TMI Blog2004 (1) TMI 674X X X X Extracts X X X X X X X X Extracts X X X X ..... ified being the holder of a post of profit under the State of Assam. BACKGROUND FACTS : The appellant was said to have been appointed as an Assistant Teacher in 'Pabha Chariali M.E. Madarassa School' (hereinafter referred to as 'the said School'). He was working therein as an Assistant Teacher without any remuneration. Primary education is imparted in the said School. It appears that the primary education in the State of Assam used to be governed by three Acts, known as 'Assam Basic Education Act, 1954', Assam, Elementary Education Act, 1962' and 'Assam Elementary Education Act, 1968'. In terms of the 1968 Act, the Regional Boards of Elementary Education were constituted which took over the management of elementary schools and pre-primary schools. There also existed a State Board of Elementary Education constituted under Section 4 of Assam Elementary Education Act, 1968. The State thereafter enacted the Assam Elementary Education (Provincialisation) Act, 1974 (Assam Act No. VI of 1975) to provide for provincialisation of the elementary education in the State of Assam, in terms whereof the services of employees of the different categ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the repealed Acts :- The Assam Basic Education Act, 1954 (Act XXVI of 1954), the Assam Elementary Education Act, 1962 (Act XXX of 1962), and the Assam Elementary Education Act, 1968 (Act XVIII) of 1969) shall be counted towards pension and other retirement benefits provided such services are substantive and permanent. Explanation : Services rendered temporarily against leave or deputation vacancies shall be excluded. (b) They shall be entitled to such scales of pay and allowances and other benefits as may be admissible to the teachers of corresponding rank of the Government School services with effect from the date of provincialisation. (c) They shall be superannuated on attaining 58 years of age. The said school was not being maintained by any authority constituted under any of the aforementioned statutes. A notification, however, was issued on or about 19.11.1991 whereby and whereunder the said school was provincialised. Indisputably, the names of the appellant herein and a large number of teachers were dropped from the list of approved teachers and their services had not been provincialised under the provisions of the 1974 Act. All Assam Middle English ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the District Elementary Education Officer by a letter dated 16.12.1999 addressed to the Secretary to the Government of Assam allegedly informed the latter about regularization of 97 numbers of dropped teachers and brought to his notice that it may be necessary to take steps for regularization of other teachers by creating posts therefor. As, allegedly, the order of the High Court was not complied with, a contempt petition was filed wherein in his affidavit the District Elementary Education Officer alleged that in compliance with the order of the court dated 13.11.1998, the services of 105 dropped teachers were regularized w.e.f. 24.4.1998 by an order dated 30.10.2000, and therein the name of the appellant found place at Sl. No.28. It, however, appears that the appellant herein stopped attending the said school whereafter the Head Master of the said School by letters dated 2.5.2000, 12.6.2000 and 21.8.2000 asked the appellant to come to the school with sufficient cause for his absence failing which action would be taken against him. The appellant neither joined the School nor replied to the said notices. The Managing Committee of the said School adopted a resolution to the followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant was elected whereafter the election petition was filed by the first respondent. ISSUES : The High Court having regard to the pleadings of the parties, inter alia, framed the following issues: (5) Whether the Respondent No.1 on the date of his nomination held any office of profit ? (6) Whether on the date of scrutiny of nomination papers and also on the date of election the Respondent No.1 was disqualified for being chosen to the Legislative Assembly of the 191(1)(A) of the Indian Constitution and Section 100(1)(a) and Section 100(1((d)(iv) of the Act ? HIGH COURT JUDGMENT : The High Court in its impugned judgment held that : (i) an Assistant Teacher in the school whose services had been provincialised by the Government of Assam would be holder of an office of profit under the State of Assam, in view of the order of the High Court in Writ Appeal No.474 of 1997 whereby and whereunder the State was directed to consider cases of 1123 dropped teachers for regularization/provincialisation; (ii) As pursuant to or in furtherance thereof the services of several teachers including that of the appellant were regularized in terms of order dated 8.1.1999 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the District Elementary Education Officer, Lakhimpur in the contempt proceedings. The learned counsel would contend that as the order of regularization was passed only on 30.10.2000, the same was non est in the eye of law. It was further submitted that even from the said order dated 30.10.2000, it would appear that one Naseema Begum claimed seniority over the appellant on the ground that he superseded her and, thus, even the order of regularization did not attain finality. The learned counsel would submit that in terms of Rule 8 of 1981 Rules, a register is required to be opened at the beginning of service by the DI of School and as no service records had been opened the appellant cannot be said to be holder of an office of profit under the State. Relying on or on the basis of a decision in R.P. Moidutty vs. P.T. Kunju Mohammad and Another [(2000) 1 SCC 481], the learned counsel would argue that the first respondent herein has failed to discharge his heavy onus. Mr. Mohta would also contend that the High Court committed an error in setting aside the election on mere surmises and conjectures. Mr. U.N. Bachawat, learned Senior Counsel appearing on behalf of the respondents, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry provision therefor according to Mr. Bachawat and in support of his aforementioned contention he relied upon M.V. Rajashekaran Ors. vs. Vatal Nagaraj Ors. [JT 2002 (1) SC 237]. ANALYSIS : The parties have not brought on records the offer of appointment, if any, issued in favour of the appellant herein by the Managing Committee of the said School at the time of his joining. Admittedly, he had been rendering his services in the School without any remuneration. The terms and conditions of his job are not known. It is admitted from the records that he fought election in the year 1998 and during the relevant period he discontinued going to the School but thereafter again he started going to the School. It is also not disputed he had not been going to the School for a long time, as a result whereof the said letters 2.5.2000, 12.6.2000 and 21.8.2000 came to be issued . The authenticity of the letter of the Head Master dated 30.8.2000 is not in dispute. The question in the aforementioned situation would be as regard the effect thereof vis-`-vis his purported regularization in terms of letter dated 30.10.2000 w.e.f. 24.4.1998. LEGAL IMPLICATIONS: The statutory provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erned teachers so as to enable the State to consider and complete the process of regularization/provincialisation of ME Madrassas during the year 1991-92 in addition to 1123 Assistant Teachers in case they find genuineness of claims of such Assistant Teachers. The order dated 8.1.1999 of the Director of Elementary Education stated that the services of the teachers should be regularized out of the posts already allotted to the concerned District Elementary Education Officer. He was asked to authenticate list of working teachers before regularization of services of such teachers. Despite that the name of the appellant appeared at Sl. No.56 thereof, such a direction was not final. The letter of the District Elementary Education Officer dated 16.12.1999, although discloses that he had finalized the list of 97 names, no order pursuant thereto had been issued. Even the order dated 30.10.2000 says that such purported provincialisation/regularization was provisional in nature. Such regularization was further subject to the outcome of order dated 25.9.2000 in Writ Appeal No.474 under C.R. No.2833 of 1997 in Contempt Case (C) No. 420 of 2000 of the High Court of Gauhati. From the list of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e matter of appointment, the employees can be regularized in their services. In S.V. Narayanappa (supra) whereupon Mr. Bachawat strongly relied, this Court stated that for the purpose of application of a Government order, it must be shown that the local candidate claiming the benefit thereof must satisfy that he was initially appointed prior to 31.12. 1959 and was in service on 1.1.1960 and continued till 22.9.1961. It was held : ...This construction finds support from sub-cl. (iii) which provides that local service prior to regularization would be counted for the purposes of leave, pension and increments though not for seniority as seniority was to be fixed from the length of service calculated from the date of regularization. It is manifest that unless the local service was continuous such service could not be taken into account for the purposes, in particular of pension and increments. How would increments, for example, be granted unless the service prior to such increments was continuous? The same consideration would also apply in the case of pension. It had, therefore, to be provided as has been done in sub-cl. (iv) that a break in service would not be condoned for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice in absence of any statute, a fortiori is also governed by the provisions of the Indian Contract Act. It is, therefore, not correct to contend that the order dated 30.10.2000 was not required to be communicated for making a valid contract of service. It was absolutely necessary to communicate the said order to the appellant by the State, acceptance thereof whether expressly or by necessary implications by the appellant was also required. The appellant did not do it nor it is the case of the State or the statutory authorities that such a relationship had come into being. The decision of this Court in Khemi Ram (supra) relied upon by Mr. Bachawat is not apposite as therein an order of suspension was in question. This Court in the said decision itself referred to its decision in State of Punjab vs. Amar Singh Harika [(AIR 1966 SC 1313], which stated that communication of an order dismissing an employee from service is imperative. If communication of an order for terminating the jural relationship is imperative, a fortiori it would also be imperative at the threshold. The High Court proceeded to render its opinion on a wrong premise. It was not a case where the High Court hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... page 309, it is stated : Effect on third parties : If an act or order is held to be ultra vires and void it is natural to assume that, being a nullity, it is to be treated as non-existent by all who would otherwise be concerned. But the judgment of a court binds only the parties to it, so that here also there are problems of relativity. Once again Lord Diplock has supplied the answer. Although such a decision is directly binding only as between the parties to the proceedings in which it was made, the application of the doctrine of precedent has the consequence of enabling the benefit of it to accrue to all other persons whose legal rights have been interfered with in reliance on the law which the statutory instrument purported to declare. In effect, therefore, the court's judgment of nullity operates ergaomnes, i.e. for and against everyone concerned. Patent and latent invalidity In a well-known passage Lord Radcliffe said : An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get ..... X X X X Extracts X X X X X X X X Extracts X X X X
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