STATE OF ODISHA & ORS. versus KAMALINI KHILAR & ANR. on 28 April 2021

[2021] 4 S.C.R. 221

STATE OF ODISHA & ORS.

v.

KAMALINI KHILAR & ANR.

(Civil Appeal No.1694 of 2021)

APRIL 28, 2021

[UDAY UMESH LALIT AND K. M. JOSEPH, JJ.]

Service Law: Termination from service – Claim for back wages– On facts, appointment of Government teacher – Respondent No.2 obtained higher rank than respondent No. 1 in the Category ofS.E.B.C (Women) – However, respondent no. 1 appointed sinceappointment letter could not be delivered to respondent no. 2 beingwrongly addressed and apparently, respondent no. 2, did not join –Application by respondent no. 2 before the tribunal – Tribunal issuedappointment order in favor of respondent no. 2 while terminatingappointment of respondent no.1 and also issued direction forcreation of supernumerary post – However, the High Court set asidethe direction for creation of the supernumerary post and thereafter,directed the appointment of the respondent No. 1 in any vacancyavailable –On appeal, held: In the case of wrongful termination ofservice reinstatement with the continuity of service and back wagesis the normal rule – On facts, it was clear that the person appointedin place of the respondent no.2 was respondent no. 1 – Respondentno. 1 has only a few months for attaining the age of superannuationand has not secured any alternative employment and also has notbeen able to work based on the direction of the tribunal or of theHigh Court – Furthermore, nearly two decades have gone by andfailure to afford opportunity of being heard to respondent no 1cannot have adverse effect – More so, the High Court has not foundthat the termination of the service of the respondent no. 1 was ab initiovoid or illegal as such – High Court in fact rightly set aside thedirection of the tribunal to reinstate by creating a supernumerarypost – There was no basis for the High Court to have thereafterdirected the appointment of the respondent no. 1 in any vacancyavailable – Termination of the service of the respondent no. 1 wasunavoidable in the light of the binding order of the tribunal – Thus,

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Athe claim of respondent no. 1 for back wages from the date oftermination is untenable – Order of the High Court to the extentimpugned is set aside.

Allowing the appeal, the Court

HELD: 1.1 The Order of the Tribunal passed in O.A. No.B650 of 2000 was binding on the department. This Court cannot atthis stage sit in judgment over the correctness of the order passedin the said O.A. Apparently, though the Respondent No. 2 havingobtained higher rank than the Respondent No. 1 in the Categoryof S.E.B.C (Women) had been favoured with an appointmentCletter, it was not delivered to her as it was addressed wrongly.The Respondent No. 2, therefore did not join as apparently, shedid not receive the appointment order. At least these are thefindings of the Tribunal. In fact, the matter had engaged theattention of the 1st Appellant (govt) and it took a decision dated24.02.2000 therein. The Tribunal directed that if the post hadDbeen filled up the District Inspector of schools was to carry outthe direction, that is dispense with the service of the candidatewho had been appointed in place of Respondent No. 2. TheGovernment had directed that the junior most candidate wouldbe removed in order to enable the Respondent No. 2 to join. TheEdirection of the Tribunal has become final. [Para 13][232-D-F;233-B-C]

1.2 While it may be true the Respondent No. 2 was not aparty to the O.A. in law nothing prevented her from challengingthe said order. It may not be open to her to contend that as sheFwas not a party, the said order cannot be and should not beimplemented in letter and spirit. It is an order passed by a Tribunalwhich had jurisdiction in the matter. The finding that theRespondent No. 2 could not join because of the letter ofappointment being issued in the wrong name cannot be open tochallenge. The Tribunal was therefore, setting right an illegalityGand injustice caused to Respondent No. 2. There is no disputethat there were only 16 vacancies to be filled up of the categoryof S.E.B.C. (Women). For complying with the order of the Tribunalthe Appellants had to dispense with the service of the personappointed in place of Respondent No. 2. [Para 14][233-C-F]H

1.3 Under the resolution and procedure adopted, separatelists were prepared for various categories. Vacancies wereearmarked for different groups. Merit list was also based on thisclassification. The Respondent No. 1 figured in the merit list atS.no. 22 for the category S.E.B.C. Women. The surest way tofind out whether the termination of service of Respondent No. 1was in tune with the direction issued by the tribunal in the earlierO.A. filed by the Respondent No. 2 is to find out as to whetherthe Respondent No. 1 would have secured the appointment, ifthe appointment letter was issued in the name correctly of theRespondent No. 2 and she had joined on the said basis. If theRespondent No. 1 would not secure the appointment if theRespondent No. 2 had so joined and in other words, theappointment of the Respondent No. 1 was only because of thenon-joining of the Respondent No. 2, then it is the RespondentNo. 1 who is the person who was appointed in place of theRespondent No. 2 within the meaning of the order passed in O.A.No. 650 of 2000. [Para 15][233-F-H; 234-A-B]

1.4 This is not a case involving disciplinary proceedingsagainst Respondent No. 1. No stigma is attached to theRespondent No. 1. The whole exercise was necessitated no doubtas a result of a mistake committed by the Appellants in notsending the appointment letter at the correct address toRespondent No. 2. In view of the fact that order O.A. No. 650 of2000 had become final the Appellants were obliged to complywith the order. If they had nothing to offer by explanation to thecase of the Respondent No. 2 that she was not served with theletter of appointment, the Respondent No. 1 would not be justifiedin contending that the Appellant should have challenged the orderof the Tribunal. [Para 15][234-B-D]

1.5 Having regard to the Resolution under which the entireappointment were carried out, the matter is to be governed bythe separate merit lists which were prepared. In the nature ofthe facts which make up the dispute in this case, it only meansthat the Respondent No. 1 was the junior most in the category ofS.E.B.C (Women). The order of the Tribunal to be complied with ABCD

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Acontemplated dispensing the service of the candidate who wasappointed in place of the Respondent No. 2. What is clear is thatthe person appointed in place of the Respondent No.2 was theRespondent No. 1. [Para 16, 17][234-D-F]

1.6 In such circumstances it cannot possibly be held thatBother candidates who may have secured lesser marks but who itmust be noted were treated as falling in different categories forwhich separate list were prepared, should have been shown thedoor to comply with the order of the Tribunal. The RespondentNo. 1 was considered under the SEBC (Women) as being a woman,she could aspire with the age relaxation. [Para 18][235-B-C]

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1.7 The Respondent No. 1 has only a few months forattaining the age of superannuation. It may be true that she hasnot secured any alternative employment as stated in her affidavitand also projected in the written submissions. She has also notbeen able to work based on the direction of the Tribunal or of theDHigh Court. [Para 19][235-D-E]

Facts

1.8 It is no doubt true that the Respondent No. 1 was offeredappointment and was appointed. However, the Appellants sufferedan order by a competent Tribunal which it was duty bound toimplement. It would be remiss if the principles of natural justiceEwere to be discarded as inapplicable. No doubt there was no needto hold any enquiry as the termination was not on disciplinarygrounds. No stigma is attached to Respondent No. 1. But a noticegiven to the Respondent No. 1 as to why in terms of the order ofthe Tribunal the Respondent No. 1 should be treated as the personFwhose services was to be dispensed with should have been issued.However, on the materials placed before the Court, with 16vacancies alone earmarked for S.E.B.C (Women), and theRespondent No. 2 being the 16th and the last of the candidatesentitled in the said Category, not joining in the circumstancesresulting in the Respondent No. 1 being appointed and the orderGof the Tribunal being binding on the Appellants, in the instantcase, the failure to afford an opportunity to the Respondent No.1to show cause as to why her services should not be terminatedcannot be held to be fatal. This Court cannot loose sight of the H

fact nearly two decades have gone by and only for the reason thatthe Respondent was not offered an opportunity of being heard inthe facts of this case, the order of the High Court in directing theappointment of the Respondent No. 1, cannot be supported. It isnot as if the High Court has found that the termination of theservice of the Respondent No. 1 was ab initio void or illegal assuch. The Court in fact set aside the direction of the Tribunal toreinstate by creating a supernumerary post. This is not challengedby Respondent No. 1. It directed only that the appointment ofthe Respondent No. 1 be made in the vacancy. Therefore, theclaim of Respondent No. 1 for back wages from the date oftermination is at any rate clearly untenable. [Para 23][237-B-G]

1.9 In the case of wrongful termination of servicereinstatement with the continuity of service and back wages isthe normal rule. It was subject to the qualification that the Courtmay inter alia take into consideration the length of service andthe nature of misconduct if any proved, the financial condition ofthe employer and similar other factors. [Para 24][237-G-H;238-A-B]

1.10 The High Court rightly set aside the direction forcreation of the supernumerary post. There is no basis for theHigh Court to have thereafter directed the appointment of theRespondent No. 1 in any vacancy available. The termination ofthe service of the Respondent No. 1 was unavoidable in the lightof the binding order of the Tribunal in O.A. No. 650 of 2000.Consequently, the order of the High Court to the extent impugnedis set aside and the order passed in the O.A. no. 917 of 2002 filedby the Respondent No. 1 will stand set aside. [Paras 24, 25][238-B-D]

1.11 It is made clear that if the cost of Rs. 50,000 orderedas condition to condone delay in filing the SLP is not paid asaforesaid the impugned judgment would stand, the applicationfor condoning delay would stand dismissed and the leave grantedwould stand revoked and this judgment would stand recalled. Ifthe cost is deposited, the same can be withdrawn by theRespondent No. 1. [Para 26][238-D-E]

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ABasudeo Tiwary vs. Sido Kanhu University and Ors.AIR 1998 SC 3261 – distinguished.

Deepali Gundu Surwase vs.Kranti Junior AdhyapakMahavidyalaya (D. Ed.) and Ors. (2013) 10 SCC 324– relied on.

B

Union of India and Ors. vs. Dalbir Singh and Ors (2009)7 SCC 251; Delhi Transport Corporation vs.D.T.C.Mazdoor Congress and Ors. AIR 1991 SC 101;Surendra Kumar Verma and Ors. vs. Central GovernmentIndustrial Tribunal-Cum-Labour Court, New Delhi andCOrs. (1980) 4 SCC 443; Hindustan Tin Works Pvt. Ltd.vs. The Employees of Hindustan Tin Works Pvt. Ltd. andOrs. (1979) 2 SCC 80 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICATION : Civil Appeal No. 1694of 2010.

From the Judgment and order dated 05.12.2019 passed by theFHigh Court of Orissa at Cuttack in W. P. (C) No. 32419 of 2011.

Gaurav Khanna and Ms. Nikita Kalia, Advs. for the Appellants.

Pranaya Kumar Mohapatra, Srisatya Mohanty, SPM Tripathi, V.K.Shukla and Satish Kumar, Advs. for the Respondents.

GThe Judgement of the Court was delivered by

K. M. JOSEPH, J.

1. There is a delay of 247 days in filing the SLP. Having consideredthe matter, we are inclined to condone delay but on condition that a sumof Rs. 50,000 is paid as costs to the Respondent No. 1. Accordingly, theH

application to condone delay is allowed subject to payment of Rs. 50,000to the Respondent No. 1 by the Appellant depositing the same in theRegistry within 4 weeks from today. Leave granted.

2. The Appellant No. 1, namely the State of Odisha, passed aresolution dated 12.03.1996 prescribing the procedure for recruitmentof Government teachers in primary schools. The Appellant No. 3 namelythe District Inspector of Schools, Bhadrak-II, Bhadrak had to determinethe number of vacancies to be filled up through direct recruitment.Appellant No. 3 had to also determine the number of vacancies whichwere required to be reserved for each reserved category. It is the caseof the Appellants that based on the same, on 29.07.1996 by letter dated29.07.1996, it was communicated to the Respondent No. 1 that her namewas sponsored by the District Employment Exchange for the post ofprimary school teacher. She was called upon to submit her applicationalong with her documents. The Respondent No. 1 was directed to attendthe viva-voce examination. A merit list was made. The Respondent No.1 secured the 22[nd] position in the SEBC (Women) Category. There wereonly 16 vacancies which were to be filled by SEBC (Women) Categorycandidates. Respondent No. 1 was favoured with an order of appointmentdated 04.04.1998. She was issued such appointment according to theAppellants on the basis that one of the successful candidates, namelythe Respondent No. 2 who secured the 16th position could not join withintime. The Respondent No. 1 joined based on the joining letter dated20.04.1998.

3. While so complaining that she was not served with theappointment order and that order was issued in a wrong name,Respondent No. 2 filed representation which based on an order in anapplication before the Tribunal was disposed of with certain directionsby the 1[st] Appellant O.A No. 650 of 2000 was thereafter filed byRespondent No. 2 before the Hon’ble Orissa Administrative Tribunal.The Tribunal allowed the O.A. by order dated 21.09.2001.

The operative part reads as follows:-

“For the reasons indicated above, we allow the Original Applicationwith the direction to the State Respondent in General and D.I of Schools(O.P. No. 3) in particular to issue appointment order in favour of theapplicant within one month from the date of receipt of the copy of thisorder and if the post has been filled up by the D.I of Schools is to carry AB

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Aout direction issued by Respondent No. 1 under Annexure-6 in dispensingwith the service of the candidate who had been appointed in place ofMinati Pradhan, the applicant.”

4. This led to order dated 16.04.2002 which was an order ofappointment of Respondent No. 2 by the Appellant No. 3 and anotherBorder of the same date by which the services of the Respondent No. 1came to be terminated. This led to the present round of litigation, namelyO.A. No. 917 (C) of 2002 filed by the Respondent No. 1 before thetribunal. The Tribunal after exchange of pleadings allowed the applicationfiled by the Respondent No. 1.

C5. We may refer to the following part of the order:- “In so far as, it is obvious that Smt. Snehalata Nayak who hassecured less marks and did not figure in the physically handicapped list,has been given appointment under the “physically handicapped” quotaand has been allowed to continue along with several others, includingDS.E.B.C (male) and General (male) candidates who have secured lessmark than the applicant, (Ref. Letter No. 3235 dtd. 22.10.2001 or D.I.of Schools, Bhadrak-II). Moreover, at least a show-cause notice shouldhave been issued and an opportunity to show-cause before dischargeallowed to the applicant even if for argument sake only it is acceptedthat her service can be terminated, as decided by the Hon’ble ApexECourt in the case on Basudeo Tiwari-Vrs-Sido Kandhu University andothers (AIR,1998 SC 3261). As no show-cause notice was issued andno opportunity to be heard was allowed and the principle of ‘Audi alterampartum’ was not observed, even if the applicant is deemed to be thejunior most in the S.E.B.C (Women) list, her termination is illegal. Hence,FAnnexure-6, i.e., her termination order vide office No. 981 dtd. 14.4.2002,is quashed. The applicant be reinstated in service immediately with allattendant service benefits by creating another supernumerary post ifnecessary, as termination of her service was not as per the prescribedprocedure or in accordance with the law of the land.”

G6. It is this order, which led to the passing of the impugned orderby the High Court. By the impugned judgment, the High Court quashedthe direction of the Tribunal to reinstate the Respondent No. 1 by creatinga supernumerary post. Thereafter, it was however ordered as follows:- “However, since the vacancy is available, the petitioners will giveappointment to opposite party No. 1 Smt. Kamalini Khilar against one ofH

such vacancies available in Bhadrak district within a period of four weekshence, the writ petition is allowed the aforesaid extent.”

7. It is feeling aggrieved by the judgment that the present appealhas been filed. We heard Learned Counsel for the Appellants andRespondents No. 1 and 2 as well.

Submission of Appellants

8. The Learned Counsel for the Appellants would complain thatthe High Court while granting limited relief of quashing the direction tocreate a supernumerary post, erred in the issuance of the direction toappoint the Respondent No. 1 in the vacancy. This is after havinginterfered with the order of the Tribunal as noted. The Respondent No.1 came to be appointed only on the basis that Respondent No. 2 whoadmittedly had secured higher rank than the Respondent No. 1 had notreported for joining. It was only in compliance with the order of theTribunal, that the services of Respondent No. 1 had to be terminated. Itis further contended that as things stand there is no provision for makingany appointment as the method of appointment has been altered toabsorption from trained junior teachers.

9. Reliance was placed on the terms of the Resolution dated 12[th]March, 1996. It is contended that the selection was made based on thesame. The Employment Exchange sponsored eligible candidatesseparately for general vacancies and for each reserved categories. It iscontended that the sports person or physically handicapped person fromany Category could apply as much. Reference is made to clause 8 ofthe Resolution. It is contended that the maximum age as on the 1[st] ofJanuary of the year of requisition was fixed as 32 years. Relaxation washowever given by 5 years for women candidates interalia. Separate listwas to be prepared for each of the reserved categories. Separate selectlist of the candidates had to be prepared for the vacancies notified inrespect of that category of candidates under clause 16 of the Resolution.Clause 17a provided that the District Inspector was to make appointmentagainst the sanctioned posts strictly in the order in which the namesoccurred in the respective select lists. 16 vacancies were notified forthe category of S.E.B.C. (Women). It is pointed out that the Respondentwas born on 15.07.1961. She was 34 years, 5 months and 17 days as on01.01.1996. She therefore, got the relaxation as she had applied asS.E.B.C (Women) in the Category. She secured the 22[nd] rank and theRespondent No.2 was at S.no. 16.

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A10. There is no challenge at any point to the resolution dated12.03.1996 or the selection procedure. The last person to get anappointment from the list of S.E.B.C (Women) Category was RespondentNo.1. In order to comply with the directions of the Tribunal in O.A. No.650 of 2000, the services of the Respondent No. 1 were dispensed with.It was only the Respondent No. 1 who got the appointment against oneBof the vacancies notified for S.E.B.C (Women) Category because theRespondent No.2 was not served the appointment order. If theRespondent No.2 had been served the appointment letter, then theRespondent no. 1 would not have been given an appointment based onher position in her merit list for S.E.B.C (Women) Category. TheCRespondent No. 1 never objected to the method of preparing the selectlists and is therefore not entitled to raise objection now to the preparationof the separate list. Reference is made to judgment of this Court inUnion of India and Ors. vs. Dalbir Singh and Ors[1]. The RespondentNo.1 was always aware of the separate list for each Category. She gotthe benefit of relaxation of age by applying as a S.E.B.C (Women)Dcandidate. Her non-inclusion in any other list or the selection procedureinteralia was never challenged by her. It is pointed out that in the writtensubmission of the Respondent No. 1, a misleading statement is madethat the vacancy occurred prior to 03.06.1996 which is why thegovernment proceeded to fill up the vacancy by calling upon theRespondent No. 1. It is pointed out that the letter written by the 3[rd]EAppellant to the 2[nd] Appellant was about complying with the order of theTribunal in the application filed by the Respondent No. 2. The 3[rd] Appellantrefers to the vacancy having being filled by his predecessor. All thevacancies covered by the selection process in question occurred prior to30.06.1996. It is also further contended that the none of the decisionsrelied upon by the Respondent No.1 are relevant having regard to theFcircumstances surrounding the appointment of the Respondent No.1 andthe specific directions issued by the Tribunal.

The Case of Respondent No.1.

11. There is a violation of principles of natural justice. Thetermination of her services is wholly illegal arbitrary and capricious. TheGAppellants delayed the matter. The Respondent No.1 was a permanentemployee having impeccable four years of continuous service record.The finding that her services was terminated in view of the order dated21.09.2001 is erroneous and not sustainable having regard to the followingaspects.H1 (2009) 7 SCC 251

The Respondent No. 1 was not a party in the O.A. filed by theRespondent No. 2. Secondly, the Tribunal had not directed removal ofthe Respondent No. 1 but only directed the removal of the person whohad taken the place of the Respondent No. 2. It is pointed out that atPage no. 64 of the SLP Paper Book which is the letter dt. 22.01.2001written by the 3[rd] Appellant and also referring to the list of junior mostcandidates of different categories appointed as primary school teachersat S.No. 3 the candidate is a general category male who had secured109.10 marks. S.No. 5 is candidate from SEBC (Male) who secured110.75 marks.

At S.No. 7 Jagatanand Panigrahi is specifically earmarked asPhysical Handicapped Category but S.No. 8 named as Snehalata Nayakwho is specifically earmarked at S.No. 31 of SEBC Category and securedonly 110.36 marks but is given appointment as PH illegally whereas shebelongs to SEBC Category. The Respondent No. 1 belongs to SEBCCategory had secured 112.75 marks which was more than what theabove persons obtained.

Therefore, the Respondent No. 1 was not the person whoseservices was to be terminated in terms of the order of the tribunal in theearlier proceedings, it is contended.

12. It is contended that the Respondent No. 1 was not party to theearlier proceeding. The order adversely affecting the Respondent No. 1should not have been passed and the government should have challengedthe order passed in the earlier proceeding. There is the bar under Section115 of the Indian Evidence Act, 1872. In other words, there is estoppel.Reliance is placed on the judgements of this court in Delhi TransportCorporation vs. D.T.C. Mazdoor Congress and Ors.[2], Surendra KumarVerma and Ors. vs. Central Government Industrial Tribunal-Cum-LabourCourt, New Delhi and Ors.[3] and Deepali Gundu Surwase vs. KrantiJunior Adhyapak Mahavidyalaya (D. Ed.) and Ors.[4] . Reliance is alsosought to be placed on the judgements of this Court in Hindustan TinWorks Pvt. Ltd. vs. The Employees of Hindustan Tin Works Pvt. Ltd.and Ors.[5] and Basudeo Tiwary vs. Sido Kanhu University and Ors.[6]

2 AIR 1991 SC 101

3 (1980) 4 SCC 443

4 (2013) 10 SCC 324

5 (1979) 2 SCC 80

6 AIR 1998 SC 3261

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SUPREME COURT REPORTS

AThere were persons who secured lesser marks than theRespondent No.1 who are allowed to be retained in service and it wasthe Respondent No. 1 who was harassed and victimised. The delay inlitigation is solely attributed to the government. There is a delay of almost7 years in filing reply by the government. After the passing of the orderby the Tribunal to reinstate the Respondent No. 1 with all service benefitBit woke up only when contempt proceeding was initiated and the orderwas challenged only after a lapse of two years. The career of theRespondent No. 1 was spoiled due to the illegal termination. She couldnot properly bring up her children and spent the entire period of litigationin distress and financial hardship. Had she been continued she wouldChave become head mistress now. She being a lady and married womanresiding in rural area she could not get any employment elsewhere dueto want of the same in the locality and affidavit is also filed indicatingthat she could not get suitable employment elsewhere.

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13. The Order of the Tribunal passed in O.A. No. 650 of 2000was binding on the department. We cannot at this stage sit in judgmentover the correctness of the order passed in the said O.A. Apparently,though the Respondent No. 2 having obtained higher rank than theRespondent No. 1 in the Category of S.E.B.C (Women) had beenEfavoured with an appointment letter, it was not delivered to her as it wasaddressed wrongly. The Respondent No. 2, therefore did not join asapparently, she did not receive the appointment order. At least these arethe findings of the Tribunal.

In fact, the matter had engaged the attention of the 1[st] AppellantF(govt) and it took a decision dated 24.02.2000 therein. The decision ofthe Government as extracted in the order of the Tribunal reads as follows:- “I am desired to invite a reference to the Order Memo No. 106/OAT, dated 07.01.2000 of the Hon’ble OAT, Bhubaneswar on the subjectnoted above. It had been reported by the D.I. of Schools, Bhadrak-II inGhis letter No. 388, dated 31.01.2000 with copy to you in Memo No. 389,dated 31.01.2000 that though one Minati Pradhan was selected and is tobe appointed, but the appointment order was dispatched in the name ofMinakhi Pradhan. Hence, before taking steps to comply with the orderof the Tribunal to appoint Minati Pradhan, please check the fact in theOffice of D.I. of Schools, Bhadrak-II to ascertain whether any otherH

person named Minakhi Pradhan has been appointed on the basis ofincorrectly addressed letter. If yes, the applicant in the writ petition willjoin in her place if not the junior most candidate will be removed to lether join unless if Government decides to permit the applicant to join in apost subsequently fallen vacant.”

The Tribunal directed as already noted that if the post had beenfilled up the District Inspector of schools was to carry out the directionof the Respondent No. 1 which we have extracted that is dispense withthe service of the candidate who had been appointed in place ofRespondent No. 2. Interestingly, we may notice that the Governmenthad directed that the junior most candidate will be removed in order toenable the Respondent No. 2 to join. The direction of the Tribunal hasbecome final.

14. While it may be true the Respondent No. 2 was not a party tothe O.A. in law nothing prevented her from challenging the said order. Itmay not be open to her to contend that as she was not a party, the saidorder cannot be and should not be implemented in letter and spirit. It isan order passed by a Tribunal which had jurisdiction in the matter. Thefinding that the Respondent No. 2 could not join because of the letter ofappointment being issued in the wrong name cannot be open to challenge.The Tribunal was therefore, setting right an illegality and injustice causedto Respondent No. 2. There is no dispute that there were only 16vacancies to be filled up of the category of S.E.B.C. (Women). Forcomplying with the order of the Tribunal the Appellants had to dispensewith the service of the person appointed in place of Respondent No. 2.Therefore, the only question which survived for consideration is whetherit is the Respondent No. 1 who was appointed in place of the RespondentNo. 2.

15. It would appear to be clear that under the resolution andprocedure adopted, separate lists were prepared for various categories.Vacancies were earmarked for different groups. Merit list was also basedon this classification. The Respondent No. 1 figured in the merit list atS.no. 22 for the category S.E.B.C. Women. The surest way to find outwhether the termination of service of Respondent No. 1 was in tunewith the direction issued by the tribunal in the earlier O.A. filed by theRespondent No. 2 is to find out as to whether the Respondent No. 1would have secured the appointment, if the appointment letter was issuedin the name correctly of the Respondent No. 2 and she had joined on the A

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Asaid basis. If the Respondent No. 1 would not secure the appointment ifthe Respondent No. 2 had so joined and in other words, the appointmentof the Respondent No. 1 was only because of the non-joining of theRespondent No.2, then it is the Respondent No. 1 who is the personwho was appointed in place of the Respondent No. 2 within the meaningof the order passed in O.A. No. 650 of 2000.B

This is not a case involving disciplinary proceedings againstRespondent No. 1. No stigma is attached to the Respondent No. 1. Thewhole exercise was necessitated no doubt as a result of a mistakecommitted by the Appellants in not sending the appointment letter at thecorrect address to Respondent No. 2. In view of the fact that orderCO.A. No. 650 of 2000 had become final the Appellants were obliged tocomply with the order. If they had nothing to offer by explanation to thecase of the Respondent No. 2 that she was not served with the letter ofappointment, the Respondent No. 1 would not be justified in contendingthat the Appellant should have challenged the order of the Tribunal.D

16. We find merit also in the contention of the Appellants thathaving regard to the Resolution under which the entire appointment werecarried out, the matter is to be governed by the separate merit lists whichwere prepared. In the nature of the facts which make up the dispute inthis case, it only means that the Respondent No. 1 was the junior most inEthe category of S.E.B.C (Women). The order of the Tribunal to becomplied with contemplated dispensing the service of the candidate whowas appointed in place of the Respondent No. 2.

17. It may not be possible to find that any person other than theRespondent No. 1 was the candidate who was appointed in place of theFRespondent No. 2. Both the Respondent No. 2 and the Respondent No.1 were considered for appointment from the Category of S.E.B.C(Women) for which Category, 16 vacancies were earmarked. The meritlist of SEBC (female) (page 49) shows that the Respondent No. 2 with117.46 marks was at the 16[th] position. Snehalata Nayak is no doubt atSerial No. 31 of SEBC (Women) list. But she is shown in the categoryGof P.H in the list of junior most of different categories in letter dt.22.11.2001 sent by the Appellant No. 3. The person at Serial No.7Jagatanand Panigrahi is shown P.H. has secured lesser marks thanSnehalata Nayak. It is not clear how in the letter dt. 22.11.2001, personsat Serial No. 7, and 8 are both mentioned under the category as P.H. andHas being the junior most candidates. No doubt under the name of Snehalata Nayak, it is shown S.no. 31 of SEBC Category. Does it mean thatSnehalata was appointed from SEBC but under the category of physicallyhandicapped? The office order terminating the service of the RespondentNo.1 refers to the letter no. 7119 dated 16.03.2002 sent by the 2[nd]Appellant Director. It is not produced. However, what is clear is that theperson appointed in place of the Respondent No.2 was the RespondentNo. 1.

18. In such circumstances we cannot possibly hold that othercandidates who may have secured lesser marks but who it must benoted were treated as falling in different categories for which separatelist were prepared, should have been shown the door to comply with theorder of the Tribunal. The Respondent No. 1 was considered under theSEBC (Women) as being a woman, she could aspire with the age relaxation.

19. We may incidentally notice that the Respondent No. 1 hasonly a few months for attaining the age of superannuation. It may betrue that she has not secured any alternative employment as stated inher affidavit and also projected in the written submissions. She has alsonot been able to work based on the direction of the Tribunal or of theHigh Court.

20. The decisions relied upon by the Respondent No. 1 may notassist her.

As far as the decision in the Delhi Transport Corporation (supra)is concerned, the Court was dealing with constitutionality of the powerunder the regulation to dispense with the service of a permanent employeewithout holding any enquiry. This Court took the view that dispensingwith the service of the permanent and confirmed employee by merelyissuing a notice without assigning reasons could not be countenanced.The decision clearly cannot apply in a situation where the Appellantsbeing under the legal obligation to implement the order of the Tribunaldispensed with the services of the employee in accordance with thedirections. The decisions in Hindustan Tin Works Pvt. Ltd. (supra) andSurendra Kumar Verma (supra) relate to Industrial Law and the effectof illegal termination of a workman. An order which is passed pursuantto a direction which is binding on the employer cannot possibly bedescribed as illegal. Therefore, the said case law cannot advance thecase of the Respondent.

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A21. In Basudeo Tiwary (supra) the services of the Appellant hadbeen terminated. The Appellant was appointed as a lecturer. The collegewas taken over by the University. The services was terminated on thebasis that the appointment was not made validly. One of the contentionstaken was there was violation of principles of natural justice. Thoughreliance was undoubtedly placed on Section 35 (3) of the Bihar UniversityBAct, 1951, and the same purported to provide that any appointment interaliacontrary to the act statutes rules or regulation or in any regular orunauthorised manner shall be terminated at any time without any notice,we do notice para 12 of the said judgment: - “The said provision provides that an appointment could beCterminated at any time without notice if the same had been made contraryto the provisions of the Act, statutes, rules or regulations or in any irregularor unauthorised manner. The condition precedent for exercise of thispower is that an appointment had been made contrary to Act, Rules,Statutes and Regulations or otherwise. In order to arrive at a conclusionDthat an appointment is contrary to the provisions of the Act, statutes,rules or regulations etc. a finding has to be recorded and unless such afinding is recorded, the termination cannot be made but to arrive at sucha conclusion necessarily an enquiry will have to be made as to whethersuch appointment was contrary to the provisions of the Act etc. If in agiven case such exercise is absent, the condition precedent standsEunfulfilled. To arrive at such a finding necessarily enquiry will have to beheld and in holding such an enquiry the person whose appointment isunder enquiry will have to be issued to him. If notice is not given to himthen it is like playing Hamlet without the Prince of Denmark, that is, ifthe employee concerned whose rights are affected, is not given noticeFof such a proceeding and a conclusion is drawn in his absence, such aconclusion would not be just, fair or reasonable as noticed by this Courtin D.T.C. Mazdoor Sabha’s case. In such an event, we have to hold thatin the provision there is an implied requirement of hearing for the purposeof arriving at a conclusion that an appointment had been made contrary to the Act, statute, rule or regulation eta and it is only on such a conclusionGbeing drawn, the services of the person could be terminated withoutfurther notice. That is how Section 35(3) in this case will have to beread.”

22. Finding that there was no notice issued to the Appellant thereinand further noticing that the Appellant, had died during the pendency ofH

the proceedings it was to be deemed that the Appellant had died in harness.He was allowed the benefit of payment of arrears of salary from thedate of termination of the service till the date of his death.

23. We may notice the decision would appear to the distinguishablein terms of the facts in this case. It is no doubt true that the RespondentNo. 1 was offered appointment and was appointed. However, theAppellants suffered an order by a competent Tribunal which it was dutybound to implement. We would be remiss if we were to discard theprinciples of natural justice as inapplicable. No doubt there was no needto hold any enquiry as the termination was not on disciplinary grounds.No stigma is attached to Respondent No. 1. But a notice given to theRespondent No. 1 as to why in terms of the order of the Tribunal theRespondent No. 1 should be treated as the person whose services wasto be dispensed with should have been issued. However, we would thinkthat on the materials placed before the Court, with 16 vacancies aloneearmarked for S.E.B.C (Women), and the Respondent No. 2 being the16[th] and the last of the candidates entitled in the said Category, not joiningin the circumstances resulting in the Respondent No. 1 being appointedand the order of the Tribunal being binding on the Appellants, we wouldthink that in the present case, the failure to afford an opportunity to theRespondent No.1 to show cause as to why her services should not beterminated cannot be held to be fatal. We also cannot loose sight of thefact nearly two decades have gone by and only for the reason that theRespondent was not offered an opportunity of being heard in the factsof this case, we cannot support the order of the High Court in directingthe appointment of the Respondent No. 1. It is not as if the High Courthas found that the termination of the service of the Respondent No. 1was ab initio void or illegal as such. The Court in fact set aside thedirection of the Tribunal to reinstate by creating a supernumerary post.This is not challenged by Respondent No. 1. It directed only that theappointment of the Respondent No. 1 be made in the vacancy. Therefore,the claim of Respondent No. 1 for back wages from the date of terminationis at any rate clearly untenable.

24. Deepali Gundu Surwase (supra), the matter arose under theMaharashtra Employees of Private Schools (condition of service)Regulation Act, 1977. This Court undoubtedly laid down that in the caseof wrongful termination of service reinstatement with the continuity ofservice and back wages is the normal rule. It was subject to the AB

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Aqualification that the Court may inter alia take into consideration thelength of service and the nature of misconduct if any proved, the financialcondition of the employer and similar other factors. For the reasonswhich we have indicated in the facts of this case Respondent No. 1cannot be permitted to draw any benefit from the said pronouncement.

BThe High Court rightly set aside the direction for creation of thesupernumerary post. We find that there is no basis for the High Court tohave thereafter directed the appointment of the Respondent No. 1 inany vacancy available.

25. The upshot of the above discussion is that the termination ofCthe service of the Respondent No. 1 was unavoidable in the light of thebinding order of the Tribunal in O.A. No. 650 of 2000. Consequently, theorder of the High Court to the extent impugned is to be set aside.Resultantly, we allow the appeal and the order of the High Court impugnedis set aside and the order passed in the O.A. no. 917 of 2002 filed by theRespondent No. 1 will stand set aside.D

26. No order as to costs in the appeal. We make it clear that if thecost of Rs. 50,000 ordered as condition to condone delay in filing theSLP is not paid as aforesaid the impugned judgment will stand, theapplication for condoning delay will stand dismissed and the leave grantedwill stand revoked and this judgment will stand recalled. If the cost isEdeposited, the same can be withdrawn by the Respondent No. 1.

Nidhi Jain

Appeal allowed.

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