Case: GOPINATH AND ANOTHER Vs. HARISCHANDRA (D) BY LRS. AND OTHERS

emoluments to employee for such period as it may specify. The Tribunal chose to exercise its power under section 42 (D) sub- Section 2 and has directed for payment of compensation instead of reinstatement. The Tribunal stated in its order that due to subsequent development Incharge Principal was appointed who has already been approved by the University, reinstatement of the petitioner as Incharge, Principal cannot be made. 19. The order of the Tribunal was challenged by Gitte and Suvalal as noted above. The High Court in its judgment has proceeded on mis-conception that the appointment of Gitte was confirmed as a result of resolution passed by the management committee and he was placed on regular scale. High Court further noticed that the fact that Gitte was not regularly selected was procedural lapse on the part of the management. In this context, observations made by High Court in para 15-16 are noteworthy: 15. The contention of learned counsel for the contesting respondents/interveners is that though, order of reversion could be branded as illegal and late Suvalal had no legal authority to issue the same yet, the petitioner -Prof. H.P.Gitte cannot claim reinstatement for the reason that he was not appointed by Selection Committee constituted under statute No.219. I am unable to persuade myself to go along this line of argument. The appointment of Prof. H.P.Gitte was confirmed as a result of the resolution passed by the Managing Committee and he was accordingly informed by letter dated 24.5.1993(Exh.A). he was placed in regular pay scale of Principal. The letter does not indicate that his such appointment was made subject to approval by the University. The said letter does not show that it was adhoc appointment. On the other hand, the letter referred to above would show that his services as Principal came to be regularized and confirmed. There is difference between irregular appointment and void abinitio appointment. The appointment to the post of Principal is required to be made by the Managing committee of the college after adopting regular procedure. The candidate is required to undergo selection procedure and Selection Committee is to be constituted as per statute No.219. The appointment of petitioner -Prof. H.P. Gitte was quite irregular since he was not selected by the Selection Committee. This was procedural lapse committed by the Management committee of the college. The Petitioner himself was not responsible for such an irregularity. In case of ram Sarup Vs. State of Haryana and Ors., (1978) AIR SC 1536 the Apex Court held that irregular appointment could be regularized as and when the candidate would acquire the necessary qualifications to hold the post. The Apex court observed as under: ...The question then arises as to what was the effect of breach of Cl(1) of R.4 of the Rules. Did it have the effect of rendering the appointment wholly void so as to be completely ineffective or merely irregular, so that it could be regularised as and when the appellant acquired the necessary qualifications to hold the post of Labour-cum-Conciliation Officer. We are of the view that the appointment of the appellant was irregular since he did not posses one of the three requisite qualifications but as soon as he acquired the necessary qualification of five years experience of the working of labour laws in any one of the three capacities mentioned in Cl.(1) of R.4 in any higher capacity, his appointment must be regarded as having been regularised. 16. The irregularity committed by the management of the college could be cured after allowing the Petitioner Prof. H.P.Gitte to undergo selection procedure as required under statute No.219. The appointment could not be regarded as totally void. There are lapses which can be condoned by the University within its discretion. The provisions of statute No.219 would set out methodology for selection to the post of Principal. The Petitioner - Prof. H.P.Gitte was then duly qualified and experienced for such appointment. The requirement of added educational qualification as NET/CET was subsequently introduced. At the relevant time such educational qualification was not a condition precedent for appointment to the post of Principal. The illegal deprivation of the petitioner - Prof. H.P.Gitte from the post of Principal has surely caused a stigma as well as humiliation to him. the approval of the University to such appointment could be sought by the management after making a request to constitute Selection Committee under statute No.219. 20. We have already noted above that the resolution of management confirming the services of Gitte as Principal in regular scale dated 24.5.1993 was disapproved by the University which was communicated vide its letter dated 13.7.1993 extracted above. High Court was in error in not considering the true nature of the appointment of Gitte as Incharge, Principal. It is also relevant to notice that during pendency of the writ petition, regular selections on post of Principal took place twice. In regular selection which was held in 2001 after due advertisement Dr.A.R. Kurme was appointed. In the said selection Gitte did not participate. Dr.Kurme was appointed on 13.8.2001 who subsequently died on 27.12.2005. After death of Dr. Kurme, fresh advertisement was issued on 14.1.2006 for regular Principal. Dr.Ramchandra Kishanrao Ipper one of the appellants who has filed appeal against the order of the High Court was regularly selected and appointed as Principal on 24.03.2006, i.e. before the judgment of High Court. 21. It is also relevant to notice that there was no challenge to the regular selections made during the pendency of the writ petition by Gitte or anyone else. When two regular principals have already joined and worked during the period when the writ petition remained pending, High Court committed error in directing for reinstatement of Gitte with 50% back wages. Direction of reinstatement itself was unfounded. Looking to the very nature of the appointment of Gitte who was only an Incharge, Principal in view of the subsequent development as noticed above, there was no question of direction of reinstatement of Gitte on the post of Incharge Principal.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]13. We have considered submission on behalf of the parties. The facts as disclosed above indicate that the appointment of Gitte was only appointment of Incharge Principal which is clear from the terms of the appointment dated 10.1.199115. It is noted in the order of the Tribunal that Gitte was not paid the salary of Principal and he continued as Lecturer, which post he was substantively holding. At this stage, we may also notice one of the submissions made by the learned counsel appearing for Gitte that management has confirmed his services as Principal by letter dated 24.5.1993 by which order the appointment of Gitte was confirmed w.e.f. 11.1.1993 in the pay scale of Rs,4500- 6300/-. A perusal of the order dated 13.7.1993 of the University makes it clear that in reference to letter forwarded praying approval for confirmation of Gitte on the post of Principal in the pay scale,16. The above makes it clear that Gitte was never appointed on the post and he was only Incharge Principal. The letter dated 13.7.1993 noted that Gitte was never appointed by Selection Committee as per selection procedure. Tribunal had already returned a finding that the termination was illegal. The management did not file an appeal against the order of Tribunal. Therefore, those findings still go in favour of Gitte and we need not enter into the said issues since the Tribunal has already held that termination was not valid. We proceed on the premise that the termination of Gitte on 29.12.1993 was not in accordance with law. As the order of Tribunal having not been challenged by the Tribunal, the said order cannot be questioned before us.18. A perusal of the above said provision indicates that when the Tribunal comes to conclusion that termination was in contravention of any law, contract or condition of service, the Tribunal is empowered to reinstate the employee or to award any lesser arrears or emoluments to employee for such period as it may specify. The Tribunal chose to exercise its power under section 42 (D) sub- Section 2 and has directed for payment of compensation instead of reinstatement. The Tribunal stated in its order that due to subsequent development Incharge Principal was appointed who has already been approved by the University, reinstatement of the petitioner as Incharge, Principal cannot be made.19. The order of the Tribunal was challenged by Gitte and Suvalal as noted above. The High Court in its judgment has proceeded on mis-conception that the appointment of Gitte was confirmed as a result of resolution passed by the management committee and he was placed on regular scale. High Court further noticed that the fact that Gitte was not regularly selected was procedural lapse on the part of the management. In this context, observations made by High Court in para 15-16 are noteworthy:15. The contention of learned counsel for the contesting respondents/interveners is that though, order of reversion could be branded as illegal and late Suvalal had no legal authority to issue the same yet, the petitioner -Prof. H.P.Gitte cannot claim reinstatement for the reason that he was not appointed by Selection Committee constituted under statute No.219. I am unable to persuade myself to go along this line of argument. The appointment of Prof. H.P.Gitte was confirmed as a result of the resolution passed by the Managing Committee and he was accordingly informed by letter dated 24.5.1993(Exh.A). he was placed in regular pay scale of Principal. The letter does not indicate that his such appointment was made subject to approval by the University. The said letter does not show that it was adhoc appointment. On the other hand, the letter referred to above would show that his services as Principal came to be regularized and confirmed. There is difference between irregular appointment and void abinitio appointment. The appointment to the post of Principal is required to be made by the Managing committee of the college after adopting regular procedure. The candidate is required to undergo selection procedure and Selection Committee is to be constituted as per statute No.219. The appointment of petitioner -Prof. H.P. Gitte was quite irregular since he was not selected by the Selection Committee. This was procedural lapse committed by the Management committee of the college. The Petitioner himself was not responsible for such an irregularity. In case of ram Sarup Vs. State of Haryana and Ors., (1978) AIR SC 1536   the Apex Court held that irregular appointment could be regularized as and when the candidate would acquire the necessary qualifications to hold the post. The Apex court observed as under:...The question then arises as to what was the effect of breach of Cl(1) of R.4 of the Rules. Did it have the effect of rendering the appointment wholly void so as to be completely ineffective or merely irregular, so that it could be regularised as and when the appellant acquired the necessary qualifications to hold the post of Labour-cum-Conciliation Officer. We are of the view that the appointment of the appellant was irregular since he did not posses one of the three requisite qualifications but as soon as he acquired the necessary qualification of five years experience of the working of labour laws in any one of the three capacities mentioned in Cl.(1) of R.4 in any higher capacity, his appointment must be regarded as having been regularised.16. The irregularity committed by the management of the college could be cured after allowing the Petitioner Prof. H.P.Gitte to undergo selection procedure as required under statute No.219. The appointment could not be regarded as totally void. There are lapses which can be condoned by the University within its discretion. The provisions of statute No.219 would set out methodology for selection to the post of Principal. The Petitioner - Prof. H.P.Gitte was then duly qualified and experienced for such appointment. The requirement of added educational qualification as NET/CET was subsequently introduced. At the relevant time such educational qualification was not a condition precedent for appointment to the post of Principal. The illegal deprivation of the petitioner - Prof. H.P.Gitte from the post of Principal has surely caused a stigma as well as humiliation to him. the approval of the University to such appointment could be sought by the management after making a request to constitute Selection Committee under statute No.219.20. We have already noted above that the resolution of management confirming the services of Gitte as Principal in regular scale dated 24.5.1993 was disapproved by the University which was communicated vide its letter dated 13.7.1993 extracted above. High Court was in error in not considering the true nature of the appointment of Gitte as Incharge, Principal. It is also relevant to notice that during pendency of the writ petition, regular selections on post of Principal took place twice. In regular selection which was held in 2001 after due advertisement Dr.A.R. Kurme was appointed. In the said selection Gitte did not participate. Dr.Kurme was appointed on 13.8.2001 who subsequently died on 27.12.2005. After death of Dr. Kurme, fresh advertisement was issued on 14.1.2006 for regular Principal. Dr.Ramchandra Kishanrao Ipper one of the appellants who has filed appeal against the order of the High Court was regularly selected and appointed as Principal on 24.03.2006, i.e. before the judgment of High Court.21. It is also relevant to notice that there was no challenge to the regular selections made during the pendency of the writ petition by Gitte or anyone else. When two regular principals have already joined and worked during the period when the writ petition remained pending, High Court committed error in directing for reinstatement of Gitte with 50% back wages. Direction of reinstatement itself was unfounded. Looking to the very nature of the appointment of Gitte who was only an Incharge, Principal in view of the subsequent development as noticed above, there was no question of direction of reinstatement of Gitte on the post of Incharge Principal.