REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2568 OF 2006
Pramod Kumar ...Appellant
Versus
U.P. Secondary Education Services
Commission & Ors. ...Respondents
JUDGMENT
S.B. SINHA, J :
1. Appellant was appointed as an Assistant Teacher in C.T. Grade in an
Intermediate College. Admittedly, essential qualifications and other
conditions for recruitment therefor are prescribed by Uttar Pradesh
Secondary Education Services Selection Boards Act, 1982 (the Act) and the
Rules framed thereunder. Section 16 of the Act provides for the essential
qualifications. In terms of the Act, rules were framed by the State of Uttar
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Pradesh in 1993 known as the Uttar Pradesh Secondary Education Services
Commission Rules (the Rules).
Section 16 of the Act reads, thus :
“16. Appointments to be made only on the
recommendations of the Board – (1)
Notwithstanding anything to the contrary contained
in the Intermediate Education Act, 1921 or the
regulations made thereunder but subject to the
provisions of Sections 12, 18, 21-B, 21-C, 21-D, 33,
33-A, 33-B, 33-C, 33-D, 33-E and 33-F, every
appointment of a teacher, shall on or after the date
of the commencement of the Uttar Pradesh
Secondary Education Services Selection Board
(Amendment) Act, 2001 be made by the
management only on the recommendation of the
Board”:
Provided that in respect of retrenched
employees, the provisions of Section 16-EE of the
Intermediate Education Act, 1921, shall mutatis
mutandis apply:
Provided further that the appointment of a
teacher by transfer from one Institution to another,
may be made in accordance with the regulations
made under Clause (c) of sub-section (2) of Section
16-G of the Intermediate Education Act, 1921:
(2) Any appointment made in contravention of the
provisions of sub-section (1) shall be void.”
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2. The minimum qualification for Masters and Teachers were laid down
in the Rules as prescribed under Section 16E, 16F and Section 16FF of the
Act.
Rule 3 of the Rules reads as under:-
“3. Qualifications and experience, etc. for
appointment as teacher. – (1) The minimum academic
qualification for appointment as teacher shall be as given
in Regulation 1 under Chapter II of the Regulations,
framed under the Intermediate Education Act, 1921.
(2) No male person shall be eligible for appointment
to the post of the head of an institution or teacher in a
girls institution.
Provided that nothing contained in this sub-rule shall
apply in relation to –
(i) a teacher already working in a permanent
capacity in a girls institution for promotion or
appointment to any higher post of a teacher not
being the post of the head of an institution in the
same institution.
(ii) Appointment as a teacher for the subject of
music in an institution to a person who is blind.
Provided further that when a suitable lady candidate
is not available for appointment in a girls institution for
the post of a teacher, not being the post of head of
institution, or for any other sufficient reason, the
Commission is satisfied that it is in the interest of the
students so to do, it may recommend a male candidate
for such post:
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Provided also that, before recommending a male
candidate in accordance with the preceding proviso, the
Commission may obtain and consider the views of the
Director and Management.”
4. It is neither in doubt nor in dispute that prior to coming into force of
the said Act, the matters relating to recruitment of Assistant Teachers used
to be governed by the U.P. Intermediate Education Act, 1921 (1921 Act).
A bare perusal of the aforementioned provisions read with those of 1921
Act would clearly show that the possession of a graduate degree from a
University recognized under the University Grants Commission Act (UGC
Act) or any other State Act was at all material and still is imperative.
5. Appellant admittedly did his B.Ed. Degree from Maithili Vishwa
Vidyapeeth, Sankat Mochan Dham Darbhanga, Bihar. The name of the
said institution allegedly figured in a `Directory of Institutions for Higher
Education’, published by Ministry of Education and Culture, Government of
India in the year 1982. It, however, stands admitted that it was not an
institution recognized under the UGC Act.
6. He was appointed on 29.11.1988 by the Principal/Manager, Shri
Jawahar Inter College Bamnauli (Meerut) stating;
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“You are hereby informed with pleasure that the
teacher’s selection committee of the college has
appointed you in short term vacancy as ad-hoc
assistant teacher in C.T. Grade on the basis of
interview held on 20.11.1988 up to the reversion of
Sh. Shiv Kumar Sharma at his post or vacancy filled
up and joined with a person selected by commission
at the above post.
Please join the duty at above post within 10 days,
otherwise this appointment letter of yours will be
deemed as cancelled.”
7. It became known to the University that he had not been possessing a
degree granted by a university recognized by the Commission.
He was asked to obtain a B.Ed. degree from a recognized University
within a period of two years. An opportunity was granted to him to obtain
such a degree by a letter dated 18.2.1993 stating;
“You, Shri Pramod Kumar, Asst. Teacher CT Grade,
know that you have acquired B.Ed. degree from
Maithili Vishwavidyapeeth Darbhanga. We came to
know from reliable sources that the said University
from where you have acquired B.Ed. degree has not
been recognized by University Grants Commission.
Earlier also by the Manager of Institution Shri
Naresh Singh Rathi has also directed you to acquire
B.Ed. degree from a recognized University within a
period of two years. Now I, as a last opportunity,
direct you to acquire B.Ed. degree from a
recognized University. You are requested to
acquire B.Ed. degree in future otherwise Managing
6Committee shall be constrained to take appropriate
action.”
8. He prayed for appearing in the said examination in B.Ed.
Correspondence Examination from Maharshi Dayanand University, Rohtak
(Haryana). Allegedly, such permission was granted and he obtained a
requisite degree. Before us, however, only a marksheet issued by the
Controller of Examination of Maharshi Dayanand University, Rohtak has
been placed. Whether the Correspondence Course for B.Ed. Degree
granted by the said University is valid and recognized by the State of U.P.
or not is not known.
9. Inter alia on the premise that he had not been paid his salary, he filed
a Writ Petition before the High Court of Judicature at Allahabad which was
marked as Civil Miscellaneous Writ Petition No. 1338 of 1989. Upon
noticing that he had been getting his salary from 1.1.1991, by a Judgment
and Order dated 5.7.1996, the High Court directed the respondents to pay
the arrears of salary from 1.12.1988 to 31.12.1990.
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10. Allegedly, as the said Order was not complied with, a Contempt
Petition was filed wherein a show cause notice was issued by the High
Court.
It is, however, not in dispute that a notice to show cause was served
upon him on or about 11.1.1987, on the premise charge that he had obtained
his appointment on the basis of a fabricated and illegal B.Ed. degree. Cause
was shown by him on 16.1.1997.
11. A departmental proceeding was thereafter initiated against the
appellant. On completion thereof, his services were terminated by an order
dated 12.2.1997. He filed a Writ Petition questioning the correctness of the
said order. By reason of a judgment and order dated 9.3.1997, a learned
Single Judge of the High Court dismissed the said Writ Petition stating :
“After considering respective contentions of the
parties and in view of the admitted facts, I find that
the petitioner was appointed originally when
admittedly he was not having proper qualification.
The petitioner has failed to show under what
circumstances he could be validly appointed on the
basis of such qualification of bachelor of education
degree awarded by a university which was non
recognised. That being so the appointment itself is
bad. No question of estoppel also arises in such
case. The law in this connection has been decided
in the case of Ravinder Sharma and Another versus
State of Punjab and Others reported on 1995 1
S.C.C. 138.
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In present case the petitioner’s appointment was not
having an approval and he was only paid salary
under the court’s order. Moreover, admittedly the
petitioner’s appointment was without there being a
proper qualification and as such the appointment of
the petitioner was in violation of section 16-E of the
U.P. Intermediate Education Act, 1921. In the
circumstances, the petitioner is not entitled to
protection under section 16-C(3) of the said act.”
12. The High Court, furthermore, in its judgment took into consideration
the contention of the appellant that his services should have been
regularised in terms of Section 33-A and Section 33-B of the Uttar Pradesh
Secondary Education Services Selection Board Act, 1982, as he had been
possessing the prescribed qualification at the material point of time.
13. A Special Appeal preferred by the appellant against the said judgment
and order has been dismissed by the Division Bench holding;
“Considering the totality of the facts and
circumstances as discussed above, we are of the
view that the initial appointment of the petitioner,
being wholly illegal and void by virtue of its being
de hors the rules his appointment to the said post of
assistant teacher in the Institution could not be
permitted to continue any more, even if he had
managed subsequently to obtain another of B.Ed.
We are in full agreement with the Ld. Single Judge
who has not found any good ground for interference
under the extra ordinary jurisdiction envisaged
under Article 226 of the Constitution of India. The
9decision given in the writ petition, thus, does not
require to be disturbed in the present intra court
appeal, which lacks merits and is hereby dismissed
with no order as to cost.”
14. Mr. P.S. Patwalia, the learned senior counsel appearing on behalf of
the appellant in support of this appeal inter alia submitted :
(i) Keeping in view the fact that the appellant did not conceal any
material fact and the management was aware that the degree
possessed by him was not granted by a recognized university, it is not
a case where he can be said to have committed a fraud upon the
institution.
(ii) In any event, as the management had permitted him to obtain a fresh
degree which having been obtained, his services should have been
directed to be continued.
(iii) The action of the management was mala fide as the departmental
proceeding was initiated only after the change in management and in
view of institution of a contempt petition against the management of
the institution.
(iv) Appellant having served the institution for more than nine years from
1988, the High Court should have allowed the writ application.
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15. Mr. S.R. Singh, the learned senior counsel appearing on behalf of the
respondents, on the other hand, submitted :
(a) Appellant having not possessed any valid degree from a University
recognised by the University Grants Commission, his appointment
was illegal.
(b) Rule 3 of 1993 Rules providing for a degree from a recognised
university as a sine quo non for appointment to a post. A subsequent
acquisition, therefore, would not come to his rescue.
(c) Appellant having not fulfilled the conditions precedent for
regularization of his services in terms of the provisions of the Uttar
Pradesh Secondary Education Selection Board Act, 1982, the High
Court has rightly rejected the said prayer.
17. The qualifications for holding a post have been laid down under a
statute. Any appointment in violation thereof would be a nullity.
18. It is a matter of some concern that appointments are being offered by
the authorities of the State without verifying the fact as to whether the
degree(s) possessed by the candidate(s) are valid or not. It was an ad hoc
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appointment. Why despite the same, he was allowed to obtain degree from
another university is not known
19. 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 regularized, particularly, when
the statute in no unmistakable term says so. Only an irregularity can be.
{See Secretary, State of Karnataka and Others Vs. Umadevi (3) and Others
[(2006) 4 SCC 1] National Fertilizers Ltd. and Ors. Vs. Somvir Singh
[(2006)5SCC493] and Post Master General, Kolkata and Ors.
Vs. Tutu Das (Dutta) [(2007)5SCC317] }
20. Various institutions have sprung up in different parts of India
representing that their degrees are recognized. However, even no such
representation appears to have been made to the appellant by the said
institution. The directory of institutions for higher education merely gives
details of the institutions. No statement was made therein that it was a
recognised university.
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21. Maithili Vishwa Vidyapeeth Sankat Mochan Dham was a name given
to an institution. It was not a University. It is said to have been founded in
the year 1962.
Admittedly, it is a privately managed institution. Although it offered
a large number of courses like Madhyama, Visarad, Shastri, Acharya,
Vidyabhaskar, Vidyaratna, Vidyavaridhi, Vidyavachaspati,
Mahamahopadhyaya, the number of teachers therein were nine only. What
sort of education was imparted therein is not known. How an institution
could be run with a teacher strength of nine can very well be imagined.
It is not in dispute that the said institution was not recognized by any
University. A degree is recognized only if it is granted by a University
constituted in terms of the University Grants Commission Act, 1956 or
under any State or Parliamentary Act. No University can be established by
a private management without any statutory backing.
22. The management of the school, when it came to learn that the
appellant did not possess a degree of B.Ed. from a recognised University,
should have terminated his services forthwith. It did not do so for reasons
best known to it. It has not been shown to us that the management of the
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school had any authority to allow the appellant to obtain the requisite degree
from any other University during the tenure of his services. Even the
Commission in its counter affidavit, although otherwise supports the case of
the appellant, did not say so.
Our attention has been drawn to a decision of the Punjab and Haryana
High Court in Ram Bhagat Sharma and Others Vs. State of Haryana and
Others [1997 (4) RSJ 134] wherein it was directed :
“With a view to protect the interest of the students
community, we direct the Government of Haryana
to take steps to prevent future recruitment of
persons possessing qualifications awarded by
Hindi Sahitya Sammelan, Allahabad, and/or Hindi
Sahitya Sammelan, Prayag, Allahabad, and at the
same time take appropriate measures to dispense
with the services of the unqualified teachers. For
this purpose, the Government of Haryana is
directed to issue written instructions to all
concerned that in future no appointment be given
to the persons possessing qualifications by the
institutions referred to herein above. We also
direct the Government of Haryana to take steps for
terminating the services of all such teachers who
have secured employment on the basis of
degrees/diplomas/certificates issued by Hindi
Sajhitya Sammelan, Allahabad and/or Hindi
Sahitya Sammelan, Prayag, Allahabad. However,
those who have completed three years service
should be given an opportunity to acquire the
requisite qualification within a stipulated time. In
case they fail to acquire such qualification, then
appropriate order be passed to dispense with the
services of such persons.”
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23. We, with respect, do not subscribe to the said view. In any event, it is
not a case where, this Court is to protect the interest of the students. The
question herein is as to whether the services of the appellant can be said to
have been illegally terminated or not.
24. A departmental proceeding against the appellant might have been
initiated after the change of management. We will also assume that the said
proceeding was initiated after the contempt proceeding was initiated.
Appellant, however, has filed a writ application for issuance of or in the
nature of a writ of mandamus. He, therefore, must establish existence of a
legal right in himself and a corresponding legal duty in the State. If he did
not possess the requisite qualification to hold a post, he could not have any
legal right to continue. It was, therefore, immaterial as to why and when
the said proceeding had been initiated against him.
Reliance placed by Mr. P.S. Patwalia on Shainda Hasan Vs. State of
Uttar Pradesh and Others [(1990) 3 SCC 48] is not apposite. Therein a
concession was made on behalf of the State that the University had agreed
that asking the appellant therein to leave the job after 16 years will be doing
injustice to her. Such a view might have been taken by this Court in
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exercise of its extra ordinary jurisdiction under Article 142 of the
Constitution of India. The question, however, that arose therein was as to
whether the Selection Committee could grant relaxation of the educational
qualification vis-`-vis the experience required to be obtained. It was held
that such a power did not exist in the Selection Committee.
It was, therefore, a case where relaxation in regard to experience was
sought for and granted. It was not a case where the appellant therein lacked
basic educational qualification. Herein, we are concerned with a case where
the appellant lacked basic educational qualification.
25. Reliance has also been placed by Mr. Patwalia on Dr. M.S. Mudhol
and Another Vs. S.D. Halegkar and Others [(1993) 3 SCC 591]. Therein a
writ of quo warranto was sought for in a case involving the question as to
whether a degree granted in favour of the appellant therein was equivalent
to another degree or not. It was found that as public interest would not
suffer, a writ of quo warranto may not be issued. The Court, therefore, did
not exercise its discretionary jurisdiction.
26. Yet again reliance has been placed on Santosh Yadav (Smt.) Vs. State
of Haryana and Others [(1996) 9 SCC 320]. Appellant therein was having
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a diploma which was not approved by the State of Haryana and despite the
same, teachers were appointed to meet the State’s educational needs. The
validity of the said degree was not in question. Not only appointments were
made but also appointment to the appellant was offered in 1980. His
services were confirmed in 1984 and sought to be terminated in the year
1990. This Court noticed that a relaxation was granted by the State itself
which was available to her and others similarly situated. She, having
obtained regularisation in her service, it was wrong and arbitrary on the part
of educational department and the school to deprive her of the job. The
same is not the case here.
27. A similar question, on the other hand, came up for consideration
before this Court in Ravinder Sharma (Smt.) and Another Vs. State of
Punjab and Others [(1995) 1 SCC 138] wherein a three Judges’ Bench held;
“12. The appellant was directly appointed. In
such a case, the qualification must be either:
(i) A Graduate/Intermediate second class or,
(ii) Matric first class.
Admittedly, the appellant did not possess this
qualification. That being so, the appointment is
bad. The Commission recommended to the
Government for relaxation of the qualification
under Regulation 7 of the Regulations. The
Government rejected that recommendation.
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Where, therefore, the appointment was clearly
against Regulation 7, it was liable to be set aside.
That being so, no question of estoppel would ever
arise. We respectfully agree with the view taken
by the High Court.”
28. Almost to the same effect is the decision of this Court in Mohd. Sartaj
and Anr. Vs. State of U.P. and Others [JT 2006 (1) SC 331] holding;
“It is settled law that the qualification should have
been seen which the candidate possessed on the date
of recruitment and not at a later stage unless rules to
that regard permit it. The minimum qualification
prescribed under Rule 8 should be fulfilled on the
date of recruitment. Equivalence of degree of
Moallium-e-Urdu, Jamia Urdu Aligarh with that of
B.T.C. in the year 1994 would not entail the benefit
to the appellants on the date they were appointed.
The appellants could not have been appointed to the
post of Asstt. Teachers without having training
required under Rule 8. That being the case, the
appointments of the appellants were de hors the
Rules and could not be treated to be continued. For
the aforesaid reasons, we do not find any substance
in the appeals and are, accordingly, dismissed.”
29. Recently again in Ashok Kumar Sonkar Vs. Union of India and
Others [(2007) 4 SCC 54], it was held;
“16. Indisputably, the appellant herein did not hold
the requisite qualification as on the said cut-of date.
He was, therefore, not eligible therefor.”
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30. Some arguments have also been advanced before us in regard to
applicability of Removal of Difficulties Orders Issued under U.P. Secondary
Education Services Selection Board Act, 1982. The services of the
appellant had been terminated in the year 1997 and the cut off date having
been fixed on 1998, the said act, in our opinion, is not applicable. The
benefits rendered thereunder would not be not applicable in view of the Full
Bench decision of the High Court in Radha Raizada Vs. Committee of
Management, Vidyawati Darbari Girls’ College [1994 All. L.J. 1077] which
has been approved by this Court in Prabhat Kumar Sharma and Others Vs.
State of U.P. and Others [(1996) 10 SCC 62].
32. For the reasons aforementioned, there is no merit in this appeal. The
appeal is dismissed. However, in the facts and circumstances of the case,
there shall be no order as to costs.
………………………..J.
[ S.B. SINHA ]
………………………….J.
[ HARJIT SINGH BEDI ]
New Delhi;
March 7, 2008