M.S. Patil vs Gulbarga University And Ors

Dr. M.S. Patil Appellant

Versus

Gulbarga University and Ors. Respondents

JUDGMENT

AFTAB ALAM,J.

1. This case sadly illustrates how interim orders passed by the court

coupled 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 passage of time

the equity was now firmly on his side. The appellant in this case was

wrongly appointed to the post of Reader in the Department of Kannada in

Gulbarga University. On the basis of the interim orders passed by the Court 2

and evidently helped 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.

2. The manner in which the case has progressed to reach the present stage

may be stated thus. On March 30, 1992 the Gulbarga University, Gulbarga

invited applications for appointment to different posts. One of the advertised

posts was of Reader in Kannada. In the remarks column of the notification, it

was clearly shown as reserved for `Group B' category. It needs to be stated

here that a plain copy of the notification is enclosed with the paper book as

part of Annexure PI. 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 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 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.

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3. In response to the notification, 11 applications were 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 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.

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 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 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 4

of Appointment interviewed all the candidates and selected respondent No.2

(appellant herein, who belonged to the General category) on 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 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 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 Department (respondent No.3 in the writ petition)

and, therefore, he ought not to have participated in the selection to the post

of Reader in Kannada. On behalf of the present appellant, it was also

pleaded before 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 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 5

to fill up the post of Reader in Kannada calling for fresh applications and to

complete the selection within 6 months from the date of the 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.1303/2000). A division

bench of the High Court, dismissed the appeal by judgment and order dated

June 2, 2004. The 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 the appointment of the appellant who belonged to the

general merit category to a post reserved for `Group B' category the division

bench made the following observations:

"We may observe that there is not material to support this contention to come to the conclusion that the selection 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 considering General Merit candidate for such post. But we do not find 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 6

consideration the reservation policy and the qualifications required and also 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 unfair to him if he is forced to go back

to the college from where he had resigned to join the post 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 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.

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.

9. In the meanwhile, there were some intervening developments 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 7

by which the appellant was 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 of the

interview, held on August 20, 2004 the Board of appointment selected and

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 approval was not without qualification.

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 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 appeal, it is

stated as follows:

"It is also relevant to state that from the information derived from the University under the Right to Information Act, no disciplinary proceedings against Dr. Mallamma Ganti was pending as on the date of her 8

selection and yet she was not allowed to join the said post merely to show undue favor to the appellant herein as the University due to malafide reasons was determined to show undue favour to the appellant herein."

The above statement is not controverted either by the appellant or on behalf

of the University. Thus, the appellant was allowed 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.

10. Once the facts of the case are narrated, there remains hardly anything

to adjudicate upon. The facts of the case lead 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, in the selection process. In

those facts and circumstances, all that is needed is to dismiss the appeal

without further ado.

11. But at this stage once again a strong appeal is made to let the appellant

continue on the post where he has already worked for over 17 years. Mr.

Patil, learned senior counsel, appearing for the appellant, submitted that

throwing him out after more than 17 years would be very hard and unfair to 9

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.

12. 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 in final disposal of the mater, the appellant has been

occupying the post, for all these years that lawfully belonged to someone

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 continue on the post. By notification

dated August 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 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.

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13. 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

notification should be completed within six months from today.

14. In the result, the appeal is dismissed with costs, quantified at

Rs.50.000.00 (rupees fifty thousand only).

....................................J (AFTAB ALAM)

....................................J (R.M. LODHA)

New Delhi, August 27, 2010.