of A.P. & Ors. Vs. K. Brahmanandam & Ors.  INSC 726 (29 April 2008)
S.B. Sinha & Lokeshwar Singh Panta
REPORTABLE CIVIL APPEAL NO. 3043 OF 2008 [Arising out of SLP (Civil) No.
20561 of 2006] S.B. SINHA, J :
1. Leave granted.
2. Whether the State or the Educational Institution is liable to bear the
financial burden for payment of wages to the concerned respondents herein is
the question involved in this appeal which arises out of a judgment and order
dated 25.08.2005 passed by the High Court of Andhra Pradesh in Writ Appeal No.
1321 of 2001.
3. Respondents, seven in number, were appointed as Secondary Grade Teachers
in Church of South India, UP Elementary School. Allegedly, the provisions of
the rules had not been followed in recruiting the teachers.
Indisputably, such rules of recruitment had been laid down by G.O.Ms. No.
1 dated 1.01.1994. The said rules were framed by the State in exercise of
its power conferred upon it under Section 99 read with Sections 20, 21, 79, 80
and 83 of the Andhra Pradesh Education Act, 1982 known as the Andhra Pradesh
Educational Institutions (Establishment, Recognition, Administration and
Control Of Schools Under Private Managements) Rules, 1993 (for short "the
4. The Rules categorized several schools; Upper Primary Schools being one of
them. The Rules defines the "Educational Agency" in Rule 2(1)(b) to
mean "the Society/ Trust/ Association including Endowment, Board/ Wakf
Board and Christian Mission (Church/ Diocese or Congregation) and the like,
sponsoring/ managing/ running the schools". "Minority Educational
Institution" has been defined in Rule 2(f) of the Rules to mean "any
educational agency of which at least 2/3rd members belong to a religious /
5. Rule 7 of the Rules provides for scrutiny and grant of permission on an
application filed therefor by the institution in question. Rule 9 provides for
the manner in which recognition can be granted. Rule 10 provides for the
conditions for grant of permission and recognition. Rule 12 provides for the
appointment of staff. Sub-Rule (3) of Rule 12 mandates that advertisement for
recruitment shall be made at least in two newspapers having large circulation.
The Employment Exchange is also required to be notified in regard to the
vacancies. A Staff Selection Committee constituted for undertaking the
recruitment process is to consist of a nominee of the District Educational
Officer not below the rank of Deputy Educational Officer. Sub-Rule (8) of Rule
12 provides that all appointments should be subject to the approval of the
6. It is stated that the management of the institution, before the
recruitment of the respondents, neither obtained any prior permission from the
District Educational Officer nor made advertisement in two newspapers nor
notified the vacancies to the Employment Exchange. Even no order of approval as
regards the said appointments was obtained from the District Education Officer.
The State contends that the selection process had been undergone hurriedly,
which created a lot of suspicion.
Respondents, however, contend that they were appointed as Secondary Grade
Teachers at different places through due selection process and they had been
performing their duties to the utmost satisfaction of the authorities of the
concerned schools. Indisputably, their salaries had not been paid. They made
representations therefor. Their representations were rejected by the District
Education Officer by an order dated 10.12.1999.
7. Respondents thereafter filed writ petitions before the High Court. The
State filed a counter affidavit wherein it was inter alia contended that the
writ petitioners respondents had been appointed through side door(s) by the
then Correspondent Rev. Prasad Rao in collusion with the teachers concerned as
also the then Education Officer.
A learned Single Judge of the High Court relying on the principles laid down
by this Court in Ashok Kumar Yadav v. State of Haryana [AIR 1987 SC 454] as
also on the premise that the said respondents have been working for several
years and as furthermore they possessed minimum qualification held that only
because the procedural aspects had not been followed as per the said GOMs No. 1
dated 1.01.1994 and other directions from time to time, the same would not be a
bar for grant of relief in their favour, stating:
"In my considered view, the same principle will also apply to the facts
of this case. Admittedly, the petitioners are continuing in service for more
than 8 years and it would be inequitable to disturb them at this distance of
8. On an intra court appeal having been filed, a Division Bench of the said
Court dismissed the appeal, stating :
"The main grievance of the respondents is that though they were
appointed as Secondary Grade Teachers, through due selection process, neither
their appointments were approved nor they were paid any salary till date. In
earlier round of litigation, in W.P. No. 9616 of 1995, this court directed the
authorities concerned to consider the proposals sent by the Management on
1.4.1996 and take appropriate decision. In pursuance thereof, the fourth
appellant passed orders on 10.12.1999 rejecting the cases for approval. The
case of the respondents is that they have put up sufficient length of service.
The learned Single Judge placed reliance on the Judgment cited supra and held
that it would be unjust to disturb the respondents after eight years of service
and accordingly set aside the impugned order passed by the fourth appellant. In
the above background of the case, we are of the opinion that the learned Single
Judge has arrived at a just conclusion and the same, in our considered opinion,
deserves no interference."
9. Mr. R. Sundraravardhan, learned senior counsel appearing on behalf of the
appellants, would submit that the State has no liability to pay the salary of
the concerned teachers keeping in view the fact that their services had not
been approved. The learned counsel would further contend that it is not even a
case where paragraph 53 of the Constitution Bench decision of this Court in
Secretary, State of Karnataka and Others v. Umadevi (3) and Others [(2006) 4
SCC 1] would apply.
10. Mr. G. Ramakrishna Prasad, learned counsel appearing on behalf of the
respondents, on the other hand, would contend that in view of passage of time
and particularly in view of the fact that the respondents had been continuing
to work for a long time, this Court should not interfere with the impugned
11. The liability of the State to pay salary to a teacher appointed in the
recognized schools would arise provided the provisions of the statutory rules
are complied with, subject to just exception. The right to claim salary must
arise under a contract or under a statute. If such a right arises under a
contract between the appointee and the institution, only the latter would be
liable therefor. Its right in certain situation to claim reimbursement of such
salary from the State would only arise in terms of the law as was prevailing at
the relevant time. If the State in terms of the statute is not liable to pay
the salary to the teachers, no legal right accrues in favour of those who had
been appointed in violation of mandatory provisions of the statute or statutory
12. The equality clause contained in Articles 14 and 16 of the Constitution
of India, it is trite, must be scrupulously followed. The court ordinarily
would not issue a writ of or in the nature of mandamus for regularization of
the service of the employee which would be violative of the constitutional
13. Appointments made in violation of the mandatory provisions of a statute
would be illegal and, thus, void. Illegality cannot be ratified.
Illegality cannot be regularized, only an irregularity can be.
The said legal principle has been enunciated by a Constitution Bench of this
Court in Umadevi (3) (supra), para 53 whereof reads as under:
"53. One aspect needs to be clarified. There may be cases where
irregular appointments (not illegal appointments) as explained in S.V.
Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15
above, of duly qualified persons in duly sanctioned vacant posts might have
been made and the employees have continued to work for ten years or more but
without the intervention of orders of the courts or of tribunals.
The question of regularisation of the services of such employees may have to
be considered on merits in the light of the principles settled by this Court in
the cases abovereferred to and in the light of this judgment. In that context,
the Union of India, the State Governments and their instrumentalities should
take steps to regularise as a one-time measure, the services of such
irregularly appointed, who have worked for ten years or more in duly sanctioned
posts but not under cover of orders of the courts or of tribunals and should
further ensure that regular recruitments are undertaken to fill those vacant
sanctioned posts that require to be filled up, in cases where temporary
employees or daily wagers are being now employed. The process must be set in
motion within six months from this date. We also clarify that regularisation,
if any already made, but not sub judice, need not be reopened based on this
judgment, but there should be no further bypassing of the constitutional
requirement and regularising or making permanent, those not duly appointed as
per the constitutional scheme."
14. We are not unmindful of the fact that the said paragraph has been
interpreted differently by different Benches. Some benches have remitted the
matter back to the tribunal/authorities for consideration of the matter afresh
in the light of the said observations, e.g., in Mineral Exploration Corporation
Employees' Union v. Mineral Exploration Corporation. Ltd. and Anr. [(2006) 6
SCC 310], it was directed :
"We, therefore, direct the Tribunal to decide the claim of the workmen
of the Union strictly in accordance with and in compliance with all the
directions given in the judgment by the Constitution Bench in Secy., State of
Umadevi (3) and in particular, paras 53 and 12 relied on by the learned
Senior Counsel appearing for the Union. The Tribunal is directed to dispose of
the matter afresh within 9 months from the date of receipt of this judgment
without being influenced by any of the observations made by us in this judgment.
Both the parties are at liberty to submit and furnish the details in regard to
the names of the workmen, nature of the work, pay scales and the wages drawn by
them from time to time and the transfers of the workmen made from time to time,
from place to place and other necessary and requisite details. The above
details shall be submitted within two months from the date of the receipt of
this judgment before the Tribunal."
15. On the other hand, in some of the cases, the said paragraph, for
example, in the decision of this Court in Municipal Corporation, Jabalpur v.
Om Prakash Dubey [(2007) 1 SCC 373] had been applied to the following
"The question which, thus, arises for consideration, would be : Is
there any distinction between 'irregular appointment' and 'illegal
appointment'? The distinction between the two terms is apparent. In the event
the appointment is made in total disregard of the constitutional scheme as also
the recruitment rules framed by the employer, which is State within the meaning
of Article 12 of the Constitution of India, the recruitment would be an illegal
one; whereas there may be cases where, although, substantial compliance of the
constitutional scheme as also the rules have been made, the appointment may be
irregular in the sense that some provisions of the rules might not have been
strictly adhered to."
[See also Punjab Water Supply & Sewerage Board v. Ranjodh Singh and
Others etc. (2007) 2 SCC 491, Punjab State Warehousing Corp., Chandigarh v.
Manmohan Singh and Anr., 2007 (3) SCALE 401 and Post Master General, Kolkata
& Others v. Tutu Das (Dutta) 2007 (6) SCALE 453]
16. In the light of the decision of this Court in Umadevi (3) (supra), para
53 thereof would be applicable subject to the condition that the matter had not
been pending before any court or tribunal. Indisputably, the litigation between
the parties was pending since January, 2000. The institution's application for
approval of the said appointments had been rejected.
Therefore, para 53 of Umadevi (3) (supra) has no application.
17. Even in relation to application of the concept of equal pay for equal
work, the Constitution Bench held:
"44. The concept of "equal pay for equal work"
is different from the concept of conferring permanency on those who have
been appointed on ad hoc basis, temporary basis, or based on no process of
selection as envisaged by the rules. This Court has in various decisions
applied the principle of equal pay for equal work and has laid down the
parameters for the application of that principle.
The decisions are rested on the concept of equality enshrined in our
Constitution in the light of the directive principles in that behalf. But the
acceptance of that principle cannot lead to a position where the court could
direct that appointments made without following the due procedure established
by law, be deemed permanent or issue directions to treat them as permanent.
Doing so, would be negation of the principle of equality of opportunity. The
power to make an order as is necessary for doing complete justice in any cause
or matter pending before this Court, would not normally be used for giving the
go-by to the procedure established by law in the matter of public employment.
Take the situation arising in the cases before us from the State of Karnataka.
Therein, after Dharwad decision the Government had issued repeated directions
and mandatory orders that no temporary or ad hoc employment or engagement be
given. Some of the authorities and departments had ignored those directions or
defied those directions and had continued to give employment, specifically
interdicted by the orders issued by the executive.
Some of the appointing officers have even been punished for their defiance.
It would not be just or proper to pass an order in exercise of jurisdiction
under Article 226 or 32 of the Constitution or in exercise of power under
Article 142 of the Constitution permitting those persons engaged, to be
absorbed or to be made permanent, based on their appointments or engagements.
Complete justice would be justice according to law and though it would be open
to this Court to mould the relief, this Court would not grant a relief which
would amount to perpetuating an illegality."
18. In view of the decision in Umadevi (3) (supra), we are of the opinion
that the question of regularizing the services of the respondents does not
arise. Respondents writ petitioners (teachers), however, are entitled to
salary from the school authorities as they have worked even if no valid
contract had come into being. The salary amount would be payable in terms of
Section 70 of the Indian Contract Act. The principles of quasi-contract,
however, must apply keeping in view the relationship between the parties. The doctrine of quasi-contract cannot be applied in a situation of this nature
as against the State.
19. For the reasons aforementioned, the appeal is allowed to the
aforementioned extent. It would, however, be open to the school authorities to
take such action, as it may deem fit and proper, in the light of the decision
of this Court in Umadevi (3) (supra). No costs.