State Of Orissa & Anr vs Mamata Mohanty

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

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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

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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

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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

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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

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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

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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.

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(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

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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.

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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."

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(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,

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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

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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

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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

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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,

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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

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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

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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

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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)

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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)

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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

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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

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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

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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.

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February 9, 2011 (Dr. B.S. CHAUHAN)

4