B.T.Krishnamurthy vs Basaveswara Education Sty.& Ors

4. The facts of the case lie in a narrow compass:-

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’). 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 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 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 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 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 alternative remedy of appeal available before the Education Appellate Tribunal (in short, the ‘Tribunal’).

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, 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 Society to reinstate respondent No.1 in service w.e.f. 23.07.1995 and to pay him all pecuniary benefits w.e.f. 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.

10. 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 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 order dated 11.07.2011. Hence, these appeals.

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.

14. The Tribunal proceeded on the basis of some entries made in different registers of the College and the certificate 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 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 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 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 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 held as illegal and improper. On these findings, the Tribunal passed the following order:

16. Both the appellants preferred intra-court appeals before the Division Bench of the High Court against the order passed 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 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 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.

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 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 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:-

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 the impugned orders are set aside.