State of Odisha & Ors. vs Kamalini Khilar & Anr.

650 of 2000 was binding on the department. This Court cannot at this stage sit in judgment over the correctness of the order passed in the said O.A. Apparently, though the Respondent No. 2 having obtained higher rank than the Respondent No. 1 in the Category of S.E.B.C (Women) had been favoured with an appointment letter, it was not delivered to her as it was addressed wrongly. The Respondent No. 2, therefore did not join as apparently, she did not receive the appointment order. At least these are the findings of the Tribunal. In fact, the matter had engaged the attention of the 1st Appellant (govt) and it took a decision dated 24.02.2000 therein. The Tribunal directed that if the post had been filled up the District Inspector of schools was to carry out the direction, that is dispense with the service of the candidate who had been appointed in place of Respondent No. 2. The Government had directed that the junior most candidate would be removed in order to enable the Respondent No. 2 to join. The direction 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 a party to the O.A. in law nothing prevented her from challenging the said order. It may not be open to her to contend that as she was not a party, the said order cannot be and should not be implemented in letter and spirit. It is an order passed by a Tribunal which had jurisdiction in the matter. The finding that the Respondent No. 2 could not join because of the letter of appointment being issued in the wrong name cannot be open to challenge. The Tribunal was therefore, setting right an illegality and injustice caused to Respondent No. 2. There is no dispute that there were only 16 vacancies to be filled up of the category of S.E.B.C. (Women). For complying with the order of the Tribunal the Appellants had to dispense with the service of the person appointed in place of Respondent No. 2. [Para 14][233-C-F]

1.3 Under the resolution and procedure adopted, separate lists were prepared for various categories. Vacancies were earmarked for different groups. Merit list was also based on this classification. The Respondent No. 1 figured in the merit list at S.no. 22 for the category S.E.B.C. Women. The surest way to find out whether the termination of service of Respondent No. 1 was in tune with the direction issued by the tribunal in the earlier O.A. filed by the Respondent No. 2 is to find out as to whether the Respondent No. 1 would have secured the appointment, if the appointment letter was issued in the name correctly of the Respondent No. 2 and she had joined on the said basis. If the Respondent No. 1 would not secure the appointment if the Respondent No. 2 had so joined and in other words, the appointment of the Respondent No. 1 was only because of the non-joining of the Respondent No. 2, then it is the Respondent No. 1 who is the person who was appointed in place of the Respondent 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 proceedings against Respondent No. 1. No stigma is attached to the Respondent No. 1. The whole exercise was necessitated no doubt as a result of a mistake committed by the Appellants in not sending the appointment letter at the correct address to Respondent No. 2. In view of the fact that order O.A. No. 650 of 2000 had become final the Appellants were obliged to comply with the order. If they had nothing to offer by explanation to the case of the Respondent No. 2 that she was not served with the letter of appointment, the Respondent No. 1 would not be justified in contending that the Appellant should have challenged the order of the Tribunal. [Para 15][234-B-D]

1.5 Having regard to the Resolution under which the entire appointment were carried out, the matter is to be governed by the separate merit lists which were prepared. In the nature of the facts which make up the dispute in this case, it only means that the Respondent No. 1 was the junior most in the category of S.E.B.C (Women). The order of the Tribunal to be complied with contemplated dispensing the service of the candidate who was appointed in place of the Respondent No. 2. What is clear is that the person appointed in place of the Respondent No.2 was the Respondent No. 1. [Para 16, 17][234-D-F]

1.6 In such circumstances it cannot possibly be held that other candidates who may have secured lesser marks but who it must be noted were treated as falling in different categories for which separate list were prepared, should have been shown the door to comply with the order of the Tribunal. The Respondent No. 1 was considered under the SEBC (Women) as being a woman, she could aspire with the age relaxation. [Para 18][235-B-C]

1.7 The Respondent No. 1 has only a few months for attaining the age of superannuation. It may be true that she has not secured any alternative employment as stated in her affidavit and also projected in the written submissions. She has also not been able to work based on the direction of the Tribunal or of the High Court. [Para 19][235-D-E]

1.8 It is no doubt true that the Respondent No. 1 was offered appointment and was appointed. However, the Appellants suffered an order by a competent Tribunal which it was duty bound to implement. It would be remiss if the principles of natural justice were to be discarded as inapplicable. No doubt there was no need to hold any enquiry as the termination was not on disciplinary grounds. No stigma is attached to Respondent No. 1. But a notice given to the Respondent No. 1 as to why in terms of the order of the Tribunal the Respondent No. 1 should be treated as the person whose services was to be dispensed with should have been issued. However, on the materials placed before the Court, with 16 vacancies alone earmarked for S.E.B.C (Women), and the Respondent No. 2 being the 16th and the last of the candidates entitled in the said Category, not joining in the circumstances resulting in the Respondent No. 1 being appointed and the order of the Tribunal being binding on the Appellants, in the instant case, the failure to afford an opportunity to the Respondent No.1 to show cause as to why her services should not be terminated cannot be held to be fatal. This Court cannot loose sight of the fact nearly two decades have gone by and only for the reason that the Respondent was not offered an opportunity of being heard in the facts of this case, the order of the High Court in directing the appointment of the Respondent No. 1, cannot be supported. It is not as if the High Court has found that the termination of the service of the Respondent No. 1 was ab initio void or illegal as such. The Court in fact set aside the direction of the Tribunal to reinstate by creating a supernumerary post. This is not challenged by Respondent No. 1. It directed only that the appointment of the Respondent No. 1 be made in the vacancy. Therefore, the claim of Respondent No. 1 for back wages from the date of termination is at any rate clearly untenable. [Para 23][237-B-G]

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

1.10 The High Court rightly set aside the direction for creation of the supernumerary post. There is no basis for the High Court to have thereafter directed the appointment of the Respondent No. 1 in any vacancy available. The termination of the service of the Respondent No. 1 was unavoidable in the light of the binding order of the Tribunal in O.A. No. 650 of 2000. Consequently, the order of the High Court to the extent impugned is set aside and the order passed in the O.A. no. 917 of 2002 filed by 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 ordered as condition to condone delay in filing the SLP is not paid as aforesaid the impugned judgment would stand, the application for condoning delay would stand dismissed and the leave granted would stand revoked and this judgment would stand recalled. If the cost is deposited, the same can be withdrawn by the Respondent No. 1. [Para 26][238-D-E]

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

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

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 Government Industrial Tribunal-Cum-Labour Court, New Delhi and Ors. (1980) 4 SCC 443; Hindustan Tin Works Pvt. Ltd. vs. The Employees of Hindustan Tin Works Pvt. Ltd. and Ors. (1979) 2 SCC 80 – referred to.