Supreme Court Invokes Article 142 Powers To Reinstate English Lecturer In College

A Division Bench of the Supreme Court, while hearing an appeal challenging Bombay High Court order, invoked its inherent powers under Article 142 of the Indian Constitution to reinstate the appellant to the post of lecturer in English.

“Therefore, for doing substantial justice this is a fit case where we should invoke our power under Article 142 of the Constitution of India for continuing her appointment on full time basis.”

The Bench comprised of Justices Abhay S. Oka and Sanjay Karol.

Case Background

The issue revolves around the employment of the appellant, a lecturer, with the second respondent (College) which is affiliated to the fourth respondent (Shivaji University, Kolhapur, Maharashtra). On 5th July 1993, an advertisement (the first advertisement) was published inviting applications to the posts of full­time lecturer. In the said advertisement, two posts were advertised. One was in the open category, and the other one was against the Scheduled Caste category. The appellant and the fifth respondent applied for the said posts along with another candidate, namely, Ms S.D. Patil. The University Selection Committee recommended the aforesaid three candidates. The name of Ms S.D. Patil was first in the order of merit, the fifth respondent was the second, and the appellant was the third. Though the fifth respondent did not belong to the Scheduled Caste category, on 26 August 1993, the first respondent appointed her against the post reserved for the Scheduled Caste category for a period of one year. Ms S.D. Patil did not join the employment, and therefore, the appellant was appointed to the post of lecturer in English for one academic year on a full-time basis. Subsequently, other advertisements came, and the fifth respondent kept applying and continued to remain in this post.

The fourth advertisement, dated 17 June 1996, came for the same post reserved for the Scheduled Caste category. Again, the fifth respondent applied. However, the management of the College appointed one Mr. Gorakh Jagannath Sathe against the reserved post which led to the order of termination of the fifth respondent. Being aggrieved by the termination, the fifth respondent preferred an appeal before the University and College Tribunal, Pune (‘Tribunal’), in which the appellant was not made a party. By the order dated 5th February 1998, the Tribunal allowed the appeal and directed reinstatement of the fifth respondent to her original post. Since this would lead to three full­time lecturers of English for which, there was no approval, therefore, College requested the University to grant approval to continue the appellant as a half­time or part­time teacher. However, the University did not accede to the said request. Thus, by the letter dated 29th March 2000, the College informed the appellant that for the next academic year, she would work for a half­time workload and on half pay.

Submission of the Counsels

Senior counsel, appearing for the appellant, submitted that the appellant was appointed on the basis of the first advertisement. Even on the basis of the second advertisement, the appellant was selected. In both processes, the appellant was selected against the open category post. That is how, on 26 October 1994, College issued the letter of appointment appointing the appellant in open category, to which the fifth respondent did not raise any objection.

On the contrary, pursuant to the third and fourth advertisements, the fifth respondent applied for the post which was reserved for the Scheduled Caste category. The counsel further submitted that after the fifth respondent accepted the appointment of the appellant against open category, it was too late in the day for her to approach the Tribunal and contend that she was above the appellant in the order of merit in the process conducted on the basis of the first advertisement.

On the other hand, the counsel, appearing for fifth respondent, submitted that pursuant to the first advertisement when the selection process was conducted, fifth respondent was shown above the appellant in the order of merit. Therefore, the fifth respondent ought to have been appointed against the open category post and the appellant on a temporary basis against the post reserved for the Scheduled Caste category.

Court’s Observations

The Court pointed out that this situation has arisen as the fifth respondent never objected to the appointment of the appellant pursuant to the first and second advertisements, and she participated in the two further processes conducted on the basis of the third and fourth advertisements. The Court opined that in this process, the appellant has become age-barred to get the appointment to the post of lecturer elsewhere. Even assuming that there was an error committed by the College Management by appointing the appellant against the open category of post in the year 1994, the appellant cannot be allowed to suffer, as in the second process, she was the first in the order of merit. This selection was never challenged by the fifth respondent.

On the basis of these facts and circumstances, the Court invoked its inherent power under Article 142 of the Constitution of India to continue her appellant’s appointment on a full-time basis. However, the Court also observed that the same will be done without disturbing the fifth respondent. Therefore, it was ordered that the appellant should be placed in the seniority list immediately below the fifth respondent and the lecturer appointed on the post reserved for Scheduled Caste. Further, the Court directed the State Government to release necessary grant-in-aid for payment of salary to the appellant from the date of her appointment to the post of lecturer in English pursuant to this order, if necessary, by creating a supernumerary post.

Case Title: Vijaya Bhiku Kadam v. Mayani Bhag Shikshan Prasarak Mandal & Ors., 2023INSC775

Citation : 2023 LiveLaw (SC) 723

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