The State Of Odisha vs Kamalini Khilar on 28 April, 2021


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Supreme Court of India

The State Of Odisha vs Kamalini Khilar on 28 April, 2021

Author: Uday Umesh Lalit

Bench: Uday Umesh Lalit, Hon’Ble Ms. Banerjee, K.M. Joseph

                                                   1


                                                                  REPORTABLE


                                  IN THE SUPREME COURT OF INDIA
                                  CIVIL APPELLATE JURISDICTION


                                  CIVIL APPEAL NO._______OF 2021
                          [Arising out of SLP (CIVIL No.) ______of 2021)
                                      (Diary No. 24414/2020)


          STATE OF ODISHA & ORS.                          …   APPELLANT(S)


                                                VERSUS


          KAMALINI KHILAR & ANR.                          …   RESPONDENT(S)


                                            J U D G M E N T

K.M. JOSEPH, J.

1. There is a delay of 247 days in filing the SLP.

Having considered the matter, we are inclined to

condone delay but on condition that a sum of Rs.

50,000 is paid as costs to the Respondent No. 1.

Accordingly, the application to condone delay is
Signature Not Verified

Digitally signed by Dr.
allowed subject to payment of Rs. 50,000 to the
Mukesh Nasa
Date: 2021.04.28
16:17:27 IST
Reason:

Respondent No. 1 by the Appellant depositing the
2

same in the Registry within 4 weeks from today.

Leave granted.

2. The Appellant No. 1, namely the State of Odisha,

passed a resolution dated 12.03.1996 prescribing

the procedure for recruitment of Government

teachers in primary schools. The Appellant No. 3

namely the District Inspector of Schools, Bhadrak-

II, Bhadrak had to determine the number of

vacancies to be filled up through direct

recruitment. Appellant No. 3 had to also determine

the number of vacancies which were required to be

reserved for each reserved category. It is the case

of the Appellants that based on the same, on

29.07.1996 by letter dated 29.07.1996, it was

communicated to the Respondent No. 1 that her name

was sponsored by the District Employment Exchange

for the post of primary school teacher. She was

called upon to submit her application along with

her documents. The Respondent No. 1 was directed

to attend the viva-voce examination. A merit list

was made. The Respondent No. 1 secured the 22nd
3

position in the SEBC (Women) Category. There were

only 16 vacancies which were to be filled by SEBC

(Women) Category candidates. Respondent No. 1 was

favoured with an order of appointment dated

04.04.1998. She was issued such appointment

according to the Appellants on the basis that one

of the successful candidates, namely the

Respondent No. 2 who secured the 16th position

could not join within time. The Respondent No. 1

joined based on the joining letter dated

20.04.1998.

3. While so complaining that she was not served with

the appointment order and that order was issued in

a wrong name, Respondent No. 2 filed

representation which based on an order in an

application before the Tribunal was disposed of

with certain directions by the 1st Appellant O.A

No. 650 of 2000 was thereafter filed by Respondent

No. 2 before the Hon’ble Orissa Administrative

Tribunal. The Tribunal allowed the O.A. by order

dated 21.09.2001.

4

The operative part reads as follows:-

“For the reasons indicated above, we allow the

Original Application with 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 the applicant within one month

from the date of receipt of the copy of this order

and if the post has been filled up by the D.I of

Schools is to carry out direction issued by

Respondent No. 1 under Annexure-6 in dispensing

with the service of the candidate who had been

appointed in place of Minati Pradhan, the

applicant.”

4. This led to order dated 16.04.2002 which was an

order of appointment of Respondent No. 2 by the

Appellant No. 3 and another order of the same date

by which the services of the Respondent No. 1 came

to be terminated. This led to the present round of

litigation, namely O.A. No. 917 (C) of 2002 filed

by the Respondent No. 1 before the tribunal. The
5

Tribunal after exchange of pleadings allowed the

application filed by the Respondent No. 1.

5. We may refer to the following part of the order:-

“In so far as, it is obvious that Smt. Snehalata

Nayak who has secured less marks and did not figure

in the physically handicapped list, has been given

appointment under the “physically handicapped”

quota and has been allowed to continue along with

several others, including S.E.B.C (male) and

General (male) candidates who have secured less

mark 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 should have

been issued and an opportunity to show-cause before

discharge allowed to the applicant even if for

argument sake only it is accepted that her service

can be terminated, as decided by the Hon’ble Apex

Court in the case on Basudeo Tiwari-Vrs-Sido Kandhu

University and others (AIR,1998 SC 3261). As no

show-cause notice was issued and no opportunity to

be heard was allowed and the principle of ‘Audi
6

alteram partum’ was not observed, even if the

applicant is deemed to be the junior most in the

S.E.B.C (Women) list, her termination is illegal.

Hence, Annexure-6, i.e., her termination order

vide office No. 981 dtd. 14.4.2002, is quashed.

The applicant be reinstated in service immediately

with all attendant service benefits by creating

another supernumerary post if necessary, as

termination of her service was not as per the

prescribed procedure or in accordance with the law

of the land.”

6. It is this order, which led to the passing of

the impugned order by the High Court. By the

impugned judgment, the High Court quashed the

direction of the Tribunal to reinstate the

Respondent No. 1 by creating a supernumerary post.

Thereafter, it was however ordered as follows:-

“However, since the vacancy is available, the

petitioners will give appointment to opposite

party No. 1 Smt. Kamalini Khilar against one of

such vacancies available in Bhadrak district
7

within a period of four weeks hence, the writ

petition is allowed the aforesaid extent.”

7. It is feeling aggrieved by the judgment that the

present appeal has been filed. We heard Learned

Counsel for the Appellants and Respondents No. 1

and 2 as well.

Submission of Appellants

8. The Learned Counsel for the Appellants would

complain that the High Court while granting limited

relief of quashing the direction to create a

supernumerary post, erred in the issuance of the

direction to appoint the Respondent No. 1 in the

vacancy. This is after having interfered with the

order of the Tribunal as noted. The Respondent No.

1 came to be appointed only on the basis that

Respondent No. 2 who admittedly had secured higher

rank than the Respondent No. 1 had not reported

for joining. It was only in compliance with the

order of the Tribunal, that the services of
8

Respondent No. 1 had to be terminated. It is

further contended that as things stand there is no

provision for making any appointment as the method

of appointment has been altered to absorption from

trained junior teachers.

9. Reliance was placed on the terms of the

Resolution dated 12th March, 1996. It is contended

that the selection was made based on the same. The

Employment Exchange sponsored eligible candidates

separately for general vacancies and for each

reserved categories. It is contended that the

sports person or physically handicapped person

from any Category could apply as much. Reference

is made to clause 8 of the Resolution. It is

contended that the maximum age as on the 1st of

January of the year of requisition was fixed as 32

years. Relaxation was however given by 5 years for

women candidates interalia. Separate list was to

be prepared for each of the reserved categories.

Separate select list of the candidates had to be

prepared for the vacancies notified in respect of
9

that category of candidates under clause 16 of the

Resolution. Clause 17a provided that the District

Inspector was to make appointment against the

sanctioned posts strictly in the order in which

the names occurred in the respective select lists.

16 vacancies were notified for the category of

S.E.B.C. (Women). It is pointed out that the

Respondent was born on 15.07.1961. She was 34

years, 5 months and 17 days as on 01.01.1996. She

therefore, got the relaxation as she had applied

as S.E.B.C (Women) in the Category. She secured

the 22nd rank and the Respondent No.2 was at S.no.

16.

10. There is no challenge at any point to the

resolution dated 12.03.1996 or the selection

procedure. The last person to get an appointment

from the list of S.E.B.C (Women) Category was

Respondent No.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
10

appointment against one of the vacancies notified

for S.E.B.C (Women) Category because the

Respondent No.2 was not served the appointment

order. If the Respondent No.2 had been served the

appointment letter, then the Respondent no. 1 would

not have been given an appointment based on her

position in her merit list for S.E.B.C (Women)

Category. The Respondent No. 1 never objected to

the method of preparing the select lists and is

therefore not entitled to raise objection now to

the preparation of the separate list. Reference is

made to judgment of this Court in Union of India

and Ors. vs. Dalbir Singh and Ors1. The Respondent

No.1 was always aware of the separate list for each

Category. She got the benefit of relaxation of age

by applying as a S.E.B.C (Women) candidate. Her

non-inclusion in any other list or the selection

procedure interalia was never challenged by her.

It is pointed out that in the written submission

of the Respondent No. 1, a misleading statement is

made that the vacancy occurred prior to 03.06.1996

1
(2009) 7 SCC 251
11

which is why the government proceeded to fill up

the vacancy by calling upon the Respondent No. 1.

It is pointed out that the letter written by the

3rd Appellant to the 2nd Appellant was about

complying with the order of the Tribunal in the

application filed by the Respondent No. 2. The 3rd

Appellant refers to the vacancy having being filled

by his predecessor. All the vacancies covered by

the selection process in question occurred prior

to 30.06.1996. It is also further contended that

the none of the decisions relied upon by the

Respondent No.1 are relevant having regard to the

circumstances surrounding the appointment of the

Respondent No.1 and the specific directions issued

by the Tribunal.

The Case Of Respondent No.1.

11. There is a violation of principles of natural

justice. The termination of her services is wholly

illegal arbitrary and capricious. The Appellants

delayed the matter. The Respondent No.1 was a

permanent employee having impeccable four years of
12

continuous service record. The finding that her

services was terminated in view of the order dated

21.09.2001 is erroneous and not sustainable having

regard to the following aspects.

The Respondent No. 1 was not a party in the O.A.

filed by the Respondent No. 2. Secondly, the

Tribunal had not directed removal of the Respondent

No. 1 but only directed the removal of the person

who had taken the place of the Respondent No. 2.

It is pointed out that at Page no. 64 of the SLP

Paper Book which is the letter dt. 22.01.2001

written by the 3rd Appellant and also referring to

the list of junior most candidates of different

categories appointed as primary school teachers at

S.No. 3 the candidate is a general category male

who had secured 109.10 marks. S.No. 5 is candidate

from SEBC (Male) who secured 110.75 marks.

At S.No. 7 Jagatanand Panigrahi is specifically

earmarked as Physical Handicapped Category but

S.No. 8 named as Snehalata Nayak who is

specifically earmarked at S.no. 31 of SEBC Category
13

and secured only 110.36 marks but is given

appointment as PH illegally whereas she belongs to

SEBC Category. The Respondent No. 1 belongs to SEBC

Category had secured 112.75 marks which was more

than what the above persons obtained.

Therefore, the Respondent No. 1 was not the person

whose services was to be terminated in terms of

the order of the tribunal in the earlier

proceedings, it is contended.

12. It is contended that the Respondent No. 1 was

not party to the earlier proceeding. The order

adversely affecting the Respondent No. 1 should

not have been passed and the government should have

challenged the order passed in the earlier

proceeding. There is the bar under Section 115 of

the Indian Evidence Act, 1872. In other words,

there is estoppel. Reliance is placed on the

judgements of this court in Delhi Transport

Corporation vs. D.T.C. Mazdoor Congress and Ors.2,

2
AIR 1991 SC 101
14

Surendra Kumar Verma and Ors. vs. Central

Government Industrial Tribunal-Cum-Labour Court,

New Delhi and Ors.3 and Deepali Gundu Surwase vs.

Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) and

Ors.4 . Reliance is also sought to be placed on the

judgements of this Court in Hindustan Tin Works

Pvt. Ltd. vs. The Employees of Hindustan Tin Works

Pvt. Ltd. and Ors.5 and Basudeo Tiwary vs. Sido

Kanhu University and Ors.6

There were persons who secured lesser marks than

the Respondent No.1 who are allowed to be retained

in service and it was the Respondent No. 1 who was

harassed and victimised. The delay in litigation

is solely attributed to the government. There is a

delay of almost 7 years in filing reply by the

government. After the passing of the order by the

Tribunal to reinstate the Respondent No. 1 with

all service benefit it woke up only when contempt

proceeding was initiated and the order was

3
(1980) 4 SCC 443
4
(2013) 10 SCC 324
5
(1979) 2 SCC 80
6
AIR 1998 SC 3261
15

challenged only after a lapse of two years. The

career of the Respondent No. 1 was spoiled due to

the illegal termination. She could not properly

bring up her children and spent the entire period

of litigation in distress and financial hardship.

Had she been continued she would have become head

mistress now. She being a lady and married woman

residing in rural area she could not get any

employment elsewhere due to want of the same in

the locality and affidavit is also filed indicating

that she could not get suitable employment

elsewhere.

FINDINGS

13. The Order of the Tribunal passed in O.A. No.

650 of 2000 was binding on the department. We

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
16

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 decision of the

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 subject noted

above. It had been reported by the D.I. of Schools,

Bhadrak-II in his 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

to be appointed, but the appointment order was

dispatched in the name of Minakhi Pradhan. Hence,

before taking steps to comply with the order of

the Tribunal to appoint Minati Pradhan, please

check the fact in the Office of D.I. of Schools,
17

Bhadrak-II to ascertain whether any other person

named Minakhi Pradhan has been appointed on the

basis of incorrectly addressed letter. If yes, the

applicant in the writ petition will join in her

place if not the junior most candidate will be

removed to let her join unless if Government

decides to permit the applicant to join in a post

subsequently fallen vacant.”

The Tribunal directed as already noted that if the

post had been filled up the District Inspector of

schools was to carry out the direction of the

Respondent No. 1 which we have extracted that is

dispense with the service of the candidate who had

been appointed in place of Respondent No. 2.

Interestingly, we may notice that the Government

had directed that the junior most candidate will

be removed in order to enable the Respondent No. 2

to join. The direction of the Tribunal has become

final.

14. While it may be true the Respondent No. 2 was

not a party to the O.A. in law nothing prevented
18

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. Therefore, the only

question which survived for consideration is

whether it is the Respondent No. 1 who was

appointed in place of the Respondent No. 2.

15. It would appear to be clear that under the

resolution and procedure adopted, separate lists
19

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.

20

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.

16. We find merit also in the contention of the

Appellants that 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,
21

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.

17. It may not be possible to find that any person

other than the Respondent No. 1 was the candidate

who was appointed in place of the Respondent 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 merit list of SEBC

(female) (page 49) shows that the Respondent No. 2

with 117.46 marks was at the 16th position.

Snehalata Nayak is no doubt at Serial No. 31 of

SEBC (Women) list. But she is shown in the category

of 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.7

Jagatanand Panigrahi is shown P.H. has secured
22

lesser marks than Snehalata Nayak. It is not clear

how in the letter dt. 22.11.2001, persons at Serial

No. 7, and 8 are both mentioned under the category

as P.H. and as 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 that

Snehalata was appointed from SEBC but under the

category of physically handicapped? The office

order terminating the service of the Respondent

No.1 refers to the letter no. 7119 dated 16.03.2002

sent by the 2nd Appellant Director. It is not

produced. However, what is clear is that the person

appointed in place of the Respondent No.2 was the

Respondent No. 1.

18. In such circumstances we cannot possibly hold

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
23

(Women) as being a woman, she could aspire with

the age relaxation.

19. We may incidentally notice that 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.

20. The decisions relied upon by the Respondent

No. 1 may not assist her.

As far as the decision in the Delhi Transport

Corporation (supra) is concerned, the Court was

dealing with constitutionality of the power under

the regulation to dispense with the service of a

permanent employee without holding any enquiry.

This Court took the view that dispensing with the

service of the permanent and confirmed employee by

merely issuing a notice without assigning reasons
24

could not be countenanced. The decision clearly

cannot apply in a situation where the Appellants

being under the legal obligation to implement the

order of the Tribunal dispensed with the services

of the employee in accordance with the directions.

The decisions in Hindustan Tin Works Pvt. Ltd.

(supra) and Surendra Kumar Verma (supra) relate to

Industrial Law and the effect of illegal

termination of a workman. An order which is passed

pursuant to a direction which is binding on the

employer cannot possibly be described as illegal.

Therefore, the said case law cannot advance the

case of the Respondent.

21. In Basudeo Tiwary (supra) the services of the

Appellant had been terminated. The Appellant was

appointed as a lecturer. The college was taken over

by the University. The services was terminated on

the basis that the appointment was not made

validly. One of the contentions taken was there

was violation of principles of natural justice.

Though reliance was undoubtedly placed on Section
25

35 (3) of the Bihar University Act, 1951, and the

same purported to provide that any appointment

interalia contrary to the act statutes rules or

regulation or in any regular or unauthorised 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 be terminated at any time without notice if

the same had been made contrary to the provisions

of the Act, statutes, rules or regulations or in

any irregular or unauthorised manner. The

condition precedent for exercise of this power is

that an appointment had been made contrary to Act,

Rules, Statutes and Regulations or otherwise. In

order to arrive at a conclusion that an appointment

is contrary to the provisions of the Act, statutes,

rules or regulations etc. a finding has to be

recorded and unless such a finding is recorded,

the termination cannot be made but to arrive at

such a conclusion necessarily an enquiry will have

to be made as to whether such appointment was

contrary to the provisions of the Act etc. If in a
26

given case such exercise is absent, the condition

precedent stands unfulfilled. To arrive at such a

finding necessarily enquiry will have to be held

and in holding such an enquiry the person whose

appointment is under enquiry will have to be issued

to him. If notice is not given to him then it is

like playing Hamlet without the Prince of Denmark,

that is, if the employee concerned whose rights

are affected, is not given notice of such a

proceeding and a conclusion is drawn in his

absence, such a conclusion would not be just, fair

or reasonable as noticed by this Court in D.T.C.

Mazdoor Sabha’s case. In such an event, we have to

hold that in the provision there is an implied

requirement of hearing for the purpose of 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 conclusion being

drawn, the services of the person could be

terminated without further notice. That is how

Section 35(3) in this case will have to be read.”
27

22. Finding that there was no notice issued to the

Appellant therein and further noticing that the

Appellant, had died during the pendency of 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 the date of

termination of the service till the date of his

death.

23. We may notice the decision would appear to the

distinguishable in terms of the facts in this case.

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. We

would be remiss if we were to discard the

principles of natural justice 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
28

No. 1 should be treated as the person whose

services was to be dispensed with should have been

issued. However, we would think that 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, we

would think that in the present 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. We also

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, we cannot support

the order of the High Court in directing the

appointment of the Respondent No. 1. It is not as

if the High Court has found that the termination

of the service of the Respondent No. 1 was ab
29

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.

24. Deepali Gundu Surwase (supra), the matter

arose under the Maharashtra Employees of Private

Schools (condition of service) Regulation Act,

1977. This Court undoubtedly laid down that 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 interalia 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. For the reasons which we have indicated

in the facts of this case Respondent No. 1 cannot
30

be permitted to draw any benefit from the said

pronouncement.

The High Court rightly set aside the direction for

creation of the supernumerary post. We find that

there is no basis for the High Court to have

thereafter directed the appointment of the

Respondent No. 1 in any vacancy available.

25. The upshot of the above discussion is that 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 to be set aside. Resultantly,

we allow the appeal and the order of the High Court

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.

26. No order as to costs in the appeal. We make it

clear that if the cost of Rs. 50,000 ordered as
31

condition to condone delay in filing the SLP is

not paid as aforesaid the impugned judgment will

stand, the application for condoning delay will

stand dismissed and the leave granted will stand

revoked and this judgment will stand recalled. If

the cost is deposited, the same can be withdrawn

by the Respondent No. 1.

………………….J.

(UDAY UMESH LALIT)

………………….J.

(K.M. JOSEPH)

New Delhi,
April 28, 2021.



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