY AND            233
                         ORS.
the University to fill up the post of reader calling for fresh   A
applications and to complete the selection within the
stipulated period. However, the appellant was allowed to
continue on the post till the fresh selection process was
completed. The Division Bench of the High Court upheld
the order passed by the Single Judge of the.High Court.          B
Therefore, the appellant filed the instant appeal.
      Dismissing the appeal, the Court
     HELD: 1.1 The facts of the case lead to only one
conclusion that the appellant was wrongly appointed to           C
a post that was reserved for 'Group B' category. The High
Court also found that the appellant's selection for
appointment to the post was tainted by the participation
of the Head of the Department of Kannada, who was
related to him, in the selection process. [Para 11] [239-C-      D
D]
     1.2 In service law, there is no place for the concepts
of adverse possession or holding over. Helped by some
University authorities and the gratllitous circumstances         E
of the interim>orders passed by the ~ourt and the delay
in final disposal of the matter, the appellant has been
occupying the post, for all these years that lawfully
belQnged to someone else. Thus, the equitable
considerations are actually against him rather than in his
favour.~ It is noted as to how the appellant was able to         F
secure\ the appointment and how he man~ged to
continue:on the post. ·ey notification 'dated Augus~ 13,
2004, the·.appellant was discharged from the service of
the University on the post of Reader in Kannada but' was
asked to coritinue on ad-hoc basis until the appointment         G
of the new incumbent to the post, on the basis of the
order of status quo passed by this Court. Thus, his
position is only+ ·.ad- hoc till
                              .
                                 the appointment of the new
incumbent and 'in that position he Is continuing on the
basis of the direction of this Court to maintain status quo.     H
      234       SUPREME COURT REPORTS                 [2010) 10 S.C.R.


A There is no reason to continue this ad-hoc arrangement
  any further and stand any longer in .the way of the.post.-
  being filled up on a regular basis .. [Paras 13) [239-F-H;
      240-A-C]
            1.3 Since the matter has become very old, it would
B     not be reasonable for the University to fill up the post on
      the basis 'of the notification issued in the year 1993.
      Therefore, the University could issue a fresh notification
      to fill up the post. [Para 14) [240-C-D]
C         CIVIL APPELLATE JURISDICTION : Civil Appeal No.
      1483 of 2oos.
          From the Judgment & Order dated 02.06.2004 of the High
      Court of Karnataka at Bangalore in W.A. No. 1303 of 2000.
o--         Basava Prabhu S. Patil, Ajay Kumar M. (for A.S. Bhasme)
      for the Appellant.
            S.N. Bhat, Lakshmi R_aman Singh for the Respondents. ,
            The Judgment of the Court was delivered by            -·       ·;~f
E          AFTAB ALAl\ll,J. 1. This case sadly illustrates how interim
      orders passed by the court qoupled with judicial delays enure
      to the great advantage of the wrong doer and in the end make
      him bold in the false belief.that with the _pai;sage of time ~he .
      equity was now firmly on hi~ side. The appellant in this case
F     was wrongly appointed to the post of Reader in the Department
      of Kannada in Gulbarga Univ._ersity.. On the basis of_1:the. .inte.ri_m
      orders. passed by the Court an~ evidently. h~lped.• by .the._
      concerned authorities in the University he has been able to hold
      on to the post now for over seventeen and a half years .
.G                                              .     -   J'· .        -   .   -   .
       2. The manner in which tb~.f~Se_has progressed to reach.
  the present stage may be stated thus. On March 30, 1992 the
  Gulbarga University:-Gulparga--invitec;i~applicatiGns ,for-.4
  appointment to different posts. One of the advertised posts was
H of Reader in Kannada. In the remarks column of the notification,

                        •
     OR. M.S. PATIL v. GULBARGA UNIVERSITY AND                  235
     .
    .,          ORS. [AFTAB ALAM, J.]
    it was Clearly shown. as reserved for 'Group 8' category. It        A
· -needs to be stated here that a plain copy of the notification is
    enclosed with the paper book as part of Annexure Pl. In the
    remarks column of the enclosed copy, the letters "GM" are
    shown against the post in question, indicating that it was open
--to·the general merit category. In order to show that it was           B
· - incorrect Mr. L. R. Singh, counsel for respondent No. 2 produced
    before us a Xerox copy of the notification from which it clearly
    appears that the post was reserved for a candidate of 'Group
    B' category. Thus, confronted the lame plea on behalf of the
    appellant was that the mistake in the copy (Annexure P1) was        c
    due to a typing error. We do not wish to proceed any further in
    the matter except to say that a typing error materially affecting
    the facts of the case to the benefit of the party committing the
    mistake has to be viewed with a good deal of suspicion.

        3. In response to the notification, 11 applications were        D
  made for the post in question. Only 3 applicants were from
  'Group B' category and the rest were from different other
  categories; the appellant is from the ·general merit category.
  According to the appellant, the Board of Appointment did not
  find any of the 'Group B' candidates eligible or suitable and on      E
   the basis of the interview held on June 5, 1992 he was selected
   for appointment. His .selection was approved by the Syndicate
   on February 1, 1993 and a notification for his appointment was
   issued on February 4, 1993 in pursuance of which he joined
   the post.                                                            F

    , . 4. On June 27, 1993 respondent No.2 filed a writ petition
  [W:P. No.22047/1993] in the Karnataka High Court challenging
  the appellant's appointment on the ground that the post was
  reserved for 'Group B' candidate. He also alleged that in a           G
  certain way the appellant (respondent No. 2 in the Writ Petition)
  was closely related to the Head of the Kannada Department
  of the University (respondent No.3 in the WP) and his
  appointment was the result of favouritism. Before the High
  Court, the writ petition was resisted both by the appellant and
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    236      SUPREME COURT REPORTS               [2010] 10 S.C.R.


A the University. On behalf of the University, it was stated that the
  Writ Petitioner (respondent No.2 in this appeal) did not satisfy
  the requirements as per the government order to consider him
  as coming under 'Group B' category and, therefore, the Board
  of Appointment interviewed all the candidates and selected
B respondent No.? (appellant herein, who belonged to the .
  General category) ory the basis of his qualification, experience
  and performance in the interview. The appellant and the Head
  of the Department (who was made a party to the writ petition
  and was served with notice) on their part denied any
c relationship between them. · ·
          5. A learned single judge of the High Court upheld the
    contention of the Writ Petitioner (respondent no.2 herein) on
    both· counts. He held that the selection and appointment of the
    appellant, belonging to the General Merit category, to the post
D   reserved for 'Group B' category was illegal. The learned judge
    further held that the appellant (respondent No.2) was closely
    related to the Head of the·Departmenl ·(respondent No.3 in the
    writ petition) and, therefore, he ought not to have participated
    in the seiection to the post of Reader in Kanna~a. On behalf of
E   the present appellant, it was also pleaded befpre the learned
    single judge that since he had been working for several years
    after his appointment to the post he should not be disturbed:
    The learned judge did not accept the plea. He allowed the writ
    petition and by judgment and order dated December 6, 1999
F   set aside the selection and appointment of the appellant as
    Reader in Kannada on the basis of the notification dated March
    30, 1992. The single judge directed the University to fill µp the
    post of Reader in Kannada calling for fresh applications and
    to complete the selection within 6 months from the date of the
G   judgment. He, however, allowed the appellant to continue on the
    post till the selection process. was completed.

        6. Against the judgment and order passed by the single
    Judge, the appellant preferred an intra court appeal (W.A.
    No.130312000). A division bench of the High Court, dismissed
H
   DR. M.S. PATIL v. GULBARGA UNIVERSITY AND                  237
              ORS. [AFTAB ALAM, J.]

 the appeal by judgment and order dated June 2, 2004. The             A
  division bench noted that the single judge had come to the
. conclusion that the appellant was related to the Head of the
  Department and, therefore, the Head of the Department ought
  not to have participated in the selection proceedings in which
  a person related to him was one. of the candidates. As regards      B
  the appointment of the appel,lant who belonged to the general
  merit category to a post reserved for 'Group B' category the
  division behch made the following observations:

       "We may observe that there is not material to support this
       contention to come to the conclusion ·that the selection       C
       committee did not consider the claim of the persons
    . belonging to Group B category on that ground. If any of the
       candidates· belonging to Group B category did not satisfy
      the qualifications prescribed, it can be taken note of by the
     . selection committee and reasons can be recorded for            D
       considering General Merit candidate for such post. But we
       do not firid material on record to accept that plea and to
     . interfere in the order of the learned ,Single Judge which
       has been passed after taking into consideration the
       reservation policy and the qualifications required and also    E
       the posts ·notified in the notification."

      7. By the time the appeal was heard by the division bench,
 ten years had gone by and the appellant was continuing on the
 post. On that basis it was strongly urged that it would be very      F
 unfair to him if he is forced to go back to the college from where
 he had resigned tl):jdin the po;t- of Reader in Gulbarga
 University. The division bench was, however, unmoved. It
 maintained the order passed by the learned single judge and
 directed the University to fill up the post of Reader in Kannada     G
 pursuant to the notification dated March 30, 1992 giving
 opportunity to all the eligible candidates who had submitted
 their applications in response to the notification and complete
 the selection process within three months from the date of
 receipt of a copy of the order.
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    238        SUPREME COURT REPORTS                 [2010] 10 S.C;R.


A        8. Against the order of the division bench, the appellant
    came to this Court in appeal. In the SLP, notice was issued on
    September 13, 2004 and a direction was given to maintain a
    status quo as obtaining on that date. Finally, the leave to appeal
    was granted on February 28, 2005.
B
       9. In the ·meanwhile;· there were some, intervening
  8evelopments that have "a bearing on the matter. In compliance
  with the order passed by the division bench of the High Court,
  the University issued an order on August 13, 2004 by which the
C appellant wa~ discharged from the service of the University on
  the post of Reader in Kannada but was asked, as directed by
  the High Court, to continue as Reader in Kannada on ad-hoc
  basis· until the completion of the appointment of the new
  incumbent.to the post. Later, on the basis oflhe mterview, held
  on August 20, 2004 the Board of appointment selected and .
D recommended for appointment one Dr. (Smt.) Mallamma Ganti.
  The recommendation of the Board of Appointment was placed
  before the Syndicate. After much discussion, the .Syndicate
  approved the recommendation of the Board of Appointment to
  appoint Smt. Mallamma Ganti as Reader in Kannada. But the
E approval was not without ql!alification. It was stated that the
  syndicate "felt that since disciplinary proceedings are_ now
  pending against her [Dr. (Smt.) Mallamma Ganti], this fact may
  also be brought to the notice of the Honorable High Court
  before the orders are issued." There is nothing to show that
F anything was brought to the notice of the High Court, but this
  much is evident that no order was ever issued for appointment
  of Dr. (Smt.) Mallamma Ganti to the post in question.

      10. In the counter affidavit filed by respondent no.2, in this
G appeal, it is stated as follows:          ·

          "It is also relevant to state that from the information derived   ''
          frorn the University under the Right to Information Act, no
          disciplinary proceedings against Dr. Mallamma Ganti was
          pending as on the date of her selection and yet she was
H         not allowed to join the said post merely to show undue favor
   DR; M.S. PATIL v. GULBARGA UNIVERSITY AND                  239
              ORS. [AFTAB ALAM, J.]
     to the appellant herein as the University due to malafide        A
     ·reasons was determined to show undue favour to the
     appellant herein."
 The above statement is not controverted either by the appellant
 or ~n be_half of the University. Thus, the~ appellant was allowed ,a
 to continue on·the post with some little help from the University -
-authorities and on the basis of the order of status quo passed
 by this Court.                                            -

     11. Once the facts of the case are narrated, there remains
hardly anything to adjudicate upon. The facts of the case lead C
to only one conclusion that the appellant was wrongly appointed
to a post that was reserved for 'Group B' category. The High
Court has also found that the appellant's selection for
appointment to the post was tainted by the participation of the
Head of the Department of Kannada, who was related to him, D
in the selection process. In those facts and circumstances, all
that is needed Is to dismiss the appeal without further {:ldo. _
       12. But at this stage once again a strong appeal is made
 to let the appellant continue on the post where he hos already       E
 worked for over 17 years. Mr. Patil, learned senior go1m1el,
 appearing for the appellant, submitted that throwing him out after
 more than 17 years would be very hard and unfair to him since
  now he cannot even go back to the college where he worked
  as lecturer and from where he had resigned to join to this post.    F
       13. We are unimpressed. In service law there is no place
 for the concepts of adverse possession or holding over. Helped
 by some University authorities and the gratuitous circumstances ·
 of the interim orders passed by the Court and the delay ih final
 disposal of the mater, the appellant has been occupying the G
 post, for all these years that lawfully belonged to sorneone else.
 The equitable considerations are, thus, actually against him
 rather than in his favour. The matter can also be looked at from
 a slightly different angle. It is noted above how the appellant was
 able to secure the appointment and how he managed to H
    240      SUPREME COURT REPORTS              [2010] 10 S.C.R.


A continue on the post. By notification dated Augast 13, 2004,
  the appellant was discharged from the service of the University
  on the post of Reader in Kannada but was asked to continue
  on ad-hoc basis until the appointment of the new incumbent to
  the post. His position is, thus, only ad- hoc till the appointment
B of the new incumbent and in that position he is continuing on
  the basis of the direction of this court to maintain status quo.
  We see no reason to continue this ad~hoc arrangement any
  further and we do not wish to stand any longer in the way of
  the post being filled up on a regular basis.
c       14. Since the matter has become very old, it would not, be
  reasonable for the University to fill up the post on the basis of
  the notification issued in the year 1993. The University may,
  therefore, issue a fresh notification to fill up the post. The
  process of selection and appointment on the basis of the fresh
D notification should be completed within six months from today.
                                 .      .   '
        15. In the result, the appeal 'is dismissed with c<:>sts,
    quantified at Rs.50.000.00'.(nJpees fifty thousand only).

    N.J.                                        Appeal dismissed.
                                                         .   . .