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TMI Blog2011 (2) TMI 1371X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ather 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution 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 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 Select ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ERS: (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. 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 seco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dhya 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter 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, 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, Allahaba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 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 rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 Butto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 arbitrari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, 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 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 requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 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 educatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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