State of Orissa &
ANR. Vs Mamata Mohanty
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1.
All
the aforesaid appeals have been filed against the judgments and orders of the
High Court of Orissa at Cuttack which have been passed placing reliance on its
earlier judgments in similar cases. The facts and legal issues involved herein are
the same. Thus, they are heard together and are being disposed of by the common
judgment and order. However, for convenience, Civil Appeal No. 1272 of 2011 is
taken to be the leading case and some reference to facts would be taken from
other appeals as and when necessary in the context of legal issues involved
herein.
2.
The
appeal has been preferred against the judgment and order dated 22.3.2006 of the
High Court of Orissa at Cuttack in Writ Petition (Civil) No. 14157 of 2005.
3.
FACTS:
A. The respondent was
appointed as a Lecturer in Niali College, Niali, on 9.7.1979 and her
appointment as such was approved by the Director of Higher Education, Orissa, a
statutory authority - the appellant No. 2, vide order dated 18.12.1985, and she
was granted the benefit of receiving 1/3rd grant-in-aid.
B. In order to provide
better facilities to teachers and enhance the standard of higher education, the
Government of Orissa, came out with a Notification dated 6.10.1989 with a revised
pay scale enforceable with effect from 1.1.1986 as per the recommendations of UGC.
However, the said Notification was applicable only in such 2 cases where the post
has been granted the benefit of grant-in-aid Scheme by 1.4.1989 and person manning
that post had a good academic record i.e. 54 per cent or its equivalent grade
in a Masters' Course.
C. Respondent did not
make any representation before any authority to get the benefit of the said Notification
dated 6.10.1989, rather approached the High Court on 11.11.2005 by filing Writ Petition
(Civil) No. 14157 of 2005 seeking a direction to the State Government to pay the
pre-revised pay scale with effect from 1.1.1986 placing reliance on the various
orders passed by the High Court earlier in cases of other persons e.g. in case
OJC No. 3705 of 1987.
D. The present
appellants contested the said writ petition pointing out that the respondent had
secured only 40 per cent marks in her Master's course. She was by no means,
eligible for appointment. Her appointment, being not in consonance with law,
remained illegal.
E. The High Court placing
reliance on its earlier judgments, allowed the said writ petition giving the benefit
of the U.G.C. pay scale to her w.e.f. 1.6.1984. Hence, this appeal.
4.
The
submissions made in all these appeals, particularly by the respondents are that
the High Court had been dealing with the subject 3 matter for a long time and judgments
of the High Court have been upheld by this court. Once the SLPs against the judgments
of the High Court which had been relied upon by the High Court while deciding these
cases, have been dismissed in limine, judicial discipline and decorum demand
that this Court should follow the same order. Thus, the judgments and orders impugned
herein did not warrant any interference.
5.
On
the other hand, it has been submitted by learned counsel for the appellants that
factual and legal issues involved in these cases have never been considered
either by the High Court or by this Court in proper perspective. For example,
in Civil Appeal No. 1274 of 2011, State of Orissa v. Mrs. Manju Patnaik, the
matter had initially been filed before the Orissa Education Tribunal. Therein,
the question arose as to whether the respondent herein had been appointed by
following the procedure prescribed by the law for making the appointment. As the
State had raised the issue that respondent had been appointed without following
any procedure known in law for this purpose her appointment itself was illegal and
void. The vacancy on the post of Lecturer in Chemistry in Paramananda College,
Bolgarh, Dist. Khurda was never advertised nor were the names of eligible candidates
requisitioned from the Employment Exchange. Admitted facts in the said case remain
that the vacancy was advertised merely by affixing notices on the notice board of
the College and of Bolgarh Block Office inviting applications from the eligible
candidates. More so, the respondent had not even faced an interview before the Selection
Board, as envisaged by the Statutory Rules in force at the relevant time,
rather she had been interviewed merely by representatives of the Committee of
Management of the College. The Tribunal accepted the case of the State to that
effect, but granted her reliefs sought by her. The High Court did not even consider
the issue of validity of her appointment.
6.
It
is further submitted that none of the courts till today has considered that in
case the institution has been accorded the benefit of grant-in-aid scheme
subsequent to 1.6.1986, there could be no liability of the government to contribute
partly or fully to the salary of any employee of the said college, prior to the
date of grant of such benefit, whether UGC pay scale could be given prior to
the date of according grant-in-aid benefits. In Civil Appeal No. 1318 of 2011, State
of Orissa v. Smt. Manjushree Patnaik, the post of respondent was included under
grant-in-aid scheme w.e.f. 1.6.1988. She did not 5 possess the requisite
qualifications and the said respondent was put in grant-in-aid with effect from
1988 though vide impugned judgment she has been given benefit from 1.1.1986.
7.
In
all these cases, admittedly most of the respondents did not possess the minimum
eligibility, i.e., 54% marks in Master's course and some of them acquired it at
a much later stage. It is pointed out by the learned counsel for the
respondents herein, that Utkal University at Bhubneshwar had condoned the deficiency
of eligibility- qualification by passing general orders from time to time.
However, they failed to point out any statutory provision conferring competence
upon the University to condone the deficiency, what to talk of reasonableness
or propriety in condoning such deficiency. It is evident from Civil Appeal No.
1280 of 2011, State of Orissa & Ors. v. Dr. Jadumani Sahoo, that the respondent
was appointed as a Lecturer in Political Science in Begunia College, Begunia,
Khurda, on 5.9.1978 and the post which he held came into grant-in-aid scheme on
1.6.1984. He acquired the degree of Ph.D. in 2000. His deficiency in qualification
was condoned after about 10 years by the Utkal University on 28.10.1987, and he
has also been granted the benefit of UGC pay scale w.e.f. 1.1.1986.
8.
There
are letters/circulars issued by the University as well as by the State of Orissa
for condonation of the deficiency. However, the question does arise as to whether
this kind of orders can be given effect to or be considered by the courts to
grant a relief to the persons whose appointments had been illegal for want of
eligibility and for not following the procedure prescribed by law, i.e.
advertisement, etc.
9.
Most
of the petitions had been filed before the High Court after 10-15-20 years for
grant of UGC pay scales w.e.f. 1.1.1986 and to pay the arrears etc. The High
Court in all the cases granted the same with effect from 1.1.1986 or even with
effect from 1.6.1984, without considering the issue of delay and laches, merely
placing reliance upon its earlier judgments. Thus, the question does arise as
to whether the delay and laches could be condoned all together giving the respondents
the impetus of the earlier judgments in cases of persons who had been diligent enough
to approach the Court within a reasonable period.
10.
It
has been further submitted by learned counsel for the respondents that teachers
in government colleges have also been granted the said benefit though not
entitled and the respondents herein 7 cannot be given hostile treatment in case
the impugned judgments and orders herein are not upheld. Thus, the question does
arise as to whether Article 14 of the Constitution is meant to perpetuate an illegality.
Considering the rival submissions made by learned counsel for the parties, we are
of the view that as the questions raised hereinabove had never been considered by
any of the courts and involve substantial questions of law of public importance,
the cases require proper adjudication.
11.
STATUTORY
PROVISIONS - RELEVANT PARTS:
A. The Orissa Education
(Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided
Educational Institutions) Rules, 1974 (hereinafter called `Rules 1974'). Rule 2
(i) - "University" means Utkal University, Berhampur University,
Sambalpur University and Sri Jagannath Sanskrit Vishwa Vidyalaya. Chapter II provides
for establishment of the Selection Board and Rule 4 reads that there will be a
Selection Board constituted by the 8 Government for the purpose of making
appointments of teaching and other staffs in aided schools. Rule 5(1) thereof provides
that the educational institutions would determine the vacancies subject-wise and
indicate the same to the Director of Education who shall process the
applications so received for those posts and transmit the same to the Selection
Board after determining the genuineness of the vacancies in a particular
college. Rule 5(2) - The Selection Board shall, on receipt of applications and certificates
referred to in Sub-rule (1) recommend a list of candidates in order of merit
strictly according to the number of vacancies, to the concerned Directors who shall
thereupon, allot candidates to the concerned institutions strictly in order of
merit as per vacancy. Rule 5(3) - Appointment shall be made by Managing
Committee or the Governing Body as the case may be, of the candidates allotted under
Sub-rule (2). Rule 6 provides for Procedure of Selection - (1) The Selection
Board shall, at such intervals as it deems proper, call for applications for various
posts in respect of which vacancies are likely to arise in the course of the
next one year in such manner as may be determined in the regulation of the
Selection Board. 9 (2) The Selection Board shall conduct examinations including
a viva voce examination of any candidate or all candidates with a view to determining
their merit and suitability in the matter appointed in its regulations. Rule 7
- Condition of eligibility of candidates - Provided that upper age limit may be
relaxable in respect of candidates belonging to Scheduled Castes, Scheduled Tribes
and such other categories as may be specified by Government from time to time
for recruitment to the similar or corresponding post under the Government.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
The
Orissa Aided Educational Institutions Employee's Common Cadre and Inter transferability
Rules, 1979 (hereinafter called Rules 1979), make the post of teaching staff transferable
to any other college, affiliated to any other University. In view of the above,
University means all the four universities of Orissa, not only Utkal University
at Bhubneshwar. It is the Selection Board constituted under the Rules 1974, which
could call the candidates for interview/tests and make the selection according
to merit. The Selection Board shall make the teachers available to individual colleges
as per their need. Thus, the Committee of Management does not have a right to make
the appointment of a 10 teacher of its own. More so, the teachers so appointed
are liable to be transferred throughout the State of Orissa even to a College which
may be affiliated to either of the aforesaid universities.
B. RELEVANT PART OF
NOTIFICATIONS/ CIRCULARS/ LETTERS:
i.
Government
of Orissa - Education and Youth Services Department Resolution dated 5.9.1978 dealt
with the subject- qualification for recruitment of lecturers in affiliated colleges
of the State of Orissa and the relevant part reads as under: "A
consistently good academic record with at least Ist or high second class (B in the
seven point scale) at the Master's degree in a relevant subject. In other words,
the University Grants Commission intended to determine high second class as average
of minimum percentage of marks of second division and first division as (48+60)
54%....."
ii.
Orissa
State Gazette, August 19, 1983 published a resolution dated 16.7.1983 prescribing
the eligibility for appointment of teachers in affiliated colleges. The
relevant part reads as under:
a. Candidate should have
an M.Phil degree or a recognized degree beyond Master's level with atleast a
second class Master's degree;
b. A candidate not
holding an M.Phil degree should possess a high second class Master's degree i.e.
54% of marks and a second class Honours/Pass in the B.A./B.Sc./B.Com
examination; or
c. A candidate not holding
an M.Phil degree but possessing a second class Master's degree should have
obtained a first class in the Honours/Pass in B.A./B.Sc./B.Com examination.
i.
ii.
iii.
Utkal
University passed a resolution dated 20.8.1986 and condoned the deficiency of
qualification of different non-government college teachers.
iv.
Government
of Orissa, Education and Youth Services Department Circular dated 27.11.1986 dealt
with the subject - Continuance of under-qualified teachers in Non-Government Colleges-Eligibility
to receive grant-in-aid from Government. The relevant part reads as under: "The
decision of Utkal University communicated to Government in their letter NO. A.13570/86
dated 20.8.86 cannot be treated as a valid order of condonation of under
qualification unless the concurrence of University Grants Commission has been
obtained. The Universities which have made order of condonation after the concerned
Regulation of the U.G.C. may refer the matter to U.G.C. and secure their
concurrence for condonation."
v.
Government
of Orissa, Education and Youth Services Department Circular dated 23.4.1987
provides that the requirement of seeking condonation by two other universities
had been withdrawn.
vi.
Resolution
dated 6.10.1989 published in the Gazette on 3.11.1989 provided for the revised
pay scale of teachers i.e. UGC pay scales w.e.f. 1.1.1986.
vii.
Resolution
dated 6.11.1990 provides for grant of UGC pay scales as the Utkal University has
condoned the deficiency of eligibility i.e. qualifications. The aforesaid
Circulars/Letters fixed the minimum 54% marks in Master's Course as eligibility
and the University has condoned the deficiency in eligibility i.e. educational qualification.
The UGC pay scale granted by the Notification dated 6.10.1989 could be made available
w.e.f. 1.1.1986.
13.
While
dealing with the aforesaid issues we have taken into consideration all submissions
made by all the counsel involved in these group matters. However, the main arguments
have been advanced by Shri Shibashish Misra, Ms. Kirti Renu Mishra and Shri Radhey
Shyam Jena, Advocates for the State and Shri A.K. Sanghi, Shri P.N. Misra,
Shri Shambhu Prasad Singh, Senior Advocates, Shri Ashok Panigrahi, Shri Kedar
Nath Tripathy, and Shri Bharat Sangal, Advocates for the respondents. EDUCATION:
14.
Education
is the systematic instruction, schooling or training given to the young persons
in preparation for the work of life. It also connotes the whole course of
scholastic instruction which a person has received. Education connotes the
process of training and developing the knowledge, skill, mind and character of students
by formal schooling. The excellence of instruction provided by an educational
institution mainly depends directly on the excellence of the teaching staff. Therefore,
unless they themselves possess a good academic record/minimum qualifications prescribed
as an eligibility, it is beyond imagination of anyone that standard of education
can be maintained/enhanced. "We have to be very strict in maintaining high
academic standards and maintaining academic discipline and academic rigour if our
country is to progress". "Democracy depends for its very life on a
high standard of general, vocational and professional education. Dissemination
of 'learning with search for new knowledge with discipline all round must be 14
maintained at all costs". (Vide: The Sole Trustee Loka Shikshana Trust v.
The Commissioner of Income Tax, Mysore, AIR 1976 SC 10; Frank Anthony Public School
Employees' Association v. Union of India & Ors., AIR 1987 SC 311; Osmania University
Teachers' Association v. State of Andhra Pradesh & Anr., AIR 1987 SC 2034;
and Director (Studies), Dr. Ambedkar Institute of Hotel Management, Nutrition &
Catering Technology, Chandigarh & Ors. v. Vaibhav Singh Chauhan, (2009) 1
SCC 59).
15.
In
Meera Massey (Dr) v. S.R. Mehrotra (Dr) & Ors., AIR 1998 SC 1153, this Court
extensively quoted the Report of the University Education Commission, i.e.,
Radhakrishnan Commission, wherein grave concern was expressed observing that "there
is negligence in applying criteria of merit in the selection" of teachers.
The Court also quoted from another Report of the Committee on some problems of
University Administration 1964(1967) as: "The most important factor in the
field of higher education is the type of person entrusted with teaching. Teaching
cannot be improved without competent teachers. ... The most critical problem facing
the universities is the dwindling supply of good teachers. ... The supply of the
right type of teachers assumes, therefore, a vital role in the educational
advancement of the country. The Court further observed as under: "University
imparts education which lays foundation of wisdom. Future hopes and aspiration of
the country depends on this education, hence proper and disciplined functioning
of the educational institutions should be the hallmark. If the laws and principles
are eroded by such institutions it not only pollutes its functioning, deteriorating
its standard but also exhibits to its own students the wrong channel adopted.
If that be so, how could such institutions produce good citizens? It is the educational
institutions which are the future hope of this country. They lay the seed for the
foundation of morality, ethics and discipline. If there is any erosion or descending
by those who control the activities all expectations and hopes are destroyed."
(emphasis added)
16.
In
Chandigarh Administration & Ors. v. Rajni Vali & Ors., AIR 2000 SC 634,
this Court observed as under: "It is a constitutional mandate that the
State shall ensure proper education to the students on whom the future of the
society depends. In line with this principle, the State has enacted statutes and
framed rules and regulations to control/regulate establishment and running of private
schools at different levels. The State Government provides grant-in-aid to private
schools with a view to ensure smooth running of the institution and to ensure that
the standard of teaching does not suffer on account of paucity of funds. It
needs no emphasis that appointment of qualified and efficient teachers is a
sine qua non for maintaining high standards of teaching in any educational institution."
(emphasis added)
17.
In
view of the above, it is evident that education is necessary to develop the personality
of a person as a whole and in totality as it provides the process of training
and acquiring the knowledge, skills, developing mind and character by formal
schooling. Therefore, it is necessary to maintain a high academic standard and academic
discipline along with academic rigour for the progress of a nation. Democracy depends
for its own survival on a high standard of vocational and professional
education. Paucity of funds cannot be a ground for the State not to provide quality
education to its future citizens. It is for this reason that in order to
maintain the standard of education the State Government provides grant-in-aid to
private schools to ensure the smooth running of the institution so that the standard
of teaching may not suffer for want of funds. Article 21A has been added by
amending our Constitution with a view to facilitate the children to get proper
and good quality education. However, the quality of education would depend on various
factors but the most relevant of them is excellence of teaching staff. In view thereof,
quality of teaching staff cannot be compromised. The selection of the most
suitable persons is essential in order to maintain excellence and the standard
of teaching in the institution. It is not permissible for the State that while
controlling the education it may impinge the standard of education. It is, in
fact, for this reason that norms of admission in institutions have to be adhered
to strictly. Admissions in mid academic sessions are not permitted to maintain
the par excellence of education. APPOINTMENT/EMPLOYMENT WITHOUT ADVERTISEMENT:
18.
At
one time this Court had been of the view that calling the names from Employment
Exchange would curb to certain extent the menace of nepotism and corruption in
public employment. But, later on, came to the conclusion that some appropriate method
consistent with the requirements of Article 16 should be followed. In other words
there must be a notice published in the appropriate manner calling for applications
and all those who apply in response thereto should be considered fairly. Even if
the names of candidates are requisitioned from Employment Exchange, in addition
thereto it is mandatory on the part of the employer to invite applications from
all 18 eligible candidates from the open market by advertising the vacancies in
newspapers having wide circulation or by announcement in Radio and Television as
merely calling the names from the Employment Exchange does not meet the requirement
of the said Article of the Constitution. (Vide: Delhi Development Horticulture Employees'
Union v. Delhi Administration, Delhi & Ors., AIR 1992 SC 789; State of Haryana
& Ors. v. Piara Singh & Ors., AIR 1992 SC 2130; Excise Superintendent
Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao & Ors., (1996)
6 SCC 216; Arun Tewari & Ors. v. Zila Mansavi Shikshak Sangh & Ors., AIR
1998 SC 331; Binod Kumar Gupta & Ors. v. Ram Ashray Mahoto & Ors., AIR 2005
SC 2103; National Fertilizers Ltd. & Ors. v. Somvir Singh, AIR 2006 SC 2319;
Telecom District Manager & Ors. v. Keshab Deb, (2008) 8 SCC 402; State of
Bihar v. Upendra Narayan Singh & Ors., (2009) 5 SCC 65; and State of Madhya
Pradesh & Anr. v. Mohd. Ibrahim, (2009) 15 SCC 214).
19.
Therefore,
it is a settled legal proposition that no person can be appointed even on a temporary
or ad hoc basis without inviting applications from all eligible candidates. If
any appointment is made by merely inviting names from the Employment Exchange
or putting a note on the Notice Board etc. that will not meet the requirement
of Articles 14 and 16 of the Constitution. Such a course violates the mandates of
Articles 14 and 16 of the Constitution of India as it deprives the candidates who
are eligible for the post, from being considered. A person employed in
violation of these provisions is not entitled to any relief including salary. For
a valid and legal appointment mandatory compliance of the said Constitutional requirement
is to be fulfilled. The equality clause enshrined in Article 16 requires that every
such appointment be made by an open advertisement as to enable all eligible
persons to compete on merit. ORDER BAD IN INCEPTION:
20.
It
is a settled legal proposition that if an order is bad in its inception, it does
not get sanctified at a later stage. A subsequent action/development cannot
validate an action which was not lawful at its inception, for the reason that
the illegality strikes at the root of the order. It would be beyond the
competence of any authority to validate such an order. It would be ironic to
permit a person to rely upon a law, in violation of which he has obtained the
benefits. If an order at the initial stage is bad in law, then all further
proceedings consequent thereto will be non est and have to be necessarily set
aside. A right in law exists only and only when it has a lawful origin. (vide: Upen
Chandra Gogoi v. State of Assam & Ors., AIR 1998 SC 1289; Mangal Prasad
Tamoli (Dead) by L.Rs. v. Narvadeshwar Mishra (Dead) by L.Rs. & Ors. , AIR
2005 SC1964; and Ritesh Tiwari & Anr. v. State of U.P. & Ors., AIR 2010
SC 3823). The concept of adverse possession of lien on post or holding over are
not applicable in service jurisprudence. Therefore, continuation of a person wrongly
appointed on post does not create any right in his favour. (Vide Dr. M.S. Patil
v. Gulbarga University & Ors., AIR 2010 SC 3783). ELIGIBILITY LACKING:
21.
In
Dr. Prit Singh v. S.K. Mangal & Ors., 1993 Supp (1) SCC 714, this Court
examined the case of a person who did not possess the requisite percentage of marks
as per the statutory requirement and held that he cannot hold the post
observing: "......It need not be pointed out that the sole object of prescribing
qualification that the candidate must have a consistently good academic record
with first or high second class Master's Degree for appointment to the post of
a Principal, is to select 21 a most suitable person in order to maintain excellence
and standard of teaching in the institution apart from administration..... The
appellant had not secured even second class marks in his Master of Arts Examination
whereas the requirement was first or high second class (55%). The
irresistible conclusion is that on the relevant date the appellant did not possess
the requisite qualifications........On the date of the appointment the appellant
did not possess the requisite qualifications and as such his appointment had
to be quashed." (emphasis added)
22.
In
Pramod Kumar v. U.P. Secondary Education Services Commission & Ors., AIR 2008
SC 1817, this Court examined the issue as to whether a person lacking
eligibility can be appointed and if so, whether such irregularity/illegality can
be cured/condoned. After considering the provisions of the U.P. Secondary
Education Services Commission Rules, 1983 and U.P. Intermediate Education Act,
1921, this Court came to a conclusion that lacking eligibility as per the rules/advertisement
cannot be cured at any stage and making appointment of such a person
tantamounts to an illegality and not an irregularity, thus cannot be cured. A person
lacking the eligibility cannot approach the court for the reason that he does
not have a right which can be enforced through court. This Court further held
as under: "If the essential educational qualification for recruitment to a
post is not satisfied, ordinarily the same cannot be condoned. Such an act
cannot be ratified. An appointment which is contrary to the statute/statutory rules
would be void in law. An illegality cannot be regularised, particularly, when the
statute in no unmistakable term says so. Only an irregularity can be.(See Secy.,
State of Karnataka v. Umadevi (3), (2006) 4 SCC 1;, National Fertilizers Ltd.
v. Somvir Singh, (2006) 5 SCC 493; and Post Master General, Kolkata v. Tutu Das
(Dutta), (2007) 5 SCC 317)".RELAXATION:
23.
In
Dr. J.P. Kulshrestha & Ors. v. Chancellor, Allahabad University & Ors.,
AIR 1980 SC 2141, issue of relaxation of eligibility came for consideration before
this Court wherein it was held as under: "..........We regretfully but respectfully
disagree with the Division Bench and uphold the sense of high second class
attributed by the learned single Judge. The midline takes us to 54% and
although it is unpalatable to be mechanical and mathematical, we have to hold
that those who have not secured above 54% marks cannot claim to have obtained a
high second class and are ineligible.......We have earlier held that the power to
relax, as the Ordinance now runs, in so far as high second class is concerned, does
not exist. Inevitably, the appointments of the 3 respondents violate the
Ordinance and are, therefore, illegal." (emphasis added)
24.
In
Rekha Chaturvedi v. University of Rajasthan & Ors., 1993 Supp (3) SCC 168, this
Court again dealt with the power of relaxation of minimum qualifications as the
statutory provisions applicable therein provided for relaxation, but to what extent
and under what circumstances, such power could be exercised was not provided
therein. Thus, this Court issued the following directions:
A. " The University
must note that the qualifications it advertises for the posts should not be at
variance with those prescribed by its Ordinance/Statutes.
B. The candidates
selected must be qualified as on the last date for making applications for the
posts in question or on the date to be specifically mentioned in the
advertisement/notification for the purpose.
C. When the University or
its Selection Committee relaxes the minimum required qualifications, unless
it is specifically stated in the advertisement/notification both that the qualifications
will be relaxed and also the conditions on which they will be relaxed, the relaxation
will be illegal.
D. The University/Selection
Committee must mention in its proceedings of selection the reasons for making
relaxations, if any, in respect of each of the candidates in whose favour relaxation
is made.
E. The minutes of the
meetings of the Selection Committee should be preserved for a sufficiently long
time, and if the selection process is challenged until the challenge is finally
disposed of. An adverse inference is liable to be drawn if the minutes are
destroyed or a plea is taken that they are not available." (emphasis
added)
25.
In
P.K. Ramachandra Iyer & Ors. v. Union of India & Ors., AIR 1984 SC 541,
this Court while dealing with the same issue, held that once it is established
that there is no power to relax the essential qualifications, the entire
process of selection of the candidate was in contravention of the established norms
prescribed by advertisement. The power to relax must be clearly spelt out and
cannot otherwise be exercised.
26.
In
Secretary, A.P. Public Service Commission v. B. Swapna & Ors., (2005) 4 SCC
154, this Court held that: "Another aspect which this Court has
highlighted is scope for relaxation of norms..... Once it is most satisfactorily
established that the Selection Committee did not have the power to relax essential
qualification, the entire process of selection so far as the selected candidate
is concerned gets vitiated."
27.
This
Court in Kendriya Vidyalaya Sangathan & Ors. v. Sajal Kumar Roy & Ors.,
(2006) 8 SCC 671, held: "The appointing authorities are required to apply
their mind while exercising their discretionary jurisdiction to relax the age- limits....The
requirements to comply with the rules, it is trite, were required to be
complied with fairly and reasonably. They were bound by the rules. The discretionary
jurisdiction could be exercised for relaxation of age provided for in the rules
and within the four corners thereof." (emphasis added)
28.
In
Food Corporation of India & Ors. v. Bhanu Lodh & Ors., AIR 2005 SC
2775, this Court held: "Even assuming that there is a power of relaxation
under the Regulations....... the power of relaxation cannot be exercised in such
a manner that it completely distorts the Regulations. The power of relaxation
is intended to be used in marginal cases.... We do not think that they are intended
as an "open sesame" for all and sundry. The wholesale go-by given to
the Regulations, and the manner in which the recruitment process was being
done, was very much reviewable as a policy directive, in exercise of the power
of the Central Government under Section 6(2) of the Act."
29.
In
Dr. Bhanu Prasad Panda v. Chancellor, Sambalpur University & Ors., (2001) 8
SCC 532, one of the questions raised has been as to whether a person not
possessing the required eligibility of qualification i.e. 55% marks in Master's
degree can be appointed in view of the fact that the UGC refused to grant
relaxation. On the issue of relaxation of eligibility, the Court held as under:
"....the essential requirement of academic qualification of a particular standard
and grade viz. 55%, in the "relevant subject" for which the post is advertised,
cannot be rendered redundant or violated...... The rejection by UGC of the request
of the Department in this case to relax the condition relating to 55% marks at post-
graduation level.... is to be the last word on the claim of the appellant and there
could be no further controversy raised in this regard...." (emphasis
added) In view of the above, this Court held that the appointment of the appellant
therein has rightly been quashed as he did not possess the requisite
eligibility of 55% marks in Master's course.
30.
In
absence of an enabling provision for grant of relaxation, no relaxation can be
made. Even if such a power is provided under the Statute, it cannot be exercised
arbitrarily. (See: Union of India v. Dharam Pal & Ors., (2009) 4 SCC 170).
31.
Such
a power cannot be exercised treating it to be an implied, incidental or necessary
power for execution of the statutory provisions. Even an implied power is to be
exercised with care and caution with reasonable means to remove the obstructions
or overcome the resistance in enforcing the statutory provisions or executing its
command. Incidental and ancillary powers cannot be used in utter disregard of
the object of the Statute. Such power can be exercised only to make such
legislation effective so that the ultimate power will not become illusory,
which otherwise would be contrary to 27 the intent of the legislature. (vide: Matajog
Dobey v. H.S. Bhari, AIR 1956 SC 44; and State of Karnataka v. Vishwabharathi House
Building Co-operative Society & Ors., (2003) 2 SCC 412). More so, relaxation
in this manner is tantamount to changing the selection criteria after
initiation of selection process, which is not permissible at all. Rules of the
game cannot be changed after the game is over. (Vide K. Manjusree v. State of
Andhra Pradesh & Anr., AIR 2008 SC 1470; and Ramesh Kumar v. High Court of
Delhi & Anr., AIR 2010 SC 3714). DELAY/LACHES:
32.
In
the very first appeal, the respondent filed Writ Petition on 11.11.2005 claiming
relief under the Notification dated 6.10.1989 w.e.f. 1.1.1986 without
furnishing any explanation for such inordinate delay and on laches on her part.
Section 3 of the Limitation Act 1963, makes it obligatory on the part of the court
to dismiss the Suit or appeal if made after the prescribed period even though
the limitation is not set up as a defence and there is no plea to raise the issue
of limitation even at appellate stage because in some of the cases it may go to
the root of the matter. (See: Lachhmi Sewak Sahu v. Ram Rup 28 Sahu &
Ors., AIR 1944 Privy Council 24; and Kamlesh Babu & Ors. v. Lajpat Rai
Sharma & Ors, (2008) 12 SCC 577).
33.
Needless
to say that Limitation Act 1963 does not apply in writ jurisdiction. However,
the doctrine of limitation being based on public policy, the principles enshrined
therein are applicable and writ petitions are dismissed at initial stage on the
ground of delay and laches. In a case like at hand, getting a particular pay
scale may give rise to a recurring cause of action. In such an eventuality, the
petition may be dismissed on the ground of delay and laches and the court may refuse
to grant relief for the initial period in case of an unexplained and inordinate
delay. In the instant case, the respondent claimed the relief from 1.1.1986 by
filing a petition on 11.11.2005 but the High Court for some unexplained reason
granted the relief w.e.f. 1.6.1984, though even the Notification dated 6.10.1989
makes it applicable w.e.f. 1.1.1986.
34.
This
Court has consistently rejected the contention that a petition should be
considered ignoring the delay and laches in case the petitioner approaches the Court
after coming to know of the relief granted by the Court in a similar case as the
same cannot furnish a 29 proper explanation for delay and laches. A litigant cannot
wake up from deep slumber and claim impetus from the judgment in cases where some
diligent person had approached the Court within a reasonable time. (See: M/s Rup
Diamonds & Ors., v. Union of India & Ors., AIR 1989 SC 674; State of Karnataka
& Ors. v. S.M. Kotrayya & Ors., (1996) 6 SCC 267; and Jagdish Lal &
Ors. v. State of Haryana & Ors., AIR 1997 SC 2366).RELIEF NOT CLAIMED -
CANNOT BE GRANTED:
35.
Pleadings
and particulars are required to enable the court to decide the rights of the parties
in the trial. Thus, the pleadings are more to help the court in narrowing the
controversy involved and to inform the parties concerned to the question in issue,
so that the parties may adduce appropriate evidence on the said issue. It is a settled
legal proposition that "as a rule relief not founded on the pleadings should
not be granted." Therefore, a decision of a case cannot be based on grounds
outside the pleadings of the parties. The pleadings and issues are to ascertain
the real dispute between the parties to narrow the area of conflict and to see just
where the two sides differ. (Vide : Sri Mahant Govind Rao v. Sita Ram Kesho, 30
(1898) 25 Ind. App. 195; M/s. Trojan & Co. v. RM. N.N. Nagappa Chettiar, AIR
1953 SC 235; Ishwar Dutt v. Land Acquisition Collector & Anr., AIR 2005 SC
3165; and State of Maharashtra v. Hindustan Construction Company Ltd., (2010) 4
SCC 518.) ARTICLE 14:
36.
It
is a settled legal proposition that Article 14 is not meant to perpetuate
illegality and it does not envisage negative equality. Thus, even if some other
similarly situated persons have been granted some benefit inadvertently or by
mistake, such order does not confer any legal right on the petitioner to get the
same relief. (Vide Chandigarh Administration & Anr v. Jagjit Singh & Anr.,
AIR 1995 SC 705; Yogesh Kumar & Ors. v. Government of NCT Delhi & Ors.,
AIR 2003 SC 1241; M/s Anand Buttons Ltd. etc. v. State of Haryana & Ors., AIR
2005 SC 565; K.K. Bhalla v. State of M.P. & Ors., AIR 2006 SC 898; Maharaj
Krishan Bhatt & Anr. v. State of Jammu & Kashmir & Ors., (2008) 9
SCC 24; Upendra Narayan Singh (supra); and Union of India & Anr. v. Kartick
Chandra Mondal & Anr., AIR 2010 SC 3455). This principle also applies to
judicial pronouncements. Once the court comes to the conclusion that a wrong order
has been passed, it 31 becomes the solemn duty of the court to rectify the
mistake rather than perpetuate the same. While dealing with a similar issue,
this Court in Hotel Balaji & Ors. v. State of A.P. & Ors., AIR 1993 SC
1048 observed as under: "...To perpetuate an error is no heroism. To rectify
it is the compulsion of judicial conscience. In this, we derive comfort and strength
from the wise and inspiring words of Justice Bronson in Pierce v. Delameter
(A.M.Y. at page 18: `a Judge ought to be wise enough to know that he is
fallible and, therefore, ever ready to learn: great and honest enough to
discard all mere pride of opinion and follow truth wherever it may lead: and courageous
enough to acknowledge his errors'". (See also re: Sanjiv Datta, Dy. Secy.,
Ministry of Information & Broadcasting, (1995) 3 SCC 619; Nirmal Jeet Kaur v.
State of M.P. & Anr., (2004) 7 SCC 558; and Mayuram Subramanian Srinivasan
v. CBI, AIR 2006 SC 2449).
37.
We
are fully alive of the object and purpose of according recognition and affiliation
to educational institutions. It is the educational authorities of the State which
grant recognition to a Committee of Management for opening or running an educational
institution. Affiliation is granted by the particular University or Board for undertaking
the examination of the students of that college for 32 awarding degrees and certificates.
Therefore, while granting the recognition and affiliation even for
non-governmental and non-aided private colleges, it is mandatory to adhere to
the conditions imposed by them, which also include the minimum eligibility for
appointment of teaching staff. The authority at the time of granting approval
has to apply its mind to find out whether a person possessing the minimum eligibility
has been appointed. In the instant case, it appears to be a clear cut case of
arbitrariness which cannot be approved. ARBITRARINESS:
38.
The
rule of law inhibits arbitrary action and also makes it liable to be invalidated.
Every action of the State or its instrumentalities should not only be fair, legitimate
and above-board but should be without any affection or aversion. It should
neither be suggestive of discrimination nor even give an impression of bias, favouritism
and nepotism. Procedural fairness is an implied mandatory requirement to protect
against arbitrary action where Statute confers wide power coupled with wide discretion
on an authority. If the procedure adopted by an authority offends the fundamental
fairness or established ethos or shocks the conscience, the order stands
vitiated. The decision making process remains bad. (Vide Haji T.M. Hassan Rawther
v. Kerala Financial Corporation, AIR 1988 SC 157; Dr. Rash Lal Yadav v. State
of Bihar & Ors., (1994) 5 SCC 267; and Tata Cellular v. Union of India,
(1994) 6 SCC 651).
39.
In
the State of Andhra Pradesh & Anr. v. Nalla Raja Reddy & Ors., AIR 1967
SC 1458, a Constitution Bench of this Court observed as under: "Official arbitrariness
is more subversive of doctrine of equality than the statutory discrimination.
In spite of statutory discrimination, one knows where he stands but the wand of
official arbitrariness can be waived in all directions indiscriminately."
40.
Similarly,
in S.G. Jaisinghani v. Union of India & Ors., AIR 1967 SC 1427, a
Constitution Bench of this Court observed as under: "....absence of
arbitrary power is the first essence of the rule of law, upon which our whole Constitutional
system is based..... Rule of law, from this point of view, means that the decision
should be made by the application of known principle and rules and in general such
decision should be predictable and the citizen should know where he is, if a decision
is taken without any principle or without any rule, it is unpredictable and such
a decision is antithesis to the decision taken in accordance with the rule of
law." (See also: Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR
1952 SC 16).
41.
It
is a matter of common experience that a large number of orders/letters/circulars,
issued by the State/statutory authorities, are filed in court for placing
reliance and acting upon it. However, some of them are definitely found to be
not in conformity with law. There may be certain such orders/circulars which are
violative of the mandatory provisions of the Constitution of India. While
dealing with such a situation, this Court in Ram Ganesh Tripathi & Ors. v.
State of U.P. & Ors., AIR 1997 SC 1446 came across with an illegal order passed
by the statutory authority violating the provisions of Articles 14 and 16 of
the Constitution. This Court simply brushed aside the same without placing any
reliance on it observing as under: "The said order was not challenged in the
writ petition as it had not come to the notice of the appellants. It has been filed
in this Court along with the counter affidavit..... This order is also deserved
to be quashed as it is not consistent with the statutory rules. It appears to have
been passed by the Government to oblige the respondents......" (emphasis
added) 35
42.
The
whole exercise done by the State authorities suffers from the vice of arbitrariness
and thus is violative of Article 14 of the Constitution. Therefore, it cannot
be given effect to. PER IN CURIAM - Doctrine:
43.
"Incuria"
literally means "carelessness". In practice per incuriam is taken to mean
per ignoratium. The Courts have developed` this principle in relaxation of the
rule of stare decisis. Thus the "quotable in law", is avoided and ignored
if it is rendered, in ignoratium of a Statute or other binding authority. In
Mamleshwar Prasad & Anr. v. Kanahaiya Lal (Dead) by Lrs., AIR 1975 SC 907,
this Court held : "......where by obvious inadvertence or oversight a judgment
fails to notice a plain statutory provision or obligatory authority running
counter to the reasoning and result reached, it may not have the sway of
binding precedents. It should be a glaring case, an obtrusive omission." (emphasis
added)
44.
In
State of Orissa & Anr. v. Damodar Nayak & Anr., AIR 1997 SC 2071,
question arose that in case the teacher at the time of appointment, did not possess
the requisite eligibility, i.e., qualifications, whether he could claim any
benefit under the grant-in-aid Scheme. Respondent-teacher therein had secured 53.9
% marks and required eligibility provided for 54%. This Court held that undoubtedly
53.9% marks were very close to required marks i.e. 54%, but the teacher so appointed
did not possess the eligibility. The court took notice of the fact that he was appointed
in 1978 but acquired further qualification on 10.7.1987, and held: "Admittedly,
since the first respondent on the date of his appointment was not possessing the
requisite qualification and acquired the same only on 10.7.1987 he will be eligible
to the benefit of the grant-in-aid w.e.f. 1.8.1987 and onwards"
45.
This
Court while hearing the SLP (C) Nos. 14206-14209 of 2001, State of Orissa &
Anr. v. Kalidas Mohapatra & Ors., on 11.3.2002 observed as under: "Heard.
The so-called contention of deficiency in the qualification being much earlier
in the circular of the Government dated 06.11.1990, we see no infirmity with the
impugned judgment requiring our interference. The Special Leave Petitions are dismissed
accordingly." This Court further dismissed the Review Petition Nos. 1529- 1532
of 2002 against the said judgment and order on 28.8.2002.
46.
From
the aforesaid discussion, the following picture emerges:
i.
The
procedure prescribed under the Rules, 1974 has not been followed in all the cases
while making the appointment of the respondents/teachers at initial stage. Some
of the persons had admittedly been appointed merely by putting some note on the
Notice Board of the College. Some of these teachers did not face the interview test
before the Selection Board. Once an order of appointment itself had been bad at
the time of initial appointment, it cannot be sanctified at a later stage.
ii.
At
the relevant time of appointment of the respondents/teachers there has been a
requirement of possessing good second class i.e. 54% marks in Master's Course
and none of the said respondents had secured the said percentage.
iii.
Their
appointments had been approved after a long long time. In some cases after 10-12
years of their initial appointment by the statutory authority i.e. Director of
Higher Education.
iv.
A
candidate becomes eligible to apply for a post only if he fulfils the required minimum
benchmark fixed by the rules/advertisement. Thus, none of the respondents could
even submit the application what to talk of the appointments.
v.
The
so-called relaxation by the Utkal University was accorded by passing a routine
order applicable to large number of colleges, that too after a lapse of long
period i.e. about a decade.
vi.
Fixation
of eligibility falls within the exclusive domain of the executive and once it
has been fixed by the State authorities under the Rules 1974, the question of
according relaxation by Utkal University could not arise and, therefore, the
order of condonation etc. is nullity.
vii.
The
relaxation has been granted only by Utkal University though Rule 2(i) of Rules 1974
defined `University' means Utkal University, Berhampur University, Sambalpur University
and Sri Jagannath Sanskrit Vishwa Vidyalaya.
viii.
Granting
relaxation at this stage amounts to change of criteria after issuance of
advertisement, which is impermissible in law. More so, it is violative of fundamental
rights enshrined under Articles 14 and 16 of the Constitution of the similarly
situated persons, who did not apply considering themselves to be ineligible for
want of required marks.
ix.
The
exercise of condonation of deficiency had not been exercised by any University
other than Utkal University. 39 (x) The post of the teachers i.e. respondents
is transferable to any college affiliated to any other University under the Rules
1979.
x.
The
power to grant relaxation in eligibility had not been conferred upon any authority,
either the University or the State. In absence thereof, such power could not
have been exercised.
xi.
This
Court in Damodar Nayak (supra) has categorically held that a person cannot get the
benefit of grant-in-aid unless he completes the deficiency of educational qualification.
Further, this Court in Dr. Bhanu Prasad Panda (supra) upheld the termination of
services of the appellant therein for not possessing 55% marks in Master
Course.
xii.
The
aforesaid two judgments in Damodar Nayak (supra) and Dr. Bhanu Prasad Panda
(supra), could not be brought to the notice of either the High Court or this
Court while dealing with the issue. Special leave petition in the case of Kalidas
Mohapatra & Ors. (supra) has been dealt with without considering the requirement
of law merely making the reference to Circular dated 6.11.1990, which was not
the first document ever issued in respect of eligibility. Thus, all the
judgments and orders passed by the High Court as well as by 40 this Court cited
and relied upon by the respondents are held to be not of a binding nature. (Per
in curiam)
xiii.
In
case a person cannot get the benefit of grant-in-aid scheme unless he completes
the deficiency of educational qualification, question of grant of UGC pay scale
does not arise.
xiv.
The
cases had been entertained and relief had been granted by the High Court without
considering the issue of delay and laches merely placing reliance upon earlier judgments
obtained by diligent persons approaching the courts within a reasonable time.
xv.
The
authority passed illegal orders in contravention of the constitutional provisions
arbitrarily without any explanation whatsoever polluting the entire education
system of the State, ignoring the purpose of grant-in-aid scheme itself that it
has been so provided to maintain the standard of education.
xvi.
The
High Court granted relief in some cases which had not even been asked for as in
some cases the UGC pay scale had been granted with effect from 1.6.1984, i.e., the
date prior to 1.1.1986 though the same relief could not have been granted.
Thus, it clearly makes out a case of deciding a case without any application of
mind. 41
xvii.
In
some cases the UGC pay scale has been granted by the High Court prior to the
date of according the benefit of grant-in-aid scheme to the concerned teachers
which was not permissible in law in view of the law laid down by this Court in
Damodar Nayak (supra).
xviii.
The
grievance of the respondents that not upholding the orders passed by the High
Court in their favour would amount to a hostile discrimination is not worth
acceptance for the reason that Article 14 of the Constitution envisages only
positive equality.
xix.
Concept
of adverse possession of lien on post or holding over are inapplicable in
service jurisprudence.
xx.
The
submission on behalf of the respondents that Government orders/circulars/letters
have been complied with, therefore, no interference is called for, is
preposterous for the simple reason that such orders/circulars/letters being violative
of statutory provisions and constitutional mandate are just to be ignored in terms
of the judgment of this Court in Ram Ganesh Tripathi (supra).
47.
In
view of the above, it stands crystal clear that a teacher who had been appointed
without possessing the requisite qualification at initial stage cannot get the benefit
of grant-in-aid scheme unless he acquires the additional qualification and,
therefore, question of grant 42 of UGC pay scale would not arise in any
circumstance unless such teacher acquires the additional qualification making him
eligible for the benefit of grant-in-aid scheme. The cumulative effect therefore
comes to that such teacher will not be entitled to claim the UGC pay scale
unless he acquires the higher qualification i.e. M.Phil/Ph.D.
48.
In
the facts and circumstances of the case, we feel that terminating the services of
those who had been appointed illegally and/or withdrawing the benefits of
grant-in-aid scheme of those who had not completed the deficiency in eligibility/educational
qualification or withdrawing the benefit thereof from those who had been granted
from the date prior to completing the deficiency, may not be desirable as a
long period has elapsed. So far as the grant of UGC pay scale is concerned, it
cannot be granted prior to the date of acquisition of higher qualification. In
view of the above, the impugned judgment/order cannot be sustained in the eyes
of law. 49. The full particulars of the respondent-teachers are not before us as
in some cases there had been claim and counter claim of possessing the requisite
marks i.e. 54% in Master's Course, as in Civil Appeal No. 1253 of 2011, State
of Orissa & Anr. v. Lokanath Mishra & Ors. Thus, we pass the following
directions:
i.
In
case of dispute regarding possessing of 54% marks, the authorities, Secretary of
Higher Education/Director of Higher Education may examine the factual position and
decide the case of individual teachers in accordance with law laid down in this
case;
ii.
If
a person did not possess the requisite qualification on the date of appointment
and was not entitled for grant-in-aid scheme unless he completes the
deficiency, his case would be considered from the date of completing the
deficiency for grant of UGC pay scale. However, in no case, the UGC pay scale can
be granted prior to the date of according the benefit of the grant-in-aid
scheme, i.e. by acquiring the degree of M.Phil/Ph.D;
iii.
The
aforesaid exercise shall be completed within a period of four months from
today; and
iv.
The
arrears of pay, if any, shall be paid to the teacher concerned within a period
of four months thereafter. 50. In view of the above, all appeals stand disposed
of. No order as to costs.
.................................J.
(P. SATHASIVAM)
..................................J.
(Dr. B.S. CHAUHAN)
New
Delhi,
February
9, 2011
FEBRUARY
10, 2011
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