STATE OF ODISHA & ORS. versus KAMALINI KHILAR & ANR.

Citation: [2021] 4 S.C.R. 221 · Decided: 28-04-2021 · Supreme Court of India · Bench: UDAY UMESH LALIT · Disposal: Appeal(s) allowed

Judgment (excerpt)

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   [2021] 4 S.C.R. 221
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 of
S.E.B.C (Women) – However, respondent no. 1 appointed since
appointment letter could not be delivered to respondent no. 2 being
wrongly addressed and apparently, respondent no. 2, did not join –
Application by respondent no. 2 before the tribunal – Tribunal issued
appointment order in favor of respondent no. 2 while terminating
appointment of respondent no.1 and also issued direction for
creation of supernumerary post – However, the High Court set aside
the direction for creation of the supernumerary post and thereafter,
directed the appointment of the respondent No. 1 in any vacancy
available –On appeal, held: In the case of wrongful termination of
service reinstatement with the continuity of service and back wages
is the normal rule – On facts, it was clear that the person appointed
in place of the respondent no.2 was respondent no. 1 – Respondent
no. 1 has only a few months for attaining the age of superannuation
and has not secured any alternative employment and also has not
been able to work based on the direction of the tribunal or of the
High Court – Furthermore, nearly two decades have gone by and
failure to afford opportunity of being heard to respondent no 1
cannot have adverse effect – More so, the High Court has not found
that the termination of the service of the respondent no. 1 was ab initio
void or illegal as such – High Court in fact rightly set aside the
direction of the tribunal to reinstate by creating a supernumerary
post – There was no basis for the High Court to have thereafter
directed the appointment of the respondent no. 1 in any vacancy
available – Termination of the service of the respondent no. 1 was
unavoidable in the light of the binding order of the tribunal – Thus,
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SUPREME COURT REPORTS
[2021] 4 S.C.R.
the claim of respondent no. 1 for back wages from the date of
termination is untenable – Order of the High Court to the extent
impugned is set aside.
Allowing the appeal, the Court
HELD: 1.1 The Order of the Tribunal passed in O.A. No.
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]
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1.3 Under the resolution and procedure adopted, separate
lists were prepared for various categories. Vacancies were
earmarked for

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