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    IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 7215 of 2008

Ramesh Gajendra Jadhav …Appellant

Versus

Secretary, Late S.G.S.P. Mandal & Ors. …Respondents

JUDGMENT

Swatanter Kumar, J.

1. The services of Ramesh Gajendra Jadhav, the appellant  

herein, were terminated by Principal of the respondent college  

on 18th August, 1999 who, then filed an appeal before Shivaji  

University & College Tribunal, Pune, University Campus under  

Section  59(1)  of  Maharashtra  Universities  Act,  1994.   The  

grievance of the appellant was that he had been appointed as a  

regular lecturer of Geography in the said College and the oral  

termination was unjustified, contrary to Rules and without any  

basis.  On the contrary, the College as well as University  

ought to have permitted him to continue as a regular lecturer  

in the College.  The Tribunal, vide its judgment dated 21st  

July, 2004 found substance in the case of the appellant and  

while  accepting  his  appeal  the  order  of  termination  was  

quashed and set aside and he was ordered to be reinstated  

w.e.f. 15th September 2000 with full back wages.  The College

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as  well  as  the  Secretary  of  Sambhaji  Rao  Garad  Shikshan  

Prasarak  Mandal,   Mohol,  Solapur  District,  filed  a  Writ  

Petition in the High Court of Judicature at Bombay being Writ  

Petition No. 9935 of 2004, which the learned Single Judge,  

after  hearing  the  parties  and  vide  a  detailed  judgment  

accepted the Writ Petition by setting aside the order of the  

Tribunal and issuing certain directions.  The High Court held  

that the post of the lecturer in Geography was not meant for  

open  category  candidates  but  was  reserved  for  SC  category  

alone.   The  Court also  declined to  give advantage  to the  

present appellant on account of any mistake of the authorities  

concerned.   Merely, because the appellant was selected, the  

Court declined to accept the contention that the appellant had  

an  indefeasible  right  to  the  post.  Resultantly,  the  Court  

sustained the order passed by the College and the University  

authorities.

2.      Aggrieved by the judgment of the High Court dated 7th  

December,  2006,  the  appellant  filed  an  appeal  before  the  

Division Bench of the High Court of Judicature at Bombay,  

which was also dismissed vide order dated 6th June, 2007.  The  

Division Bench held as under:

“6. The  finding  arrived  at  by  the  learned  Single  Judge  was  based  on  the  record,  which  clearly  indicates  that  the  post  of  lecturer  in  Geography was reserved for S.C. candidate and not  for  the  candidate  from  open  category  and,  therefore, the Single Judge held that the decision  of the Tribunal was not justified while allowing  the appeal of the Management.

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7. The  learned  counsel  for  the  appellant,  submitted that for no fault of the appellant, his  services could not have been discontinued and the  findings of the School Tribunal are findings of  fact, which cannot be held to be perverse so as to  call  for  interference  in  exercise  of  writ  jurisdiction.

8. We find that the view taken by the learned  Single  Judge  is  based  on  the  correct  state  of  affairs which was ignored by the Tribunal, which  based its findings on the advertisement, pursuant  to which the appellant was selected, however, the  said advertisement was not correct.

9. The  learned  Single  Judge  has  rightly  observed that merely because the Authorities have  committed  an  error  in  the  matter  of  the  advertisement  of  the  post  and  though  it  was  approved by the University, was also not correct  and  the  University,  subsequently,  rectified  its  error by canceling the approval of the appellant.  The appellant has no case.  Therefore, we do not  find  any  merit  in  the  appeal.   The  appeal  is  accordingly dismissed.”

3. Aggrieved  by  the  reasoning  and  decision  of  the  

Division Bench, the appellant filed the present appeal.

4.            The controversy in the present case falls in a  

very  narrow  campus:   Whether  a  mistake  of  fact  rectified  

subsequently  in  relation  to  implementation  of  roaster  of  

reservation would be a sufficient reason for terminating the  

services of a person appointed under that mistaken impression?  

To answer this question, we need to notice the facts which  

have given rise to the present appeal.  

 5.           The college in question was established in the  

year 1991.  The Joint Director of Higher Education, Kohlapur  

Division  had  sent  a  letter  approving  the  schedule  of

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appointment of lecturer wherein one additional post of part  

time lecturer was sanctioned vide letter dated 6th October,  

1998.  On the basis of this letter, the College had written to  

the University on 5th December,1998 seeking its approval for  

the draft advertisement to be published for filling up the  

vacancy including the post of lecturer of Geography.  However,  

in the letter issued by the University granting approval to  

the post of lecturer for the subject of Geography was shown as  

part time in open category.  On that basis, advertisement was  

issued, which appeared in the newspaper, for filling up the  

vacant posts.  On 24th December, 1998, the college sent a  

letter  to  the  University  forwarding  the  copies  of  the  

advertisement and requesting for names of the persons to be  

appointed  by  Selection  Committee.   The  University  granted  

approval  to  the  schedule  of  posts  as  proposed  by  the  

management but in the letter dated 1st January,1999 approval  

was shown to be granted for the post of lecturer for the  

subject of Geography as full time lecturer.  After receiving  

this letter, the management of the college again wrote to the  

University bringing out this fact that there was a vacancy of  

part time lecturer in Geography, while the University granted  

approval to full time lecturer in that subject leading to some  

confusion.  In the meanwhile, pursuant to the advertisement  

issued, candidates including the appellant had applied for the  

post and interviews were held on 22nd February, 1999.  On 23rd  

February, 1999, the Selection Committee prepared its detailed

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proceedings clearly demonstrating that the post for which the  

appellant was selected was a permanent post in open category.  

On  the  recommendation  of  the  Selection  Committee,  the  

appellant  was  appointed  as  lecturer  in  the  subject  of  

Geography on probation vide letter of appointment dated 3rd  

March, 1999.  The appellant joined the post.  However, the  

University on 15th March, 1999, sent a letter stating therein  

that  earlier  advertisement  was  to  be  cancelled  and  new  

advertisement showing the post of lecturer in Geography as  

full time and reserved for SC category, is required to be  

issued.  In fact, at that point of time, the University also  

asked the College as to how the advertisement for appointment  

of part time lecturer was issued as the post was full time and  

reserved for SC category.  Vide their letter dated 12th July,  

1999, the College sent a detailed reply giving reference to  

all the events in response to which, the University, vide  

letter dated 18.8.1999 stated that those appointed on the post  

including the appellant must be treated as full time lecturer  

but only for the academic year 1999-2000 and in the meanwhile  

steps should be taken to fill up the vacancy keeping in view  

the direction that the post was reserved for SC category and  

it  was  a  full  time  post  of  lecturer  in  Geography.  The  

appellant  had  made  a  request  in  the  meanwhile,  submitting  

that he had been selected by a properly constituted Selection  

Committee and he should be given the appointment against a  

full  time  lecturer  post.   No  response  to  the  same  was

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received. The appellant filed a Writ Petition No. 1689/2000  

praying for quashing and setting aside the letter dated 18th  

August,1999 issued by the University giving approval only for  

the academic year 1999-2000.  This Writ Petition, when came up  

for hearing before the High Court, was dismissed vide order  

dated 22nd August, 2000.  In furtherance to the advertisement,  

which  appeared in the newspaper on 1st January 2001, amongst  

other persons Respondent No. 5 also submitted his application.  

Respondent  No.5  belonged  to  a  reserved  category  (SC),  was  

selected  and  appointed  as  lecturer  in  Geography  in  the  

respondent college.   Approval thereto was granted by the  

University on 2nd February, 2001.  Thereafter, the appellant  

was not permitted to serve which resulted in filing of the  

appeal before the Tribunal, as already noticed.   

 6.          There is no dispute before us that the post in  

question was full time post and was reserved for SC.  Once  

this fact is not disputed, the only question that remains is  

whether an indefeasible right was vested in the appellant by  

his selection against the advertisement issued earlier by the  

College.  The learned Single Judge of the Bombay High Court  

while setting aside the order of Tribunal held as under:

“20. It is then sought to be contended that no  fault can be found with the respondent no. 1 who had  bonafide believed in the advertisement issued by the  petitioners on 11th December, 1998 and had applied  for the post and on being interviewed, was issued  the order of the appointment and even the initial  appointment disclosed that his appointment was on  probation  for  two  years  which  disclosed  that  the

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appointment was in permanent vacancy.  Undoubtedly,  there was a mistake on the part of the petitioners  in that regard which was immediately brought to the  notice by the respondent No. 4.

21 Question then arises whether on account of  mistake of the petitioners, can the respondent no. 1  be penalized? It is well settled law that in case of  entry in service it has to be a lawful entry.  Any  irregularity  in  that  respect  cannot  create  any  vested  right  in  favour  of  the  employee  illegally  appointed,  irrespective  of  the  fact  whether  the  fault in that regard lies with the employee or the  employer.  Otherwise, under the pretext of fault on  the  part  of  the  employer,  every  employee  seeking  back  door  entry  may  illegally  seek  to  regularize  such entry in the service.  Being so, merely because  there was a fault on the part of the petitioners in  following  the  procedure,  on  that  count  the  respondent no. 1’s services cannot be regularized.  That will not ensure to benefit of the respondent  no. 1 to content that he cannot be penalized for the  fault  on  the  part  of  the  petitioners  in  not  following the proper procedure while filling up the  vacancy in relation to the post of Lecturer in the  subject of Geography.  In fact, it is not a matter  of  penalizing  the  respondent  no.  1;  rather  the  respondent  no.  1  cannot  seek  to  regularize  an  illegal act to have benefit on the pretext that the  fault lies with the petitioner in not following the  regular procedure.  The respondent no. 1 is to be  absolutely blamed for illegally availing the benefit  of such acts on the part of the petitioner.”

7. There can be no doubt that a post is determined to be  

a part time or full time depending on the work  load in a  

particular college.  The University, vide its letter dated 5th  

December,  1998,  had  referred  to  the  requirements  which  a  

college ought to satisfy.  In response thereto, the College  

had completed the requirement and had clearly stated that in  

Geography, there was one vacancy of part time lecturer which  

was  for  open  category.   This  had  been  approved  by  the  

University,  but  subsequently  it  was  noticed  that  the

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University  by  mistake  had  granted  approval  for  full  time  

lecturer in English and Geography, while the advertisement had  

indicated the vacancy of a part time lecturer in Geography.  

It is expected and desirable of the Authorities concerned to  

have corrected the mistake at that juncture itself.  However,  

because of  inter se correspondence between the University,  

College and the Director of Education, the matter got delayed  

and in the meanwhile the Selection Committee, on the basis of  

the approval letter issued by the University, selected the  

appellant as full time lecturer to the post  vide letter dated  

3rd March, 1999. The University had informed the College that  

as  per the  roaster, the  full time  regular vacancy  of the  

College  has  to  be  given  to  SC  category  candidate  and,  

therefore, earlier advertisement should be cancelled and fresh  

advertisement should be issued.  It is a settled principle of  

law that a vacancy which has been reserved for SC category  

cannot be converted to an open category unless and only if  

specified and that too only if the rules permit.  Nothing of  

this kind has been placed on record and in fact no submission  

in that behalf has been made by any of the parties before us.  

Once the post was reserved for SC category, the Authorities  

could  only  fill  up  the  said  post  by  a  reserved  category  

candidate.  No advertisement for reserve candidate had been  

issued earlier, as such, none would have applied for the same  

being a post for open category and this mistake vitiated the  

entire  selection  process.   As  already  noticed,  fresh

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advertisement was issued and Respondent No. 5 was appointed to  

the said post, resulting in termination of services of the  

present appellant.  Of course, to some extent, this mistake  

was ought to be corrected at least partially by University by  

giving the approval to the full time post for one academic  

year  1999-2000  in  favour  of  the  appellant.   No  doubt,  

appellant  has  been  subjected  to  some  inconvenience  and  

prejudice and his remedy for damages or any other relief, as  

he may deem fit and proper, are open to be taken but this is  

not a case where interference of this Court is called for  

under Article 136 of the Constitution.  We must notice that in  

the needs of employments, particularly, in the Institutions  

which are aided and are under the control of the State or  

statutory bodies, adherence to the concept of equality and  

avoidance of discrimination is an essential feature.   In  

other  words,  the  respondents  were  expected  to  act  in  

consonance  with  the  constitutional  mandate  contained  under  

Articles 14 and 16 of the Constitution of India.   We find  

that the Selection Committee was at fault in selecting the  

candidate  as  full  time  lecturer,  while  admittedly  the  

advertisement had been given for a post of part time lecturer  

in Geography.   It is a matter of common knowledge that the  

eligible candidates, if knew, that the post was that of ‘full  

time  lecturer  in  Geography’  would  have  applied  in  larger  

number and even with better qualifications.   In other words,  

number  of  candidates  have  been  denied  an  opportunity  of

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competing  for this  post.   It  would add  arbitrariness or  

unfairness to the entire process of selection. The appointment  

of  the  appellant,  even  if  otherwise,  in  accordance  with  

procedure would stand vitiated on this ground alone.   It is a  

matter of concern that the post which was advertised as part  

time was treated as full time, that too under the general  

category only on the pretext that the University had written a  

letter that the post of Geography lecturer was full time while  

completely  ignoring  the  stand  of  the  College  when  it  had  

sought  clarification  from  the  University  to  remove  the  

confusion created by this stand.   Thus, it was not a case  

where  post  of  full  time  lecturer  in  Geography  in  general  

category was available.   It was neither desirable nor fair  

for all the Authorities concerned to make this appointment in  

the manner in which it has been done, even if the Selection  

Committee had recorded it minutes to that effect.  Viewed from  

this angle as well, we do not think it was a case, where we  

can find any error in the judgment of the High Court.

8. Another  factor,  which  has  to  be  considered  by  the  

Court, is that in the  Writ Petition No. 1689 of 2000 filed by  

the appellant, which was dismissed by the High Court, he could  

have raised these issues in that Writ Petition but the point  

of resjudicata/constructive resjudicata  had not been decided  

against  the  appellant  by  the  learned  Single  Judge.   The  

appellant could have challenged the order of High Court and  

even raised the issue with regard to reservation or his deemed

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regular appointment as full time lecturer in Geography in that  

writ petition itself.   However, the advertisement was issued  

for filling up the reserve vacancy  on 1st January, 2001.  

Therefore, we cannot find fault with the appellant to the  

extent that appeal filed by him could be dismissed on that  

ground.  Be that as it may, a detailed discussion on this  

subject would be uncalled for in the facts  and circumstances  

of the present case.  The fact of the matter remains that  

there was a collective error on the part of the University and  

College and more on the part of the University that led to  

this situation.  But this mistake cannot vest indefeasible  

legal right in the appellant to be appointed or deemed to have  

been  appointed  against  a  reserve  category  while  he  is  a  

candidate, admittedly, belonging to the open category and was  

so appointed by the Selection Committee.

9.        For these reasons, we find no merit in the appeal  

and the same is dismissed.  Parties are left to bear their own  

costs.

..................J.  [ DR. B.S. CHAUHAN ]

.................J.       [ SWATANTER KUMAR ]

New Delhi July 22, 2010.