The State Of Odisha vs Sulekh Chandra Pradhan

CIVIL APPEAL NOS.3036­3064 OF 2022 [Arising out of Special Leave Petition (Civil) No.22987­ 23015 of 2019]

STATE OF ODISHA & ORS. ETC.ETC. ...APPELLANT(S)

VERSUS SULEKH CHANDRA PRADHAN ETC. ETC. ...RESPONDENT(S)

JUDGMENT

B.R. GAVAI, J.

1. Leave granted.

2. The appellants – State of Odisha and others have

approached this Court, being aggrieved by the judgment and

order dated 20th December, 2018, delivered by the Division

Bench of the High Court of Orissa at Cuttack in a batch of writ

1 petitions being Writ Petition (Civil) No. 6557 of 2018 along with

connected matters, thereby dismissing the said writ petitions

filed by the appellants – State of Odisha and others, challenging

the judgments and orders delivered by the Odisha

Administrative Tribunal (hereinafter referred to as “the

Tribunal”), Bhubaneswar Bench, Bhubaneswar/Cuttack

Bench, Cuttack dated 18th May, 2017 in O.A. No. 2266 of 2015

along with connected matters and 30 th January, 2018 in O.A.

No.3420 (C) of 2015 along with connected matters.

3. Vide order dated 18th May, 2017, delivered in O.A.

No.2266 of 2015 along with connected matters, the Tribunal,

Bhubaneswar Bench had allowed the Original Applications filed

by the applicants therein (respondents herein), thereby setting

aside the termination of the applicants (respondents herein)

and directing/allowing them to continue as Government

servant as third teacher/Assistant Teacher in Middle English

Schools (hereinafter referred to as “M.E. Schools”) with effect

2 from 1st April, 2011, as regular teacher. Vide order dated 30 th

January, 2018, the Tribunal, Cuttack Bench followed its earlier

order dated 18th May, 2017 and granted the same relief to 137

Hindi Teachers.

4. The parties are referred herein as they are referred to in

the Original Applications.

5. The facts giving rise to the present appeals are as under:

6. All the applicants joined the Aided M.E. School as Hindi

Teachers, in or around 1988­89. The applicant­Sulekh

Chandra Pradhan (respondent No.1 herein) in the lead case

before the Tribunal, Bhubaneswar Bench, i.e., O.A. No.2266 of

2015, was appointed on 21st June, 1988 and joined on 23 rd

June, 1988, as Hindi Teacher at Nrusingha Jena M.E. School,

Naginipur in District Kendrapada. The appointment of the said

applicant was made by the Managing Committee of the said

School.

3

7. On 12th May, 1992, the Government of Orissa, Education

Department issued a resolution, thereby taking over all M.E.

Schools situated in the State of Odisha with effect from 1 st

April, 1991. Though the Government took over all the teachers

including non­teaching staff of the M.E. School as Government

servants, Hindi Teachers were not taken over as Government

servants and therefore, the services of the applicants were

automatically terminated. Aggrieved thereby, on 2 nd July, 1993,

Sulekh Chandra Pradhan (respondent No.1 herein), approached

the High Court of Orissa at Cuttack by way of Writ Petition

being OJC No. 3042 of 1993, thereby raising a grievance that

the benefits extended to Hindi Teachers in terms of the letter of

the Deputy Director, Sanskrit, Hindi and Special Education

(hereinafter referred to as “the Deputy Director”) dated 1 st May,

1992 were not being extended to him. It was asserted that

though he possessed the requisite qualification, he was not

being absorbed against the third teacher post in the M.E.

School where he was earlier working. The Division Bench of

4 the High Court, vide judgment and order dated 2 nd July, 1993,

disposed of the said writ petition by directing the Director of

Elementary Education, Orissa (hereinafter referred to as “the

Director”), to look into the grievances of the petitioner therein

(i.e. Sulekh Chandra Pradhan) within four months from the

date of receipt of the order.

8. On 7th January, 1994, the Government of Orissa issued a

clarification that the letter dated 1st May, 1992 of the Deputy

Director addressed to all Inspectors of Schools/all District

Inspector of Schools, was applicable only to the teachers, who

were appointed against sanctioned posts and were drawing

their salaries from the Government fund under Plan and non­

plan scheme. By the said communication dated 1 st May, 1992,

the Deputy Director had clarified that Hindi being a non­

examinable subject in M.E. Schools, there was no need to allow

the existing Hindi Teachers in M.E. Schools to continue further.

5

9. It appears that in pursuance to the orders of the High

Court, the Government of Orissa addressed a letter dated 29 th

September, 1995 to the Director, thereby informing that the

Government had decided to adjust such Hindi Teachers

appointed by the Managing Committee within the yardstick in

UP (ME) Schools as Assistant Teachers in the taken over M.E.

Schools either in vacant posts of Assistant Teacher or in the

post of Hindi Teacher to be created in such schools or in other

schools in relaxation of the qualifications, prescribed for the

third teachers. Vide the said communication dated 29 th

September, 1995, the Director was asked to ascertain the

names of the Hindi Teachers along with their qualification from

the concerned District Inspector of Schools. In response to the

same, the Director immediately informed the Government that

since the appointments were made beyond the yardstick and

against the provisions of Odisha Education (Recruitment and

Conditions of Service of Teachers and Members of the Staff of

Aided Educational Institutions) Rules, 1974 (hereinafter

6 referred to as “the said Rules”), the reference to District

Inspector of Schools to furnish the names and qualifications of

such Hindi Teachers would lead to every possibility for

manipulation of the office records. It was also pointed out that

such an exercise may enable to sponsor names of Hindi

Teachers for approval by making back­dated appointments. It

was therefore recommended that cases of only such Teachers

who had filed the writ application between 12 th May, 1992 and

12th May, 1993, i.e., within a year after taking over of the

schools should be considered as one time measure.

10. Vide communication dated 21st May, 1996, the

Government of Orissa informed the Director that the

Government has decided to adjust 137 Hindi Teachers in M.E.

Schools. It appears that vide communication dated 17 th June,

1996, the Government of Orissa also informed the Director that

while examining the original papers of Hindi Teachers, their

Acquaintance Roll should be verified by the District Inspector of

7 Schools. It further appears that vide communication dated 21 st

August, 1996, the Government of Orissa informed the Director

that no action be taken in pursuance to its earlier

letters/communications dated 21st May, 1996 and 17th June,

1996, until further orders of the State Government.

11. Ignoring the letter/communication dated 21st August,

1996, the respective District Inspector of Schools issued

appointment order dated 27th August, 1996 in favour of the

applicant – respondent No. 1 herein. Noticing this, the

Directorate of Elementary Education, Orissa, Bhubaneswar

addressed a communication/letter dated 1st October, 1996 to

the District Inspector of Schools informing that all

appointments made by them should be kept in abeyance. It

appears that on the basis of the said communication dated 1 st

October, 1996, the services of the applicants/Hindi Teachers

were discontinued with effect from 4th November, 1996. On 5th

September, 1998, the Government of Orissa addressed a

8 communication to the Director, stating therein that the

Government has withdrawn its G.O. No.31360 SME dated 29 th

September, 1995.

12. It is the contention of the State Government that the Joint

Secretary to the Government of Orissa, Department of School

and Mass Education addressed a communication dated 7 th

July, 2009 to the Director, stating therein that the Government

had decided to adjust the services of 137 Hindi Teachers in

M.E. Schools as Assistant Teachers against the vacant posts.

Vide another communication dated 2nd February, 2011, the

office of the Director informed the District Inspectors of Schools

that a committee constituted and headed by them should

scrutinize the original papers of Hindi Teachers and

acquaintance roll of the incumbents should be verified with

reference to the cash book of the School from the date of their

joining before the adjustment of such teachers. In pursuance

to the aforesaid communication dated 2nd February, 2011, the

9 applicants/respondents were appointed on 31 st March, 2011 as

Assistant Teachers.

13. It appears that certain teachers had approached the

Tribunal by filing various applications, thereby challenging the

order dated 1st October, 1996 and 4th November, 1996, vide

which the appointment of teachers were kept in abeyance. One

of such applications being O.A. No.4029(2) of 1996 came to be

rejected by the Tribunal by order dated 12 th April, 2012. It

appears that one another application being O.A. No.3800 (C) of

2012 was filed by one Nimai Charan Dash, seeking a direction

to quash the order dated 21st August, 2012 whereby the

representation of the applicant therein to adjust him as a

regular teacher came to be rejected. The said application came

to be rejected by the Tribunal, Cuttack Bench vide order dated

23rd September, 2013. While rejecting the said O.A. the

Tribunal, Cuttack Bench, directed a detailed enquiry to be

conducted through the Vigilance Department.

10

14. In the enquiry, it was found that the letter dated 7 th July,

2009 of the Government of Orissa addressed to the Director to

adjust 137 Hindi Teachers as Assistant Teachers against

vacant posts was issued by suppressing its earlier letter dated

5th September, 1998, whereby the letter dated 29 th September,

1995 to adjust the Hindi Teachers was withdrawn. The

Government of Orissa, therefore, vide communication dated

26th February, 2014, directed the Director to remove 137 Hindi

Teachers, who were illegally adjusted by the concerned District

Inspector of Schools. Accordingly, the services of the

applicants/Teachers came to be terminated with effect from

15th March, 2014.

15. The applicants, being aggrieved by their termination

approached the High Court by way of Writ Petitions being Writ

Petition (Civil) No.6747 of 2014 and other writ petitions. The

High Court vide order dated 9th May, 2014, delivered in Writ

Petition (Civil) No.6747 of 2014, found that the termination was

11 done without following the principles of natural justice and as

such, set aside the same. However, liberty was granted to the

State to proceed against the petitioner therein (i.e., Ramesh

Kumar Mohanty) by complying with the Rules governing the

employment of the petitioner therein and the requirement of the

rule of natural justice. The High Court further directed that the

services/appointments of such of the teachers would be

continued till the decisions were taken by the authorities after

remand.

16. In pursuance thereof, the applicants/teachers were

reinstated on 15th December, 2014. In view of the liberty

granted by the High Court, show cause notices were issued to

the applicants on 22nd July, 2015. Some of the applicants filed

their replies and appeared for personal hearing. Many of them

chose not to do so. The services of the applicants came to be

terminated with effect from 22nd August, 2015. Being aggrieved,

a batch of Original Applications came to be filed before the

12 Tribunal. The same came to be allowed by the Tribunal,

Bhubaneswar Bench, vide order dated 18 th May, 2017, thereby

quashing the show cause notices dated 22nd July, 2015 and

holding that the applicants were entitled to continue as regular

Government servants as third teacher/Assistant Teacher in

M.E. School with effect from 1st April, 2011.

17. Vide another order dated 30th January, 2018, the

Tribunal, Cuttack Bench, followed the abovementioned order

dated 18th May, 2017, passed by the Tribunal, Bhubaneswar

Bench and granted similar relief to 137 Hindi Teacher.

18. Being aggrieved by the judgments and orders dated 18 th

May, 2017 and 30th January, 2018 of the Tribunal, the State of

Odisha filed writ petitions before the High Court. The same

were dismissed by the impugned judgment and order dated 20 th

December, 2018. Being aggrieved thereby, the present appeals

by way of special leave are filed. Vide order dated 20 th

13 September, 2019, this Court issued notice and granted stay to

the impugned judgment and order.

19. We have heard Shri Chander Uday Singh, learned Senior

Counsel appearing on behalf of the appellants, Shri Gaurav

Agrawal, learned counsel appearing on behalf of the

respondents/teachers and Shri R. Balasubramanian, learned

Senior Counsel appearing on behalf of the

Interveners/applicants.

20. Shri Chander Uday Singh, learned Senior Counsel

appearing on behalf of the appellants would submit that the

High Court has grossly erred in holding that the State had not

challenged the judgment and order dated 18 th May, 2017,

passed by the Tribunal, Bhubaneswar Bench, in O.A. No.2266

of 2015 and other connected cases. He submitted that, as a

matter of fact, Writ Petition (Civil) No.6557 of 2018 was filed

challenging the judgment and order dated 18th May, 2017,

passed by the Tribunal in O.A. No.2266 of 2015 and other

14 connected cases. He submitted that the High Court has erred

in holding that the teachers had discharged service under the

State Government for more than two decades. He further

submitted that the Division Bench of High Court has erred in

holding that the State had meted out discriminatory treatment

amongst the teachers. He therefore submits that the

judgments and orders passed by the Tribunal as well as the

High Court are not sustainable in law and liable to be set aside.

21. Shri Singh further submitted that the appointments made

are contrary to Rules 5 and 6 of the said Rules and as such, the

appointments made, de hors the said Rules, cannot be

sustained. He further submitted that the Tribunal, while

delivering the judgments and orders dated 18 th May, 2017 and

30th January, 2018, has failed to take into consideration the

earlier orders of the Tribunal dated 25th June, 2013 and 23rd

September, 2013, vide which the Tribunal had rejected similar

claims made by the Hindi Teachers. He further submits that,

15 as a matter of fact, Sri Antaryami Bal, whose O.A. (No. 2270 of

2015) has been allowed by the Tribunal vide judgment and

order dated 18th May, 2017, was the applicant in O.A. No.4029

(2) of 1996, which was rejected by the Tribunal, Cuttack Bench

by a well­reasoned judgment and order dated 12 th April, 2012.

He therefore submits that the judgments and orders of the

Tribunal, which were impugned before the High Court, would

also not be sustainable on the ground of judicial propriety.

22. On facts, Shri Singh submitted that the

applicants/teachers have worked only between 27 th August,

1996 and 4th November,1996; between 31st March, 2011 and

15th March, 2014; and lastly from 15 th December, 2014 till 25th

August, 2015. The third period was on account of the orders

passed by the High Court. He therefore submits that, at the

most, the applicants/teachers have worked approximately for a

period of four years.

16

23. Shri Gaurav Agrawal, learned counsel, would submit that

though the M.E. Schools had a sanction of two posts, i.e., one

post of Headmaster and one post of Assistant Teacher; the

posts of Hindi Teacher were filled in by the Management on

non­grant basis. He submits that the said Rules would be

applicable only to the appointments made on grant­in­aid basis

and as such, to the post of Headmaster and to the one post of

Assistant Teacher. Since the applicants/teachers, who were

appointed on a third post, which was on non­grant basis, they

would not be governed by the said Rules.

24. Shri Agrawal further submits that in pursuance to the

order passed by the Division Bench of the High Court in O.J.C.

No. 3042 of 1993 dated 2 nd July, 1993, the State had framed a

policy for absorption of these teachers as a one­time measure.

He submits that prior to their absorption, a detailed scrutiny

and enquiry was required to be done. He submits that if

applicants/teachers were absorbed in pursuance to the policy,

17 which was framed in pursuance to the directions of the High

Court, the termination would be bad in law. He therefore

submits that no interference would be warranted with the

judgments and orders passed by the Tribunal and the High

Court.

25. Shri R. Balasubramanian, learned Senior Counsel

appearing on behalf of the interveners/applicants would submit

that similar matters, i.e., O.A. No. 3420(C) of 2015 and other

connected matters have been allowed by the Tribunal vide order

dated 30th January, 2018. He submits that the order of the

Tribunal was confirmed/affirmed by the High Court vide order

dated 11th April, 2018 passed in Writ Petition (Civil) No.21661

of 2017. He submits that the Special Leave Petition (Civil) D.

No.40252 of 2018 challenging the same has been rejected by

this Court vide order dated 19th July, 2019. He therefore

submits that the issue has reached a finality and therefore, it

will not be permissible for the State to do away with the

18 services of the Assistant Teachers. He further submits that the

applicants/interveners in the present appeals, who have

succeeded before the Tribunal, the High Court, and this Court

have not been reinstated.

26. For appreciating the rival submissions, it will be necessary

to refer to Rules 5 and 6 of the said Rules, which read thus:

“5. Procedure of application to the Board and appointment of Staff in aided institutions – (1)The Secretary of the Managing Committee or the Governing Body, as the case may be, of an Aided Educational Institution shall, on or before the thirty­first day of August every year apply to the Selection Board with copy of each application to the concerned Inspector of Schools in respect of Schools [Director of Higher Education] in respect of Colleges in such manner as the Selection Board may prescribe for selection of a candidate for appointment in the vacancy or vacancies in teaching post, and the concerned Inspector of Schools and [Director of Higher Education] shall process the applications so received and transmit the same to the Selection Board by thirtieth day of September

19 every year with certificate of genuineness of the vacancy or vacancies along with a statement of the vacancy position in the Educational Institutions within his jurisdiction. (2)The Selection Board shall, on receipt of applications and certificates referred to in Sub­rule () 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.

(3)Appointment shall be made by the Managing Committee or the Governing Body as the case may be, of the candidates allotted under Sub­rule (2). (4)[***] (5)In the extent of non­acceptance of offer of appointment by any candidate, report to that effect shall be sent to the [Director concerned] by the Secretary of the Managing Committee or the Governing Body, as the case may be, and upon receipt of such intimation, the name of the candidate shall be struck off the list. The consequential vacancies shall then be filled up by candidates allotted by the Director concerned from an additional list obtained from the Selection Board from

20 the list of persons in the waiting list with it.

(6)If instance of default in the appointment of candidates allotted by the Director, come to his notice, he shall be competent to withhold the individual teacher’s cost of the grant­in­ aid to be paid to the institution concerned and to take steps to supersede the Managing Committee or the Governing Body, as the case may be, under Section 11 of the Act. (7)Where a vacancy was not foreseen by thirty­first day of August the Secretary of the Managing Committee or the Government Body, as the case may be, shall apply to the Selection Board through the concerned Inspector or the Director, as the case may be, for allotment of candidates whereupon, the Selection Board shall recommend candidates out of the waiting list maintained by it, through the concerned Director.

(8)It shall not be necessary to apply to the Selection Board for appointments to vacancies [for a period of six months or till the date of receipt of the list referred to in Sub­rule (2) from the Selection Board whichever is earlier] and all such appointments may be made by the Managing Committee or the Government Body, as the case may be,

21 with the prior approval of the Inspector in respect of an Institution other than a College and of the Director in respect of a College.

[Provided that where it appears to the Inspector or the Director, as the case may be, that the appointment to a vacancy or vacancies in accordance with the provisions of this rule is being circumvented by making appointments in pursuance to this Sub­rule, the Director suo motu or on the receipt of a report from the Inspector as the case may be, shall be competent to proceed against the Managing Committee or the Governing Body under Section 11 of the Act.] (9)Notwithstanding anything contained in Sub­rule (8), it shall be competent for the Managing Committee or the Governing Bode, as the case may be to extend in terms of appointment beyond six months till the recommendation of the Selection Board is received with the prior approval of Government.

6. Procedure of selection of candidates – (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.

22 (2) The Selection Board shall conduct examinations including a viva voce examination of any candidate or all candidates with a view to determine their merit and suitability in the matter appointed in its regulations.”

27. Perusal of the sub­rule (1) of Rule 5 of the said Rules

would show that the Secretary of the Managing Committee or

the Governing Body, as the case may be, of an Aided

Educational Institution, is required to apply to the Selection

Board on or before the thirty­first day of August every year with

copy of each application to the concerned Inspector of Schools

and Director of Higher Education. The Inspector of Schools

and the Director of Higher Education are required to process

the applications so received and transmit the same to the

Selection Board by thirtieth day of September every year with

certificate of genuineness of the vacancy/vacancies. Perusal of

sub­rule (2) of Rule 5 of the said Rules would show that the

Selection Board shall recommend a list of candidates in order of

merit strictly according to the number of vacancies to the

23 concerned Directors, who shall thereupon allot candidates to

the concerned institutions strictly in order of merit as per

vacancy.

28. Perusal of sub­rule (6) of Rule 5 of the said Rules would

reveal that if the Management defaults in making appointment

of candidates allotted by the Director, he shall be competent to

withhold the individual teacher’s cost of the grant­in­aid to be

paid to the institution concerned. He is also entitled to take

steps to supersede the Managing Committee or the Governing

Body, as the case may be. Under sub­rule (8) of Rule 5 of the

said Rules, the relaxation is granted for filling up the vacancies

for a period of six months or till the date of receipt of the list as

referred to in sub­rule (2) of Rule 5 of the said Rules. However,

the same has to be with the prior approval of the Inspector in

respect of an institution other than a College and of the

Director in respect of a College.

24

29. Rule 6 of the said Rules prescribes the procedure for

selection of candidates.

30. It could thus be clearly seen that a detailed selection

procedure is prescribed for making appointment of vacancies

arising in Aided Educational Institution.

31. Perusal of the approval order dated 12 th September, 1980

of the Government of Orissa, Education and Youth Service

Department, would reveal that for each M.E. School, only two

posts, i.e., one post of a Trained Graduate Headmaster and one

post of a Trained Matric Teacher, have been sanctioned. The

order clearly provides that no other post of teaching and non­

teaching staff would be permitted.

32. It is not in dispute that the appointment of all the

applicants/respondents/teachers have been made directly by

the respective Management without following the procedure as

prescribed under the Rules/Statute. It is a trite law that the

appointments made in contravention of the statutory provisions

25 are void ab initio. Reference in this respect could be made to

the judgments of this Court in the cases of Ayurvidya

Prasarak Mandal and another vs. Geeta Bhaskar Pendse

(Mrs) and others1, J & K Public Service Commission and

others vs. Dr. Narinder Mohan and others2, Official

Liquidator vs. Dayanand and others3, and Union of India

and another vs. Raghuwar Pal Singh4.

33. We are unable to accept the contention raised by Shri

Gaurav Agrawal and Shri R. Balasubramanian that since the

applicants/teachers were appointed on posts which were not on

grant­in­aid basis, the said Rules are not applicable. The said

Rules would clearly show that they are applicable to Aided

Educational Institution. Undisputedly, the institutions in

which the applicants/teachers were appointed, were recognized

as Aided M.E. Schools vide G.O. dated 12th September, 1980. It

1 (1991) 3 SCC 246 2 (1994) 2 SCC 630 3 (2008) 10 SCC 1 4 (2018) 15 SCC 463

26 is also not in dispute that the appointments so made were

subsequent to the schools being recognized as Aided Schools.

As such, the contention in that regard deserves to be rejected.

34. We further find that the Tribunal, while delivering the

judgment and order dated 18th May, 2017 and 30th January,

2018, has failed to take into consideration the earlier orders

dated 25th June, 2013 and 23rd September, 2013 delivered by

the same Tribunal. In the said orders of 2013, the Tribunal

had elaborately considered the provisions of the said Rules and

found no merit in the contentions raised on behalf of the

applicants therein. The orders passed by the Tribunal ignoring

its earlier orders, which were passed elaborately considering

the scheme of the said Rules, are totally contrary to the well­

established norms of judicial propriety. The situation becomes

graver, inasmuch as, the Tribunal has allowed O.A. No.2270 OF

2015 by its order dated 18th May, 2017 filed by Sri Antaryami

Bal, whose earlier application being O.A. No. 4029(2) of 1996

27 with regard to the same relief was rejected by the Tribunal vide

its earlier order dated 12th April, 2012. The orders passed by

the Tribunal are, therefore, totally unsustainable in view of the

law laid down by this Court in the case of Official Liquidator

vs. Dayanand and others (supra). Not only this, the Tribunal

as well as the High Court has failed to take into consideration

the order passed by this Court on 2 nd December, 1996 in Civil

Appeal No. 15712 of 19965.

35. The impugned order passed by the High Court depicts

total non­application of mind. Whereas the cause title would

itself show that a Writ Petition (Civil) No.6557 of 2018 is

disposed of by the impugned judgment, the High Court

observed that the order dated 18 th May, 2017, passed by the

Tribunal in O.A. No.2266 of 2015, has not been challenged by

the State. Whereas the teachers have hardly worked for four

years and a substantial part thereof on account of interim

orders passed by the High Court, the High Court goes on to 5 (1997) 2 SCC 635

28 observe that the teachers have worked for a period of more than

20 years. No reasons, leave aside sound reasons, are reflected

in the impugned order while dismissing the writ petitions filed

by the State.

36. That leaves us with the submission of Shri R.

Balasubramanian, learned Senior Counsel that since the view

taken by the Tribunal has been affirmed by the High Court and

the Special Leave Petition challenging the same has been

dismissed, the view of the Tribunal has become final. In this

respect, reliance could be placed on the judgment of this Court

in the case of Kunhayammed and others vs. State of Kerala

and another6, wherein this Court has held as under:

“27. A petition for leave to appeal to this Court may be dismissed by a non­speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non­speaking order, i.e., it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of 6 (2000) 6 SCC 359

29 merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared. If the order of dismissal be supported by reasons then also the doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal. We have already dealt with this aspect earlier. Still the reasons stated by the Court would attract applicability of Article 141 of the Constitution if there is a law declared by the Supreme Court which obviously would be binding on all the courts and tribunals in India and certainly the parties thereto. The statement contained in the order other than on points of law would be binding on the parties and the court or tribunal, whose order was under challenge on the principle of judicial discipline, this Court being the Apex Court of the country.

No court or tribunal or parties would have the liberty of taking or canvassing any view contrary to the one expressed by this Court. The order of Supreme Court would mean that it has declared the law and in that light the case was considered not fit for grant of leave. The declaration of law will be governed by Article 141 but still, the case not being

30 one where leave was granted, the doctrine of merger does not apply. The Court sometimes leaves the question of law open. Or it sometimes briefly lays down the principle, may be, contrary to the one laid down by the High Court and yet would dismiss the special leave petition. The reasons given are intended for purposes of Article 141. This is so done because in the event of merely dismissing the special leave petition, it is likely that an argument could be advanced in the High Court that the Supreme Court has to be understood as not to have differed in law with the High Court.” [emphasis supplied]

37. It is thus clear that a mere dismissal of the Special Leave

Petition would not mean that the view of the High Court has

been approved by this Court. As such, the contention in that

regard is rejected.

38. We are, therefore, of the considered view that the Tribunal

has erred in allowing the Original Applications of the

applicants/teachers. Similarly, the High Court has also erred

in dismissing the petitions filed by the appellants.

31

39. In the result, the appeals are allowed. The impugned

judgment and order of the Division Bench of the High Court

dated 20th December, 2018 passed in a batch of writ petitions

and the judgments and orders dated 18th May, 2017 and 30th

January, 2018 of the Tribunal passed in a batch of Original

Applications are quashed and set aside. The Original

Applications filed by the respondents/applicants before the

Tribunal are dismissed.

40. All pending applications, including applications for

intervention, shall stand disposed of. There shall be no order

as to costs.

…..….......................J. [L. NAGESWARA RAO]

…….........................J. [B.R. GAVAI] NEW DELHI;

APRIL 20, 2022

32