TMI Blog2011 (2) TMI 1371X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvertised 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 di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the respondents that teachers in government colleges have also been granted the said benefit though not entitled and the respondents herein 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 Government for the purpose of making app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ittee of Management does not have a right to make the appointment of a 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 beyon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... na, Advocates for the State and Shri A.K. Sanghi, 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. Dissemina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 enshrin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quisite 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: 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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) 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 v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s., 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, (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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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- aid Scheme. Respondent-teacher therein had secured 53.9 % marks and required eligibility ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (x) The post of the teachers i.e. respondents is transferable to any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 schem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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