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Judgment
A.S. Bopanna, J.—The Petitioner-management is before this Court assailing the order dated 30.07.2005 passed by the Educational Appellate Tribunal, Mangalore (for short ''the EAT) in EAT No. 5/95. By the said order, the EAT has declared that the Petitioner-management was not justified in treating the fourth Respondent herein as Professor and the approval granted has been held to be bad. The EAT has thereafter directed Respondents No. 1 to 3 before it to consider the case of the Appellant before it (Petitioner herein) for promotion to the post of Professor and thereafter to re-fix his salary and pension, if he was found entitled to the post.
Heard the learned Counsel for the parties and perused the petition papers.
Learned Counsel for the Petitioner while assailing the order of the EAT would urge four grounds in respect of his contentions. Firstly, it is contended that the EAT was not justified in entertaining the appeal, inasmuch as the Petitioner-institution is a minority institution and therefore, the Tribunal did not have jurisdiction. Secondly, it is contended that the EAT was not justified in entertaining the appeal which was filed after long lapse of time. Thirdly, it is the contention that the Government Order dated 22.05.1985 provides for direct recruitment to the post of Professor and such right was available to the Petitioner-management with effect from the year 1981 and as such the appointment made on 09.07.1982 and the approval granted on 19.08.1987 are valid. The last contention of the learned Counsel for the Petitioner is that the first Respondent herein was a Lecturer in Hindi, while appointment of Professor was to the Business Management and a candidate should have been a Lecturer in Commerce. Therefore, the first Respondent herein was not entitled and this aspect of the matter has not been properly considered by the EAT
In furtherance of the said contention, the learned Counsel for the Petitioner referred to the objection statement filed before the EAT and has also taken me through the order passed by the EAT. The learned Counsel for the first Respondent however contended that none of the said contentions are sustainable, inasmuch as the EAT has adverted to these aspects of the matter and has thereafter come to its conclusion by assigning cogent reasons. Therefore, the order passed by the EAT, based on the oral as well as the documentary evidence can be interfered by this Court, only if it is found to be so perverse and not as a natural course.
In the light of the contentions urged on behalf of the parties, firstly, with regard to the aspect of delay, it seen from the order passed by the EAT that the EAT has taken note of the application which had been filed seeking condonation of delay. After perusing the reasons, the EAT has come to the conclusion that the delay is liable to be condoned, and has allowed the application in I.A. No. 1. which was filed seeking condonation of delay as far back as on 06.09.1995 and the appeal was registered. In a matter of this nature, when discretion is provided to the EAT to consider the reasons and condone the delay based on the sufficient cause that is to be shown, this Court cannot re-appreciate such reasons more particularly, when the reasons are assigned to accept the sufficient cause shown by the Appellant before the EAT, seeking the condonation of delay. Therefore, the discretion exercised by the EAT in the facts of the case cannot be interfered by this Court. Therefore, the said contention of the learned Counsel for the Petitioner would fail.
With regard to the contention that the EAT ought not to have entertained the appeal as the Petitioner is a minority institution, though the learned Counsel for the Petitioner has relied on the judgment of a Division Bench of this Court in the case of Anjuman Hami-e-Muslimeen, Bhatkal and Ors. v. Education Appellate Tribunal for Uttara Kannada and Ors. ILR 1981 KAR 304 I am of the view that the said decision would be of no assistance to the Petitioner in the instant case. I am of the said view for the reason that in the said case, admittedly, the Petitioner was a minority institution in the instant case apart from raising the said contention, there is no material placed in this regard. Even otherwise, in the instant case, it is to be noticed that Respondent No. 1 herein, at the first instance had approached this Court in W.P. No. 2041/1988. The said writ petition came to be dismissed and when the first Respondent herein was before the Division Bench in W.A. No. 955/88, this Court directed the first Respondent herein to approach the EAT seeking redressal of his grievances. It is in that context, the first Respondent approached the EAT on the direction issued by this Court. The direction issued by this Court to the first Respondent to approach the EAT has not been assailed by the Petitioner before any other forum. Therefore, since the first Respondent herein approached the EAT based on a direction of this Court and thereafter since the Petitioner herein has participated in the said proceedings before the EAT without demur, it is not open for the Petitioner, at this stage, to contend that: the EAT did not have jurisdiction At this juncture itself, it is also necessary to notice that though there was delay in approaching the EAT, this Court had relegated the first Respondent herein to the EAT and while thus relegating, sometime had elapsed before this Court and therefore, even on the aspect of delay, the same would enure to the benefit of the first Respondent.
The contention on merits would have to be therefore considered in the present petition. In order to justify the action of the Petitioner in undertaking the process of direct recruitment to the post of Professors and thereafter appointing the fourth Respondent on G9.07.1982, the Petitioner has placed reliance on the Government Order dated 22.05.1985 (Annexure-F). The said Government Order was relied on before the EAT as well. While referring to the said documents, it is contended that, the earlier Government Order dated 03.10.1981 has been substituted by the present Government Order and therefore, the appointment made in the year 1982 would be valid, since the process of direct recruitment should be presumed to have been permitted from the year 1981 itself. A perusal of the said Government Order would indicate that the process of direct recruitment to the post of Professor has no doubt been permitted on 22.05.1985. The understanding of the Petitioner that the same is with effect from 1981 cannot be sustained, since the said Government Order is not expressly with retrospective effect. In any event, in such circumstance, the subordinate Legislation or orders cannot be made with retrospective effect and even though a reference has been made to the earlier Government Order dated 03.10.1981, the same is only to indicate that the earlier process was in vogue from 03.10.19181 and the same is being altered by the present Government. Order dated 22.05.1985. If this aspect of the matter is kept in view, the direct recruitment was permissible only from 22.05.1985. Even though the Government granted its approval on 19.08.1987, it would have to be assumed that the approval granted is without application of mind to the fact that the appointment made on 09.07.1982 was contrary to the Government Order which was prevalent as on 09.07.1982. Therefore, the understanding of the Government Order dated 22.05.1985 by the Petitioner to mean that the power of direct recruitment was available from 1981 is also without basis and therefore, the EAT was justified on that aspect of the matter.
The next contention of the Petitioner is that the first Respondent herein was a Lecturer in Hindi and therefore, he was not entitled to be considered. In my view, this is a contention which cannot be taken into consideration at this stage. Even though the learned Counsel for the Petitioner contended so, it is seen that the Petitioner-institution has been blowing hot and cold. In one breath it is contended that by the Government Order, they are entitled to make direct recruitment.
while in the other breath, they are stating that the first Respondent would not have been entitled, even if the appointment was made based on the seniority list by taking it into consideration. If the contention of the common seniority as urged is taken into consideration, in such event, the first Respondent also would have been one of the persons among all the persons, who were indicated in the seniority list and would have fallen in the zone of consideration bur whether he would been promoted or not is another aspect. In any event, the EAT ultimately has only directed reconsideration of the case since the non consideration of the first Respondent was not valid. Therefore, while considering the case of the first Respondent as directed by EAT, all other aspects of the matter including educational qualification remains open for consideration. Since in a normal course, it would always been open for the Petitioner to consider that aspect also, the said contention is inconsequential at: this stage.
Thus having noticed the contention and the un-sustainability of the same, a perusal of the order dated 30.07.2005 passed by the EAT in No. 5/95 would indicate that, the EAT after taking note of the rival contentions had framed two points for its consideration. In that regard, the EAT has kept in view, the fact as to whether the appointment of the fourth Respondent herein as a direct recruit and the approval of the same was in order or not and in the alternative as to whether the non-consideration of the case of the first Respondent herein is illegal.
In the background of the said points framed for consideration, the EAT has referred to the Government Order in question and also the other materials available on record, including the oral evidence tendered by the first Respondent herein. The Petitioner herein neither tendered any oral evidence, nor had marked any documents on their behalf. Therefore, the EAT after taking note of the evidence of the first Respondent herein as P.W.1 and also the documents at Exhs.P1 to P8 has arrived at: its conclusion. When the EAT has referred to the evidence available on record and recorded a finding and when the finding is not shown to be contrary to the materials which were available on record, in my view, this Court while appreciating the findings rendered by the EAT in a writ proceedings under Article 226 and 227 of the Constitution of India cannot interfere with the same. For all the aforestated reasons, I see no error so as to interfere with the order passed by the EAT.
Considering the fact that the first Respondent has attained the age of superannuation as far back as 1993 and the parties have been litigating from the year 1990, it would be appropriate to direct the Petitioner to give effect to the order of the EAT dated 30.07.2005 as expeditiously as possible, but not later than two months from the date of receipt of a copy of this order.
Accordingly, the petition being devoid of merit stands dismissed, with no order as to costs.