STATE OF ORISSA Vs MAMATA MOHANTY
Bench: P. SATHASIVAM,B.S. CHAUHAN, , ,
Case number: C.A. No.-001272-001272 / 2011
Diary number: 15390 / 2006
Advocates: RADHA SHYAM JENA Vs
SATYA MITRA GARG
REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1272 OF 2011
State of Orissa & Anr. …… Appellants
Versus
Mamata Mohanty …… Respondent
WITH
Civil Appeal Nos. 1246-1271 of 2011 Civil Appeal Nos. 1273-1274 of 2011 Civil Appeal Nos. 1277-1281 of 2011 Civil Appeal Nos. 1283 of 2011 Civil Appeal Nos. 1285-1287 of 2011 Civil Appeal Nos. 1289-1293 of 2011 Civil Appeal Nos. 1295-1300 of 2011 Civil Appeal Nos. 1302-1313 of 2011 Civil Appeal Nos. 1315-1321 of 2011
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.
FACTS:
3. (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
4
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.
6
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.
11. 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.
12.(A) STATUTORY PROVISIONS - RELEVANT PARTS:
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.
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
1
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.
1
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.
(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.”
1
(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,
1
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
1
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
1
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
1
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,
1
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 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
1
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
1
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
2
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
2
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:
2
“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)
2
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)
2
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
2
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
2
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
2
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
2
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
2
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,
3
(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
3
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
3
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.
3
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.”
3
(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)
3
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-
3
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.
3
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.
3
(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.
3
(x) The post of the teachers i.e. respondents is transferable to any
college affiliated to any other University under the Rules 1979.
(xi) 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.
(xii) 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.
(xiii) 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
4
this Court cited and relied upon by the respondents are held to be not
of a binding nature. (Per in curiam)
(xiv) 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.
(xv) 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.
(xvi) 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.
(xvii) 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.
4
(xviii) 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).
(xix) 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.
(xx) Concept of adverse possession of lien on post or holding over
are inapplicable in service jurisprudence.
(xxi) 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
4
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:
4
(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)
New Delhi, ……………………………J.
4
February 9, 2011 (Dr. B.S. CHAUHAN)
4