Sadik Vs. Sanjay Raj Subba & Ors  Insc 6 (5 January 2004)
& S.B. Sinha. S.B. Sinha :
appellant herein was elected from 110 Naoboicha Legislative Assembly
Constituency in the State of Assam. An election petition was filed by the first
respondent herein questioning the election of the appellant in terms of
Sections 100 (1) of the Representation of the People Act, 1951 (hereinafter
referred to and called as 'the said Act', for the sake of brevity), on the
ground that he stood disqualified being the holder of a post of profit under
the State of Assam.
appellant was said to have been appointed as an Assistant Teacher in 'Pabha Chariali M.E. Madarassa School' (hereinafter referred to as 'the
said School'). He was working therein as an Assistant Teacher without any
remuneration. Primary education is imparted in the said School. It appears that
the primary education in the State of Assam used to be governed by three Acts,
known as 'Assam Basic Education Act, 1954', Assam, Elementary Education Act,
1962' and 'Assam Elementary Education Act, 1968'.
terms of the 1968 Act, the Regional Boards of Elementary Education were
constituted which took over the management of elementary schools and
also existed a State Board of Elementary Education constituted under Section 4
of Assam Elementary Education Act, 1968.
State thereafter enacted the Assam Elementary Education (Provincialisation)
Act, 1974 (Assam Act No. VI of 1975) to provide for provincialisation of the
elementary education in the State of Assam, in terms whereof the services of
employees of the different categories of the State Board and Regional Boards
for Elementary Education were to be provincialised for the purpose of bringing
them under the direct management and control of the State Government. Pursuant
to or in furtherance of the said Act, all assets and liabilities of the State
Board and all Regional Boards vested in the State Government. In terms of
Section 3 of the 1974 Act, the services of all teachers of elementary schools
and pre-primary schools maintained by the Regional Boards of Elementary
Education, all employees of the State Board of Elementary Education, all
teachers appointed by the Regional Boards of Elementary Education and all ministerial
staff appointed by the State Board of Elementary Education were provincialised
under the said Act.
consequence of vesting of the institutions maintained by the authorities under
the aforementioned three Acts is provided in Section 4A thereof which reads thus
of all teachers and employees who rendered services under the following
repealed Acts and whose services are taken over by the Government on provincialisation
on 5th September, 1975 under the principal Act shall be
deemed to be services under the Government and shall qualify and count for
pension and other retirement benefits." Section 27 (1) of the 1974 Act
provides for rule making power. Pursuant to or in furtherance thereof, the
State of Assam made rules for regulating the terms and conditions of services
of teachers of elementary schools and employees employed therein known as 'the
Assam Elementary Education (Provincialisation) Service and Conduct Rules, 1981
(hereinafter referred to as 'the 1981 Rules').
has been defined in Rule 2(xii) of the 1981 Rules to mean :
means service rendered under the State Board for Elementary Education
constituted under the Assam Elementary Education Act, 1968 and service rendered
under the Government before or after provincialisation both in respect of
teachers and other employees." Rule 3(i) of the said Rules reads thus :
and Conditions : The services of all teachers of Elementary Education taken
over by the Government on provincialisation on 5th September, 1975, as provided
under Section 3 of the Assam Elementary Education (Provincialisation) Act,
1974, as amended, shall be subject to the following conditions :
Services rendered during the repealed Acts:- The Assam Basic Education Act,
1954 (Act XXVI of 1954), the Assam Elementary Education Act, 1962 (Act XXX of
1962), and the Assam Elementary Education Act, 1968 (Act XVIII) of 1969) shall
be counted towards pension and other retirement benefits provided such services
are substantive and permanent.
Explanation: Services rendered temporarily
against leave or deputation vacancies shall be excluded.
They shall be entitled to such scales of pay and allowances and other benefits
as may be admissible to the teachers of corresponding rank of the Government School services with effect from the date of provincialisation.
They shall be superannuated on attaining 58 years of age." The said school
was not being maintained by any authority constituted under any of the
aforementioned statutes. A notification, however, was issued on or about
19.11.1991 whereby and whereunder the said school was provincialised.
Indisputably, the names of the appellant herein and a large number of teachers
were dropped from the list of approved teachers and their services had not been
provincialised under the provisions of the 1974 Act.
Assam Middle English School Association of which the appellant is said to be a
member filed a writ petition before the Assam High Court for regularization of
services of the dropped teachers, which was marked as Writ Petition No.2833 of
1997. The said writ petition was dismissed where- against an appeal before the
Division Bench was filed being Writ Appeal No.474 of 1997. The Division Bench
while reversing the judgment of the learned Single Judge by reason of a
judgment and order dated 13.11.1998, inter alia, directed :
the purpose of enabling the Government to complete process of regularization/provincialisation,
the appellants association will furnish all necessary documents and particulars
including names of concerned assistant teachers to the Director of Elementary
Education, Assam, within two weeks from today. It
will be open for the State Government to consider regularization/provincialisation
of Assistant Teachers dropped at the time of provincialisation of ME and ME Madrassas
during the year 1991-92 in addition to 1123 Assistant Teachers in case they
find genuineness in the claims of such additional Assistant Teachers.
impugned order dated 25.6.97 of the learned Single Judge passed in CR
No.2833/97 is set aside and the writ appeal is disposed of in terms of the
aforesaid directions. But considering, however, the facts and circumstances of
the case, the parties shall bear their own costs." Pursuant to or in
furtherance of the said directions, the services of 190 working teachers were
sought to be regularized w.e.f. 24.4.1998 by an order dated 8.1.1999 stating :
services of the teachers may be regularized out of the posts already allotted
to you vide this office letter No.EPD/OB/6/98/156 dated 24.4.98.
issuing the regularization order to the working teacher concern the Dist.
Oficer should authenticate the same. The name of the teachers and the name of
the schools as furnished the list received from Govt. The regularization of
service of working teachers should be made on seniority basis as per physical
verification report of Dist. Ele. Edn. Officer concerned and were working
before the date of provincialisation of school and duly approval of the posts
against section. No teachers should be regularized in case of readjustment of
schools as per need of enrolment without prior approval of this
Directorate..." It appears that the District Elementary Education Officer
by a letter dated 16.12.1999 addressed to the Secretary to the Government of
Assam allegedly informed the latter about regularization of 97 numbers of
dropped teachers and brought to his notice that it may be necessary to take
steps for regularization of other teachers by creating posts therefor. As,
allegedly, the order of the High Court was not complied with, a contempt
petition was filed wherein in his affidavit the District Elementary Education
Officer alleged that in compliance with the order of the court dated
13.11.1998, the services of 105 dropped teachers were regularized w.e.f.
24.4.1998 by an order dated 30.10.2000, and therein the name of the appellant
found place at Sl. No.28. It, however, appears that the appellant herein
stopped attending the said school whereafter the Head Master of the said School
by letters dated 2.5.2000, 12.6.2000 and 21.8.2000 asked the appellant to come
to the school with sufficient cause for his absence failing which action would
be taken against him. The appellant neither joined the School nor replied to the
said notices. The Managing Committee of the said School adopted a resolution to
the following effect :
Md. Sultan Sadique, Assistant Teacher has unauthorisedly been absent from his
duty without any notice/intimation and it has been informed him on 2.5.2000,
12.6.2000 and 21.8.2000 by serving written notices.
reply has been received from him in this regard.
matter has thoroughly been discussed in today's and unanimously decides that in
the interest of the school, Md. Sultan Sadik, Assistant Teacher of the Pabha Charali
M.E. Madrassa has been released from his post with immediate effect.
also been decided to inform the authority concerned to take necessary
action." A copy of the said resolution was forwarded to the appellant herein
and a copy thereof was sent to the District Elementary Education Officer and
the Block Elementary Education Officer by the Head Master of the said School by
letter dated 30.8.2000, which is to the following effect :
of the Head Master and Secretary Pabha Charali ME Madrassa, P.O. Kutubpur :
Dist. Lakhimpur Date : 30.8.2000 To Md. Sultan Sadik Assistant Teacher Pabha Charali
M.E. Madrassa Subject : Release from service Sir, With reference to the subject
cited above and due respect it has been informed you that the Managing
Committee of Pabha Charali M.E. Madrassa vide its resolution No.1 passed in its
meeting held on 25.8.2000 decided to release you from the post of Assistant
Teacher from Pabha Charali M.E. Madrassa.
decision will be implemented with immediate effect.
yours, Sd/- illegible Seal : Headmaster Pabha Charali M.E. Madrass, PO Kutubpur
Dist. Lakhimpur" It is not in dispute that that the appellant herein
despite receipt of the said purported order dated 30.8.2000 did not question
the legality or validity thereof. He accepted the said order.
notification for holding an election was issued on 16.4.2001. The appellant and
the first respondent herein amongst others pursuant thereto filed their
nomination papers. The first respondent herein filed objections to the
nomination of the appellant on the ground that he was a Government employee and
hence ineligible for contesting the election. The appellant herein took the
stand that as despite order of regularization passed in his favour, he did not
join duties nor received any salary, he was not a Government employee. The said
plea was accepted. In the election, as noticed hereinbefore, the appellant was
elected whereafter the election petition was filed by the first respondent.
High Court having regard to the pleadings of the parties, inter alia, framed
the following issues:
Whether the Respondent No.1 on the date of his nomination held any office of profit
Whether on the date of scrutiny of nomination papers and also on the date of
election the Respondent No.1 was disqualified for being chosen to the
Legislative Assembly of the 191(1)(A) of the Indian Constitution and Section
100(1)(a) and Section 100(1((d)(iv) of the Act ?"
High Court in its impugned judgment held that :
Assistant Teacher in the school whose services had been provincialised by the
Government of Assam would be holder of an office of profit under the State of
Assam, in view of the order of the High Court in Writ Appeal No.474 of 1997
whereby and whereunder the State was directed to consider cases of 1123 dropped
teachers for regularization/provincialisation;
As pursuant to or in furtherance thereof the services of several teachers
including that of the appellant were regularized in terms of order dated
8.1.1999 (Ext.9) as also the order dated 30.10.2000 (Ext.14) wherein the name
of the appellant found place at Sl. No.28, he would be deemed to have become an
Assistant Teacher with retrospective effect from 24.4.1998.
in view the fact that the appellant was in Government service on 25.8.2000, the
Managing Committee of the said school had no authority to terminate his
services without approval of the appropriate authority of the Government
Although proceedings of the Managing Committee bore the endorsement of the
Block Elementary Education Officer, it had no authority to terminate the
services of the appellant. Even if the appellant was a dropped teacher, the
question of the Managing Committee releasing or relieving him would not arise
and, thus, the said order dated 25.8.2000 is of no legal effect;
There is no explanation as to why even after 30.8.2000 the Head Master
requested the District Elementary Education Officer to take action against the
appellant for his absence from duty, which also shows that the Head Master
considered him to be a regularized teacher on that day;
The letter dated 30.10.2000 must be presumed to have been served upon the
appellant in terms of Section 114 of the Evidence Act;
As the effect of regularization of provincialisation/regularization has been
provided for under the Act, the non-joining or non-drawing of any salary by the
appellant was irrelevant.
aforementioned findings, the election petition was allowed by the High Court.
V.A. Mohta, learned Senior Counsel appearing on behalf of the appellant would
submit that having regard to the fact that the appellant had been served with
notices on 2.5.2000, 12.6.2000 and 21.8.2000 by the School and furthermore in
view of the order dated 30.8.2000 as also the resolution of the Managing
Committee dated 25.8.2000, the purported order of regularization dated
30.10.2000 cannot be said to have been acted upon. The learned counsel would
urge that the High Court committed a manifest error insofar as it failed to
consider the purport of the letter dated 30.8.2000 (Ext.G), genuineness whereof
is not in dispute.
would submit that as the appellant has accepted the said order of termination,
the first respondent had no locus standi to question the same. Our attention in
this behalf has also been drawn to the show cause filed by the District
Elementary Education Officer, Lakhimpur in the contempt proceedings. The
learned counsel would contend that as the order of regularization was passed
only on 30.10.2000, the same was non est in the eye of law. It was further
submitted that even from the said order dated 30.10.2000, it would appear that
one Naseema Begum claimed seniority over the appellant on the ground that he
superseded her and, thus, even the order of regularization did not attain
finality. The learned counsel would submit that in terms of Rule 8 of 1981
Rules, a register is required to be opened at the beginning of service by the
DI of School and as no service records had been opened the appellant cannot be
said to be holder of an office of profit under the State. Relying on or on the
basis of a decision in R.P. Moidutty vs. P.T. Kunju Mohammad and Another
[(2000) 1 SCC 481], the learned counsel would argue that the first respondent
herein has failed to discharge his heavy onus.
would also contend that the High Court committed an error in setting aside the
election on mere surmises and conjectures.
U.N. Bachawat, learned Senior Counsel appearing on behalf of the respondents,
on the other hand, would submit that the expression 'regularization' connotes
that the services of a person who has irregularly been appointed would be made
regular and, thus, such an order can be given to have a retrospective effect.
Strong reliance, in this regard has been placed on State of Mysore and Another
vs. S.V. Narayanappa [AIR 1967 SC 1071] and B.N. Nagarajan and Others etc. vs.
State of Karnataka and Others etc. [AIR 1979 SC 1676].
learned counsel would contend that as the institution stood provincialised in
terms of notification dated 19.11.1991 issued by the State of Assam, as would
appear from the deposition of the Head Master of the School, the consequences
provided for in Section 4A of the Act and Rule 3 of the 1981 Rules shall ensue
in terms whereof the appellant would be deemed to be a Government servant with
retrospective effect from 24.4.1998. Mr. Bachawat would urge that keeping in
view of the provisions of Section 87 of the Representation of the People Act
and having regard to the pleadings of the parties as contained in Para 16 of
the election petition and para 18 of the written statement wherefrom it would
appear that the factum of provincialism had not been denied or disputed and,
thus, the same would be deemed to have been admitted and, in that view of the
matter it was not necessary for the High Court to consider the effect of mode
of provincialisation of teachers. The learned counsel would contend that the
role of the Managing Committee of a provincialised school being a limited one,
the purported resolution dated 25.8.2000 and letter dated 30.10.2000 being
wholly illegal and without jurisdiction , the same would be non est in the eye
of law. Strong reliance in this behalf has been placed on Mysore State Road
Transport Corporation vs. Mirja Khasim Ali Beg and Another [AIR 1977 SC 747].
The learned counsel would submit that in view of the aforementioned legal
position, it was not even necessary for the authorities of the State of Assam
to communicate the order of regularization dated 30.10.2000 insofar as the same
would be deemed to be communicated as soon as it went out of the control of the
District Elementary Education Officer. Reliance has been placed on State of
Punjab vs. Khemi Ram [AIR 1970 SC 214]. Non- receipt of salary by the appellant
is also not relevant in view of the fact that the State has made budgetary
provision therefor according to Mr. Bachawat and in support of his
aforementioned contention he relied upon M.V. Rajashekaran & Ors. vs. Vatal
Nagaraj & Ors. [JT 2002 (1) SC 237].
parties have not brought on records the offer of appointment, if any, issued in
favour of the appellant herein by the Managing Committee of the said School at
the time of his joining. Admittedly, he had been rendering his services in the
School without any remuneration. The terms and conditions of his job are not
known. It is admitted from the records that he fought election in the year 1998
and during the relevant period he discontinued going to the School but
thereafter again he started going to the School.
also not disputed he had not been going to the School for a long time, as a
result whereof the said letters 2.5.2000, 12.6.2000 and 21.8.2000 came to be issued
. The authenticity of the letter of the Head Master dated 30.8.2000 is not in
question in the aforementioned situation would be as regard the effect thereof vis-`-vis
his purported regularization in terms of letter dated 30.10.2000 w.e.f. 24.4.1998.
statutory provisions, as referred to hereinbefore, ex facie demonstrate that
the 1974 Act was enacted for the purpose of the provincialisation of services
of employees of different categories of the State Board and Regional Boards for
Elementary Education and bringing them under direct management and control of
the State Government.
pleadings of the parties before the High Court do not reveal that the School in
question was maintained by the Regional Board. Had it been so, the question of
the appellant being a dropped teacher would not have arisen.
no occasion would have also arisen for the State of Assam to issue a separate
notification dated 19.11.1991 for provincialisation of the said school. We have
also not been shown any provision of law in terms whereof such a notification
could be issued. Be that as it may, the fact remains that the appellant herein
was not recognised as a teacher working in the said School. He continued to
render voluntary services without receiving any remuneration. It may be that
such rendition of service by the appellant or the teachers similarly situated
was on the hope or belief that their services would also be provincialised by
the State one day or the other. But only by reason thereof, it is difficult to
conceive that a relationship of a master and servant came into being by and
between the management of the School and the appellant.
if such a relationship existed, the same was a fragile one. The services of the
appellant in terms of the 1974 Act or the rules framed thereunder were not
protected.. He did not enjoy any status; his services could be dispensed with
by the Managing Committee of the said School at any time.
after provincialisation of the School, keeping in view the admitted fact that
the appellant was not an approved teacher, it must be held that he was merely
rendering some services and, thus, either in law or on fact, no jural
relationship between the State and the appellant came into being.
High Court, however, proceeded on the basis that such a relationship existed.
It opined that the order of the Division Bench dated 13.11.1998 was mandatory
in character. The fact that the said order attained finality is not in dispute
but a bare perusal of the directions issued therein would reveal that the
Association was asked to furnish necessary documents and particulars including
names of the concerned teachers so as to enable the State to consider and
complete the process of regularization/provincialisation of ME Madrassas during
the year 1991-92 in addition to 1123 Assistant Teachers in case they find
genuineness of claims of such Assistant Teachers.
order dated 8.1.1999 of the Director of Elementary Education stated that the
services of the teachers should be regularized out of the posts already
allotted to the concerned District Elementary Education Officer. He was asked
to authenticate list of working teachers before regularization of services of
such teachers. Despite that the name of the appellant appeared at Sl. No.56
thereof, such a direction was not final. The letter of the District Elementary
Education Officer dated 16.12.1999, although discloses that he had finalized
the list of 97 names, no order pursuant thereto had been issued. Even the order
dated 30.10.2000 says that such purported provincialisation/regularization was
provisional in nature.
regularization was further subject to the outcome of order dated 25.9.2000 in
Writ Appeal No.474 under C.R. No.2833 of 1997 in Contempt Case (C) No. 420 of
2000 of the High Court of Gauhati. From the list of dropped teachers purported
to have been regularized from 24.4.1998, it appears that there existed a
factual dispute as to whether the appellant superseded one Mst. Naseema Begum
who had joined the said School on 1.4.1984 or not. The appellant contended that
he even did not receive the said purported order of regularization. The High
Court having regard to the provisions contained in Section 114 of the Evidence Act,
was of the opinion that a presumption that he had received the said order could
be drawn but it failed to take into consideration that such presumption stood
rebutted when the appellant stated on oath that he did not receive such letter.
In such an event, the onus was on the election petitioner to show that the same
had been delivered or tendered to him by the postal peon of the concerned post
office. It is not a case where the High Court directed regularization of
services of the appellant. It is furthermore not a case where the posts were existing
on the date on which the appellant joined the said School. The additional
posts, admittedly, had been created by the State in the year 1998. Prior to
30.10.2000, thus, there existed no relationship of master and servant. The
offer came to be made by the State to the appellant only on the issuance of the
said order. The said offer was not only required to be communicated but also
was required to be accepted by the appellant.
true that the school in question stood provincialised in terms of the
notification issued by the State of Assam but the same by itself would not lead
to the conclusion that the services of the Assistant Teachers working therein
stood automatically provincialised. Had such consequences of provincialisation
of the school been flown from the notification, it would not have been
necessary for the teachers to approach the High Court. The very fact that even
in terms of the order of the High Court, the genuineness of claims of the
concerned Assistant Teachers was required to be verified is itself a pointer to
the fact that no order of regularization could be passed pursuant to or in
furtherance of the judgment of the High Court only.
not a case, it will bear repetition to state, where the State or its authorised
officer made an appointment of an employee either on ad hoc basis or on daily
wages or on contract basis or otherwise. Only in cases of such irregularities
in the matter of appointment, the employees can be regularized in their
S.V. Narayanappa (supra) whereupon Mr. Bachawat strongly relied, this Court
stated that for the purpose of application of a Government order, it must be
shown that the local candidate claiming the benefit thereof must satisfy that
he was initially appointed prior to 31.12. 1959 and was in service on 1.1.1960
and continued till 22.9.1961. It was held :
construction finds support from sub-cl. (iii) which provides that local service
prior to regularization would be counted for the purposes of leave, pension and
increments though not for seniority as seniority was to be fixed from the
length of service calculated from the date of regularization. It is manifest
that unless the local service was continuous such service could not be taken
into account for the purposes, in particular of pension and increments.
would increments, for example, be granted unless the service prior to such
increments was continuous? The same consideration would also apply in the case
of pension. It had, therefore, to be provided as has been done in sub-cl.
a break in service would not be condoned for a period howsoever short.
Continuity of service is thus a condition for both sub-cls. 2 and 3..."
Yet again in B.N. Nagarajan (supra), this Court repelled the argument that
regularization gives a colour of permanence and the appellants therein must be
deemed to have acquired substantive rights stating :
argument however is unacceptable to us for two reasons. Firstly the words
"regular" or "regularization" do not connote permanence. They
are terms calculated to condone any procedural irregularities and are meant to
cure only such defects as are attributable to the methodology followed in
making the appointments. They cannot be construed so as to convey an idea of
the nature of tenure of the appointments...." It is interesting to note
that therein this Court quoted with approval a decision of this Court in R.N. Nanjundappa
vs. T. Thimmaiah [(1972) 2 SCR 799], which is to the following effect :
the appointment itself is in infraction of the rules or if it is in violation
of the provisions of the Constitution illegality cannot be regularized.
Ratification or regularization is possible of an act which is within the power
of province of the authority but there has been some non-compliance with
procedure or manner which does not go to the root of the appointment.
Regularization cannot be said to be a mode of recruitment. To accede to such a
proposition would be to introduce a new head of appointment in defiance of
rules or it may have the effect of setting at naught the rules." These
decisions of this Court do not support the contention of Mr. Bachawat and in
fact run counter thereto.
not the case of the parties that there existed even semblance of any legal
right of the appellant and there existed a relationship of employer and
employee between the State and him. In law the appellant did not enjoy any
status. His services had not been recognized by the State.
terms and conditions of his services were not governed by any statute and,
thus, the same were not protected. The relationship of employer and employee,
if any, between the State and the appellant was to come into being (may be with
retrospective effect) only upon receipt of the offer of an appointment dated
30.10.2000 and acceptance thereof by him.
contract of service in absence of any statutory provisions must be preceded by
an offer and acceptance. A contract of service in absence of any statute, a
fortiori is also governed by the provisions of the Indian Contract Act. It is,
therefore, not correct to contend that the order dated 30.10.2000 was not
required to be communicated for making a valid contract of service. It was
absolutely necessary to communicate the said order to the appellant by the
State, acceptance thereof whether expressly or by necessary implications by the
appellant was also required. The appellant did not do it nor it is the case of
the State or the statutory authorities that such a relationship had come into
decision of this Court in Khemi Ram (supra) relied upon by Mr. Bachawat is not
apposite as therein an order of suspension was in question. This Court in the
said decision itself referred to its decision in State of Punjab vs. Amar Singh
Harika [(AIR 1966 SC 1313], which stated that communication of an order
dismissing an employee from service is imperative. If communication of an order
for terminating the jural relationship is imperative, a fortiori it would also
be imperative at the threshold.
High Court proceeded to render its opinion on a wrong premise. It was not a
case where the High Court having regard to the provisions contained in Article
191 of the Constitution of India vis-`-vis- Section 100 of the Representation
of the People Act was required to determine a question as to whether the
appellant being holder of an office of profit of the Government of the Assam
was wrongfully dismissed from his services. Only holding of an office of profit
under the Government of India or the Government of any State would render a
candidate disqualified from contesting an election. Only in that event, the
High Court could have been entitled to declare such election as a void one, but
the question involved herein is not so.
was necessary to be considered by the High Court was as to whether any
relationship of employer and employee between the State of Assam and the
appellant herein came into being. The submission of Mr. Bachawat, therefore, to
the effect that the High Court had the requisite jurisdiction by invoking the
doctrine of "implied powers" to go into the question of
termination/dismissal/removal of the appellant does not arise for consideration
in the instant case.
OF RESOLUTION DATED 25.8.2000:
even the de facto relationship of employer and employee (as contra-distinguished
from de jure relationship) existed, the same came to an end in view of the
aforementioned resolution of the Managing Committee of the said School and the
communication thereof by the Head Master of the said School to the appellant in
terms of letter dated 30.8.2000. An administrative order can be challenged in a
proper forum only by the right person for a right remedy.
Administrative Law, Eighth Edition by HWR Wade & C.F. Forsyth, at p. 293,
it is stated :
officer de facto is one who has the reputation of being the officer he assumes
to be, and yet is not a good officer in point of law." The question as to
whether the relationship of the appellant with the said School could be validly
terminated by the Managing Committee or not could have been raised only in an
appropriate proceeding where the State was a necessary party.
order may be void for one and voidable for the other. An invalid order
necessarily need not be non est; in a given situation it has to be declared as
such. In an election petition, the High Court was not concerned with the said
Administrative Law, Eighth Edition by HWR Wade & C.F. Forsyth, at page 309,
it is stated :
on third parties : If an act or order is held to be ultra vires and void it is
natural to assume that, being a nullity, it is to be treated as non-existent by
all who would otherwise be concerned. But the judgment of a court binds only
the parties to it, so that here also there are problems of relativity. Once
again Lord Diplock has supplied the answer.
such a decision is directly binding only as between the parties to the
proceedings in which it was made, the application of the doctrine of precedent
has the consequence of enabling the benefit of it to accrue to all other
persons whose legal rights have been interfered with in reliance on the law
which the statutory instrument purported to declare.
effect, therefore, the court's judgment of nullity operates erga omnes, i.e.
for and against everyone concerned.
and latent invalidity In a well-known passage Lord Radcliffe said :
order, even if not made in good faith, is still an act capable of legal
consequences. It bears no brand of invalidity upon its forehead. Unless the
necessary proceedings are taken at law to establish the cause of invalidity and
to get it quashed or otherwise upset, it will remain as effective for its
ostensible purpose as the most impeccable of orders.
must be equally true even where the 'brand of invalidity' is plainly visible : for
there also the order can effectively be resisted in law only by obtaining the
decision of the court.
necessity of recourse to the court has been pointed out repeatedly in the House
of Lords and Privy Council, without distinction between patent and latent
defects. Lord Diplock spoke still more clearly, saying that it leads to
confusion to use such terms as 'voidable' 'voidable ab initio', 'void' or 'a
nullity' as descriptive of the status of subordinate legislation alleged to be
ultra vires for patent or for latlent defects, before its validity has been
pronounced on by a court of competent jurisdiction." The appellant herein
had accepted the order of termination. In that view of the matter, the High
Court could not have proceeded on the basis that the order of termination was
illegal. So long as the order of provincialisation was not issued, as noticed
hereinbefore, there was no relationship of employer and employee between the
appellant and the State of Assam. The appellant had been working subject to the
discretion of the Managing Committee. His voluntary services could be refused
to be taken by the Managing Committee of the School. The question would have
been otherwise, had the purported service conditions of the appellant been
governed by a statute or statutory rules, regularization of a teacher would be
permissible in law, if he remains a teacher on the day on which such an order
is passed. Had he been in service on 30.10.2000, the same could have been
regularized with retrospective effect but he was not in service of the School
and on that date the question of his regularization would not arise. It is only
in that context the High Court was required to consider as to whether the
validity or otherwise of the order of termination passed by the Managing
Committee could have been the subject matter of a decision by an Election
contention of Mr. Bachawat to the effect that services of an employee can only
be terminated in certain situations could have been accepted if the jural
relationship had come into being and not otherwise.
the reasons aforementioned, we are of the opinion that the High Court has
committed a manifest error in holding that the appellant being a holder of an
office of profit disentitled himself from contesting the election in terms of
Article 191 of the Constitution of India.
appeal, therefore, is allowed. The judgment and order of the High Court under
challenge is set aside.
in the facts and circumstances of the case, there shall be no order as to