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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.7983-7986 OF 2009

State of Punjab and others ..Appellants versus

Anita and others ..Respondents WITH

CIVIL APPEAL NOS.7970-7971 OF 2009

J U D G M E N T

J.S.KHEHAR, J.

The  Management  of  the  Doaba  Arya  Senior  Secondary  School,  Nawanshahr,  issued  an  advertisement  in  the  Indian  Express dated 25.05.2002, inviting applications for six vacant  posts  of  JBT/ETT  teachers.   Since  the  controversy,  being  adjudicated upon, is substantially to be determined on the basis  of the contents of the advertisement, the above advertisement  dated 25.05.2002 is being extracted hereunder:

“Doaba Arya Senior Secondary School, Nawanshahr Wanted following dedicated, talented, trained and  experienced  teachers  against  six  vacant  JBT/ETT  aided posts preferably one M.A. English, one M.Sc.  Chem., One M.Sc. Bio, M.Com., one M.Sc. Maths, one  M.A. Eco and one Watchman. Apply Principal afresh  within ten days alongwith testimonials. Reservation  exists as per Govt. rules.  

   Sd/-             Principal, Doaba Arya Sr. Sec. School,  

Nawanshahr.

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The private respondents were selected against the six  advertised posts, by the Managing Committee of the above school.  Despite their selection and consequential appointment, the State  Government did not accord its approval. It is in the aforesaid  circumstances, that the private respondents, i.e., the selected  JBT/ETT teachers  issue a notice dated 1.2.2004, wherein they  sought approval of the State Government, as also, wages for the  period they had been discharging their duties.  Since, they did  not receive any response to the legal notice dated 1.2.2004, the  private  respondents  approached  the  High  Court  of  Punjab  and  Haryana  at  Chandigarh  (hereinafter  referred  to  as  the  'High  Court') by filing Civil Writ Petition No.6789 of 2004.  Rather  than examining the merits of the controversy, the High Court by  its  order  dated  27.04.2004,  required  the  State  Government  to  take  a  decision  on  the  legal  notice,  issued  by  the  private  respondents.   It  is  therefore,  that  the  District  Education  Officer,  Nawanshahr  (hereinafter  referred  to  as  the  'DEO')  passed  an  order  dated  04.4.2005,  declining  the  claim  of  the  private respondents.  A perusal of the speaking order passed by  the DEO, inter alia, reveals, that the private respondents had  been appointed in violation of the statutory rules regulating  appointments to privately managed recognised schools.  It was  also indicated in the order dated 04.4.2005, that the selection  process was not  in consonance with  the statutory rules.

The  order  passed  by  the  DEO  dated  04.4.2005  was

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assailed by the private respondents  before the High Court by  filing Civil Writ Petition No. 15599 of 2006.  The same came to  be allowed by the impugned order dated 2.7.2007.  A perusal of  the  impugned  order  reveals,  that  the  High  Court  emphatically  placed reliance on an earlier litigation in respect of the same  selection process, wherein a Division Bench of the High Court,  while disposing of civil writ petition No. 13979 of 2002 (by  order  dated  16.2.2004),  had  found  the  petitioner  therein  not  possessing  superior  qualifications  to  the  private  respondent  no.4, whose selection was sought to be assailed.  The High Court  had also, while disposing of civil writ petition no.13979 of  2002,  rejected  the  contention  advanced  at  the  hands  of  the  petitioner therein, that the process of selection was vitiated  on account of bias.

Since the order passed in civil writ petition no. 13979  of 2002 was affirmed by this Court, the special leave petition  filed against the said order before this Court was dismissed.  The  High  Court  inferred  from  the  above  dismissal,  that  the  selection process had been approved by this Court.

We will first endeavour to deal with the basis adopted  by the High Court in affirming the selection process of  the  private  respondents,  consequent  whereof  they  came  to  be  appointed as JBT/ETT teachers.  It would be relevant to mention,  that the qualifications prescribed for the advertised JBT/ETT  posts were not at all the subject matter of consideration in  writ petition no. 13979 of 2002, nor was the selection process a

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matter for consideration.  In the above view, it was not proper  for the High Court to approve the selection process, by which  the  six  private  respondents  came  to  be  appointed  as  JBT/ETT  teachers.  Moreover, the issues which are now raised were not  examined  by  the  High  Court,  or  by  this  Court,  during  the  previous litigation.  We are, therefore, of the considered view,  that the High Court should have addressed the pointed questions  raised  before  it,  while  examining  the  legality  of  the  order  passed  by  the  DEO  dated  04.4.2005.   Unfortunately,  the  High  Court did not deal with any of the reasons recorded by the DEO  (while rejecting the claim raised by the private respondents).

We shall now deal with the pointed issues recorded by  the DEO in his order dated 04.4.2005.  It is not a matter of  dispute,  that  insofar  as  the  selection  and  appointments  to  privately managed recognised schools in the State of Punjab is  concerned,  the  same  are  regulated  by  the  Punjab  Privately  Managed  Recognised  Schools  Employees  (Security  of  Service)  Rules, 1981 (hereinafter referred to as the '1981 Rules').  Rule  6  of  the  aforesaid  Rules  lays  down  the  qualifications  for  different posts, and Rule 7 the manner/method of appointment.  Rules 6 and 7 of the 1981 Rules are reproduced hereunder:

“6.  Qualification  –  (1)  No  person  shall  be  appointed to an aided post, unless he possess the  qualifications and experience as specified against  that post in the Appendix to these rules.  (2) Unless otherwise specified in the Appendix to  these rules, an employee who has not attained the  knowledge  of  Hindi  and  Punjabi  language  of  matriculation  standard  or  its  equivalent,  shall

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have to acquire the same within a period of two  years  from  the  date  of  his  appointment  of  the  commencement of these rules, whichever is earlier,  failing which he shall not earn his first grade  increments till he acquires such knowledge when the  increments shall be released retrospectively :  Provided  that  he  shall  not  be  entitled  to  get  arrears of the released grade increments for the  period  during  which  he  could  not  acquire  the  aforesaid knowledge.  7. Appointing authority and method of appointment –  All appointments to the aided posts shall be made  by the managing committee in the following manner:  (i) Appointing authority shall advertise in both  English  and  vernacular  daily  newspapers  in  the  State,  vacancy  or  vacancies  to  be  filled  in  by  giving  full  particulars  thereof  including  the  requisite qualifications, number of vacancies to be  filled  in  and  the  last  date  by  which  the  applications may be submitted;  (ii)  The  recommendations  for  appointment  of  the  candidates  shall  be  made  by  a  sub-committee  consisting five members of the managing committee.  (2)  The  members  of  the  sub-committee  shall  be  appointed by the managing committee.”      

A perusal of Rule 6 reveals, that qualifications for posts under  the  purview  of  the  1981  Rules  have  been  expressed  in  the  appendix to the 1981 Rules. Insofar as the post of JBT teacher  is concerned, the same figures at serial no.10 of the appendix,  wherein the prescribed qualifications are as under:

APPENDIX  (See Rule 6)

Serial  No.

Designation of Post Qualifications and experiences

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10. J.B.T. Teacher (i) Martic with two years course  in J.B.T. Training; and  (ii)  Knowledge  of  Punjabi  and  Hindi Language of Matriculation  Standard or its equivalent.  

Under  the  1981  Rules,  for  the  post  of  JBT  teachers,  the  prescribed qualification is, matriculation with two years course  in JBT training.  In addition thereto, a candidate should have  knowledge  of  Punjabi  and  Hindi  language  of  matriculation  standard, or its equivalent.   

The issue which requires our consideration is, whether  the  advertisement  issued  by  the  Doaba  Arya  Senior  Secondary  School, Nawanshahr, had invited applications by truly reflecting  the  prescribed  qualifications,  and  also  whether,  the  private  respondents possess the qualification prescribed for the post of  JBT/ETT teachers, which was advertised on 25.2.2002.   

While  examining  the  advertisement,  which  has  been  extracted hereinabove, we are satisfied that applications were  not  invited  from  candidates  possessing  the  qualification  depicted in the appendix to the 1981 Rules, pertaining to the  posts of JBT/ETT teachers.  It is also apparent, that none of  the private respondents possess the qualification of JBT/ETT,  and as such, none of them can be stated to be possessed of  qualifications  statutorily  prescribed  and  delineated  in  the  appendix of the 1981 Rules.  None of the private respondents was

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therefore  per  se  eligible  for  appointment  to  the  posts  of  JBT/ETT teachers.  This was one of the pointed reasons why the  State Government did not grant its approval to the selection and  appointment of the private respondents. In our considered view,  no infirmity can be found in the aforesaid determination at the  hands of the State Government.

Insofar as the issue in hand is concerned, reference  may be made to the decision rendered by this Court in P.M. Latha  and another vs. State of Kerala and others (2003) 3 SCC 541,  wherein this Court held as under:

We  find  absolutely  no  force  in  the  argument  advances by the respondents that BEd qualification  is a higher qualification than TTC and therefore  the BEd candidates should be held to be eligible to  compete for the post. On behalf of the appellants,  it is pointed out before us that Trained Teacher's  Certificate is given to teachers specially trained  to teach small children in primary classes whereas  for BEd degree, the training imparted is to teach  students of classes above  primary.  BEd degree- holders, therefore, cannot necessarily be held to  be holding qualification suitable for appointment  as  teachers  in  primary  schools.  Whether  for  a  particular  post, the source of recruitment should  be from the candidates with TTC qualification or  BEd  qualification,  is  a  matter  of  recruitment  policy. We find sufficient logic and justification  in the State prescribing qualification for the post  of  primary  teachers  as  only  TTC  and  not  BEd.  Whether BEd qualification can also be prescribed  for primary teachers is a question to be considered  by the authorities concerned but we cannot consider  BEd  candidates,  for  the  present  vacancies  advertised, as eligible.”

(emphasis is ours)

Reference may also be made to the decision rendered by this  Court in Yogesh Kumar and others vs. Government of NCT of Delhi

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and others (2003) 3 SCC 548, wherein this Court held as under: “The Division Bench of the Delhi High Court in the  impugned  judgment  has  dealt  with  the  above  two  arguments  in  great  detail.  In  our  considered  opinion, it has rightly come to the conclusion that  BEd  qualification,  although  a  well-recognised  qualification  in  the  field  of  teaching  and  education  being  not  prescribed  in  the  advertisement, only some of the BEd candidates who  took a chance to apply for the post cannot be given  entry in the field of selection. We also find that  the High Court rightly came to the conclusion that  teacher  training  imparted  to  teachers  for  BEd  course equips them for teaching higher classes. A  specialized training given to teachers for teaching  small children at primary level cannot be compared  with training given for awarding BEd degree. Merely  because primary teachers can also earn promotion to  the post of teachers to teach higher classes and  for which BEd is the prescribed qualification, it  cannot be held that BEd is a higher qualification  than TTC.  Looking to the different nature of TTC  qualification, the High Court rightly held that it  is not comparable with BEd degree qualification and  the  latter  cannot  be  treated  as  higher  qualification to the former.”

(emphasis is ours)

A  perusal  of  the  aforesaid  judgments  leave  no  room  for  any  doubt,  that  it  is  imperative  for  candidates  to  possess  the  statutory qualification prescribed for appointment to the posts,  to which they are seeking appointment.   In view of the position  declared  by  this  Court,  qualifications  of  B.Ed  and  other  qualifications  possessed  by  the  private  respondents,  namely,  M.A.,  M.Sc,  M.Com.  Etc.  cannot  be  treated  as  higher  qualifications  with  reference  to  the  prescribed  qualifications(JBT/ETT). We,  therefore,  find  the  reasons  recorded by the DEO in the impugned order dated 04.4.2005 were  fully  justified,  and  in  consonance  with  the  legal  position

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declared by this Court, as has been noticed hereinabove. To  be  fair  to  the  learned  counsel  for  the  private  

respondents,  we  may  also  make  a  reference  to  the  decision  rendered  by  this  Court  in  Jyoti  K.K.  and  others  vs.  Kerala  Public Service Commission and others (2010) 15 SCC 596.  Learned  counsel  had  invited  our  attention  to  paragraph  7  thereof,  wherein it was observed as under:

“It is no doubt true, as stated by the High Court  that when a qualification has been set out under  the  relevant  Rules,  the  same  cannot  be  in  any  manner whittled down and a different qualification  cannot be adopted. The High Court is also justified  in  stating  that  the  higher  qualification  must  clearly indicate or presuppose the acquisition of  the lower qualifications prescribed for the post  shall also be sufficient for the post. If a person  has  acquired  higher  qualifications  in  the  same  Faculty,  such  qualifications  can  certainly  be  stated to presuppose the acquisition of the lower  qualifications prescribed for the post. In the case  it may not be necessary to seek far.”

(emphasis is ours) It is no doubt true, that this Court held in the afore-stated  judgment, that if a person had acquired higher qualifications in  the same faculty, such qualifications can certainly  be stated  to  presuppose  the  acquisition  of  the  lower  qualification.  Possession of higher qualification would therefore, according to  learned counsel, make a candidate eligible for the post, even  though,  the  candidate  does  not  possess  the  prescribed  qualification.  The  question  however  is,  whether  the  above  position can be applied to the present case?

It  was  sought  to  be  asserted  on  the  basis  of  the

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aforesaid  observations,  that  since  the  private  respondents  possess  higher  qualifications,  then  the  qualification  of  JBT/ETT,  they  should  be  treated  as  having  fulfilled  the  qualification stipulated for the posts of JBT/ETT teachers.  It  is not possible for us to accept the aforesaid submission of the  learned  counsel  for  the  private  respondents,  because  the  statutory  rules  which  were  taken  into  consideration  by  this  Court while recording the aforesaid observations in Jyoti K.K.'s  case  (supra),  permitted  the  aforesaid  course.   The  statutory  rule,  in the decision relied on by the learned counsel for the  private respondents, is extracted hereunder:   

6. Rule 10(a)(ii) reads as follows : “10.(a)(ii) Notwithstanding anything contained in  these  Rules  or  in  the  Special  Rules,  the  qualifications recognised  by executive  orders or  standing orders of Government as equivalent to a  qualification specified for a post in the Special  Rules  and    such  of  those  higher  qualifications    which  presuppose  the  acquisition  of  the  lower  qualification prescribed for the post shall also  be sufficient for the post.”    

(emphasis is ours)

A perusal of the rule clearly reveals, that the possession of  higher  qualification  would  presuppose  the  acquisition  of  the  lower qualification prescribed for the posts.  Insofar as the  present controversy is concerned, there is no similar statutory  provision  authorizing  the  appointment  of  persons  with  higher  qualifications.  Moreover, in view of the decision rendered by  this Court in P.M. Latha's case (supra) and in Yogesh Kumar's  case (supra) lead to the clear an unambiguous conclusion that

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none of the private respondents could be considered as eligible  for selection or appointment to the advertised posts of JBT/ETT  teachers.

It is also necessary for us to take into consideration  Government Instructions dated 20.12.1995, which were relied upon  by  learned  counsel,  so  as  to  contend,  that  the  private  respondents  who  possess  higher  qualifications  including  the  qualifications  depicted  as  preferential  in  the  advertisement,  should  be  treated  as  eligible.   Relevant  extract  of  the  aforesaid  Government  Instructions  dated  20.12.1995  is  being  reproduced hereunder:

“6. Vide  letter  No.1/18/95-3Edu-7/20602,  dated  14.09.1995 the Government has taken the decision  that in future the appointment of J.B.T. Teachers  in the Government Schools may be done in two parts.  In first part the candidates who are possessing the  qualification of J.B.T./E.T.T. or equivalent shall  be considered. Thereafter, in case it emerges that,  J.B.T./E.T.T.  qualified  candidates  are  not  available, in that event, appointments may be made  by adopting second part. It should be mentioned in  the  advertisement,  that  in  case  candidates  with  J.B.T./E.T.T. or equivalent qualification are not  available, then candidates who have graduation/post  graduation qualifications with B.Ed. will also be  considered. But the candidates having qualification  of  graduation/post  graduation/  along  with  B.Ed.  shall be paid the scale of J.B.T. only. In such  cases,  an  affidavit  will  be  furnished  by  the  candidates  that  after  selection,  being  graduates/post graduates candidates, will not claim  any  other  benefit  or  higher  scale,  and  in  this  regard, at the time of sending the requisition of  posts,  this  shall  also  be  incorporated  in  the  advertisement.”

Having  given  our  thoughtful  consideration  to  the  submissions advanced at the hands of the learned counsel for the

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private respondents, based on the government instructions dated  20.12.1995, we are of the view, that the private respondents do  not  satisfy  the  pre-condition  of  valid  appointment  expressed  therein,  inasmuch  as,  it  was  imperative  for  the  Selection  Committee,  in  the  first  instance,  to  consider  only  those  candidates  who  possessed  the  qualification  of  JBT/ETT,  and  thereupon, posts that remained unfilled could be filled up with  persons  possessing  higher  qualifications,  i.e.,  graduate/post  graduate  qualifications  along  with  B.Ed..   That  was  not  the  procedure which came to be adopted in the present controversy.  Therefore  per  se,  no  benefit  can  flow  to  the  private  respondents, from the government instructions relied upon by the  learned counsel. Be that as it may, it needs to be emphasised,  that para 6 of the Government Instructions dated 20.12.1995, are  in clear violation of the statutory process of selection and  appointment postulated under the 1981 Rules.  Even if the above  Government  Instructions  would  have  bestowed  validity  on  the  selection process, through which the private respondents came to  be appointed, the same could not have been acceded to, since  Government Instructions in violation of the statutory rules, are  a nullity in law. In view of the foregoing reasons, it is not  possible for us to bestow legitimacy/legality to the appointment  of the respondents as JBT/ETT teachers.

For the reasons recorded hereinabove, we are satisfied  that the impugned order passed by the High Court dated 2.7.2007  is liable to be set aside.  The same is accordingly hereby set

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aside. We were informed, that the private respondents came to  

be  appointed  by  the  Management  of  the  Doaba  Arya  Senior  Secondary School, Nawanshahr, in the year 2002.  We were also  informed, that the private respondents have continued to be in  the  employment  of  the  Doaba  Arya  Senior  Secondary  School,  Nawanshahr,  till  date.   No  fault  whatsoever  lies  with  the  private  respondents.   The  fault,  if  at  all,  lies  with  the  Management  of  the  Doaba  Arya  Senior  Secondary  School,  Nawanshahr.  Unfortunately,  the   Management  of  the  Doaba  Arya  Senior Secondary School, Nawanshahr, issued an advertisement in  violation of the 1981 Rules.  The procedure depicted in the 1981  Rules was also not followed while making appointments, to the  six  vacant  posts  of  JBT/ETT  teachers.  The  Management  had  required  the  private  respondents  to  discharge  their  duties,  without  the  prior  approval  of  the  State  Government.  The  Management  should  therefore  bear  the  responsibility  of  shouldering the emoluments payable to the private respondents.  We therefore, hereby direct the  Management of the Doaba Arya  Senior Secondary School, Nawanshahr to pay all emoluments (if  the same are still unpaid) to the private respondents, within  two months from the date of receipt of a certified copy of this  order.

The instant civil appeals are accordingly allowed in  the above terms. As  a  sequel  to  the  above,  all  pending  interlocutory applications are disposed of.

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Civil Appeal Nos. 7970-7971 of 2009 It is not a matter of dispute that the controversy in  

the present civil appeals is identical to the one adjudicated  upon by us in the case of State of Punjab and others vs. Anita  and  others  (Civil  Appeal  Nos.7983-7986  of  2009)  decided  on  24.09.2014.

In view of the above, the instant civil appeals are  also allowed in the same terms.

…..........................J. [JAGDISH SINGH KHEHAR]

NEW DELHI; …..........................J. SEPTEMBER 24, 2014. [ARUN MISHRA]

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ITEM NO.104               COURT NO.7               SECTION IV                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Civil Appeal  No(s).  7983-7986/2009 STATE OF PUNJAB & ORS.                             Appellant(s)                                 VERSUS ANITA AND ORS                                      Respondent(s) (with appln(s) for exemption from filing OT and application for  transposing  and  impleadment  of  non-official  appellants  as  respondents)  WITH C.A. No. 7970-7971/2009 (With Office Report)   Date : 24/09/2014 These appeals were called on for hearing  

       today. CORAM :           HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR          HON'BLE MR. JUSTICE ARUN MISHRA

For Appellant(s) Mr. Sanchar Anand, AAG Mr. Piyush Hands, Adv.

                   for Mr. Kuldip Singh,AOR(NP)                    for Mr. Ajay Pal,AOR(NP) For Respondent(s) Mr. A.V. Palli, Adv.

Mr. Anupanm Raina, Adv.                      for Mrs. Rekha Palli,AOR(NP)                     Ms. S. Janani,Adv.

Mr. Deepak Goel, Adv.                                UPON hearing the counsel the Court made the following                              O R D E R

The appeals are allowed in terms of the Reportable  Signed Judgment, which is placed on the file.

All pending interlocutory applications are disposed of.

(Parveen Kr. Chawla) (Phoolan Wati Arora)     Court Master  Assistant Registrar