‘Reportable’ IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1483 OF 2005

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

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.    

2

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  

3

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  

4

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  

5

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  

6

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  

7

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  

8

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.  

9

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.

10