SUPREME COURT OF INDIA
Mgmt, Kalpataru Vidya Samasthe (R)
Vs
S.B. Gupta
Appeal (Civil) 3536 of 2003
(Arijit Pasayat and H.K.Sema)
12/09/2005
H. K. SEMA, J.
This appeal filed by the appellant Kalpataru Vidya Samsthe, Tiptur, Tumkur
District, in short 'KVS', is directed against the judgment and order dated
19.8.2002 passed by the High Court of Karnataka at Bangalore in C.R.P.No.2959
of 2000, in exercise of its power under Section 115 C.P.C. The High Court has
set-aside the order dated 27.5.2000 passed in MA (Eat) No.2 of 1996 by the
Additional District Judge, Education Appellate Tribunal, dismissing the appeal
of the respondent herein under Section 94 of the Karnataka Education Act.
The basic facts may be noted. The respondent no.1 was appointed as Assistant
Professor in Mechanical Engineering Department of Kalpataru Institute of
Technology by an order dated 6.9.1994 in the scale of Rs.3700-125-4950-150-5700
at Rs.3700/- basic pay and other allowances as are admissible under the rules
and regulations on temporary basis for a probation period of one year
commencing from 7.9.1994 till 7.9.1995. The said appointment carries a
stipulation in Clause 11 that the appointment would be on probation for one
year and thereafter the same would be reviewed. On the strength of the
appointment, the respondent no.1 reported to duty on 7.9.1994 and worked till
31.8.1995. Before the completion of the probation period, the respondent no.1
was relieved from service w.e.f. 31.8.1995 and on 1.9.1995 he was again
appointed afresh on probation for a period of six months i.e. up to 29.2.1996.
His basic salary was, however, fixed at Rs.3825/- with other allowances. Clause
11 of the said appointment order clearly stipulated that the appointment was
purely temporary and up to 29.2.1996. Pursuant to the aforesaid appointment the
respondent no.1 joined the duty on 4.9.1995. On completion of the period of
probation, the respondent was relieved from his duties w.e.f. 1.3.1996. As
noticed earlier, he filed an appeal before the Educational Appellate Tribunal
in short 'EAT'.
The EAT after examining the evidence and documents on record dismissed the
appeal holding inter alia that the re-appointment of the respondent by an order
dated 1.9.1995 was for a period of six months i.e. up to 29.2.1996 and the
respondent knowingly accepted the condition stipulated in the appointment
letter and the said probation appointment came to an end by a efflux of time for
which period he was appointed. Counsel for the appellants first contended that
the High Court has erred in law transgressing his jurisdiction vested in it
under Section 115 C.P.C. inasmuch there is no findings that the Tribunal have
exercised a jurisdiction not vested in it by law, or to have failed to exercise
a jurisdiction so vested, or to have acted in exercise of its jurisdiction
illegally or with material irregularity. According to the counsel for the
appellants, the High Court, therefore, erred in law in sitting as appellate
jurisdiction by setting aside the well-merited and considerate judgment of the
Tribunal.
The further contention of the counsel for the appellants is that the respondent
having known the condition stipulated in Clause 11 of the appointment order
accepted the condition and joined the post and cannot be allowed to turn back
and say that he has not been dealt with fairly by the appellants. It is further
argued that the appointment of the respondent has expired by efflux of time for
which period he was appointed. There was no requirement of observance of the
principle of natural justice in such matter. Per contra counsel for the
respondent contended that from the appointment order of respondent itself it is
clearly stated that the appointment shall be governed by all the service
conditions and rules of the KVS. It is further contended that the appellant's
institute being a private educational institution, it is governed by the
provisions of repealed Karnataka Private Educational Institutes Act, 1975 which
were in force at the time of issuing the appointment order and in this
connection Rule 7 of the Rules framed by the State Government in exercise of
its power under Sections 3 and 15 of the Act has been pressed into service. It
is further contended that under the said Rules it is incumbent on part of the
board of management to extend the period of probation of an employee by a
further period of six months. Since there is no extension of probationary
period of the respondent and in absence of the same, the probationary period of
the respondent would come to an end on 6.9.1995.
We have carefully considered the rival contentions of the parties. Reverting
back to the facts of the case, the undisputed question that revolves around for
resolving the dispute at hands is that the respondent was appointed on
probation w.e.f. 6.9.1994 for a period of one year. Clause 11 of the said
appointment stipulated that he would be on probation for one year and then
review. Before the probation period came to an end the respondent was relieved
from service by an order-dated 31.8.1995. He was again re- appointed for a
period of six months by an order-dated 1.9.1995. He was directed to report to
duty on 2.9.1995. Clause 11 of the order stipulated that the appointment is
purely temporary and is up to the end of February 1996 i.e. 29.2.1996. The
respondent admitted that he has written a letter-dated 4.9.1995 addressed to
the Institute stating that "As per your notification, I am happy to rejoin
your institution. I am herewith submitting my originals along with no
dues". At this stage, it may be stated that the respondent has not
challenged his subsequent appointment for a period of six months on probation
by an order-dated 1.9.1995. He has challenged the order dated 29.2.1996
relieving the respondent w.e.f. 1.3.1996. on expiry of the probation period on
29.2.1996 before the 'EAT'.
In our view, the order dated 29.2.1996 relieving the service of the respondent
w.e.f. 1.3.1996 is in terms of Clause 11 of the order of appointment-dated
1.9.1995, which has been accepted by the respondent without any demur, does not
suffer from any infirmities. It is now well-settled principle of law that
the appointment made on probation/adhoc for a specific period of time and such
appointment comes to an end by efflux of time and the person holding such post
can have no right to continue in the post. # In the case of Dir., Institute
of Management Development v. Pushpa Srivastava, 0
(referred), a three Judge-Bench of this Court considered the identical question
and held in paragraph 20 of the Judgment as under:-
"Because the six months' period was coming to an end on 28th February,
1991, she preferred the writ petition a few days before and prayed for mandamus
which was granted by the learned Judge under the impugned judgment. The
question is whether the directions are valid in law. To our mind, it is clear
that where the appointment is contractual and by efflux of time, the
appointment comes to an end, the respondent could have no right to continue in
the post. Once this conclusion is arrived at, what requires to be examined is,
in view of the services of the respondent being continued from time to time on
'ad hoc' basis for more than a year whether she is entitled to regularization?
The answer should be in the negative". *
In the instant case, as noticed above, the respondent has accepted the
appointment including the terms and conditions stipulated in Clause 11 of the
appointment order and re-joined the post from 4.9.1995 and continued in the
post up to 29.2.1996 on which date the period of six months came to an end. He
raised grievances before the Tribunal after the probationary period came to an
end by efflux of time. Having accepted the terms and conditions stipulated
in the appointment order and allowed the period for which he was appointed to
have been lapsed by efflux of time, he is not permitted to turn back and said
that the appointment de-hors the Rules or the terms and conditions stipulated
in the appointment, were not legally valid. #
It is also well-settled principle of law that the High Court in its
revisional jurisdiction under Section 115 cannot interfere with the findings of
fact recorded by the courts below and reappreciate the evidence and interfere
with the findings unless it is found that the findings recorded by the lower
court are perverse or there has been non-application of mind. # In the case
of Masjid Kacha Tank, Nahan vs. Tuffail Mohammed, (referred), this Court
held in paragraph 3 of the judgment as under:
"It is well settled position in law that under S.115 of the Code of
Civil Procedure the High Court cannot reappreciate the evidence and cannot set
aside the concurrent findings of the Courts below by taking a different view of
the evidence. The High Court is empowered only to interfere with the findings
of fact, if the findings are perverse or there has been a non- appreciation or
non-consideration of the material evidence on record by the Court below. Simply
because another view of the evidence may be taken is no ground by the High
Court to interfere in its revisional jurisdiction". *
Going through the impugned order of the High Court, we do not find any findings
of the High Court that the findings of fact recorded by the lower court are
perverse and there has been non-application of mind. The High Court has erred
in law as well as in facts by setting aside the well-reasoned order of the
Tribunal. The Order of the High Court is, therefore, set-aside and the order of
Tribunal is restored. The appeal is allowed with no order as to costs