39. ... ... It is also now well settled that an appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation. (See State of H.P. Vs. Suresh Kumar Verma
- 1996 (7) SCC 562).
40. It is equally well settled that those who come by back door should go through that door. (See State of U.P. Vs. U.P. State Law Officers Assn - 1994 (2) SCC 204).
.. ..
52. Even recently in Suraj Parkash Gupta Vs. State of J & K - 2000 (7) SCC 561, this Court opined: (SCC p.582, para 28):
"28. The decisions of this Court have recently been requiring strict conformity with the Recruitment Rules for both direct recruits and promotees. The view is that there can be no relaxation of the basic or fundamental rules of recruitment."
(e) AIR 2006 SC 1806 (Secretary, State of Karnataka Vs. Umadevi): "30. In Union Public Service Commission Vs. Girish Jayanti Lal Vaghela and others (2006 (2) SCALE 115 = 2006 AIR SCW 844 - Para 10), this Court answered the question who was a Government servant and stated:
"
Article 16 which finds place in Part III of the Constitution relating to fundamental rights provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The main object of
Article 16 is to create a constitutional right to equality of opportunity and employment in public offices. ... "
(f) W.P.No.211 of 2016, dated 20.07.2016 (Madras High Court) (Deepti Ahuja Vs. The Chief Controlling Revenue Authority-cum-Inspector General of Registration and others):
"17. It is trite to note that an executive or administrative instructions can neither supplement nor override the statutory provision or Rules or Regulations. It is seen from the impugned order passed by the first respondent that reliance was placed on Circular No.18 dated 02.07.2009 and Instruction No.65 dated 27.10.2010 to negate the claim of the petitioner for exemption of stamp duty. When
Section 3(3) of the Indian Stamp Act provides that no duty shall be chargeable in respect of an instrument executed by a Developer or Co-developer in connection with any land or building situated within the SEZ, it cannot be nullified by placing reliance on the Circular issued by the administrators. The respondents ought not to have placed reliance on such Circulars, which have no statutory force. This was the view taken by the Full Bench of the Supreme Court of India in (Union of India and another Vs. Charanjit S.Gill and others) (2000) 5 SCC 742 which was relied on by the learned Senior counsel for the petitioner wherein it was held that administrative instructions issued or the notes attached to the Rules, which are not referable to any statutory authority cannot be permitted to bring about a result which may take away the rights vested in a person governed by the Act."
(g) 1993 Supp (3) SCC 575 (Syed Khalid Rizvi Vs. Union of India): "28. ... So unequals cannot be treated as equals offending Articles 14 and 16(1) of the Constitution. ... ..."
(h) MANU/UP/1877/2004 (Allahabad High Court) (Smt.Rohini Srivastava Vs. Director, Pension Directorate):
"12. It is well settled that when no statutory rules are made regulating recruitment or conditions of service, the State Government always can in exercise of its executive power issue administrative instructions and laid down conditions of service, vide B.N.Nagarajan Vs. State of Mysore MANU/SC/0043/1966 : (1967) I LLJ 698 SC and Sant Ram Sharma v. State of Rajasthan MANU/SC/0330/1967 : (1968) II LLJ 830 SC.
13. New condition of service cannot be brought into effect by an executive order if it is not inconsistent with the rules. (Sitaram Vs. Ramjibhai MANU/SC/0388/1987 : (1987) II LLJ 133 SC). Where there are no statutory rules, appointment to a post can be regulated by executive instructions J & K Public Service Commission v. Narender Mohan AIR 1994 SC 1803, but once rules are made they cannot be bye passed through exercise of executive power.
14. Executive Instructions shall be inoperative if these are contrary to provisions of the statutory rules. Union of India Vs. Shyama Pada Sidhanta MANU/SC/0662/1991 : 1991 (1) SCC 542.
15. The Executive Instructions may be issued to fill up gaps and supplement the rule:- (i) "There can be no quarrel with the proposition that if the statutory rules, framed by the Governor or any law enacted by the State Legislature under
Article 309 is silent on any particular point, the Government can fill up the gap and supplement the rule by issuing administrative instructions not inconsistent with the statutory provisions already framed or enacted. The Executive instruction in order to be valid must run subservient to the statutory provisions." District Registrar, Palghat v. M.B.Koyyakutty AIR 1979 SC 1060. (ii) It is now well- settled law that even if there are no statutory rules in force on a particular subject or even if the rules exist, they are silent on a particular point, it is competent for the Government to fill in the lacuna while making an administrative order. Union of India Vs. H.R.Patankar MANU/SC/0301/1984 : [1985] 1 SCR 400.
16. The departmental instructions are issued only to regulate the rule and not to be inconsistent with the rules, which are valid. R.K.Anand, Lt.General Vs. Union of India MANU/SC/0150/1992 : AIR 1992 SC 763. The 'executive instructions ' can not be issued in the field occupied by laws and rules. The executive power of the State cannot be exercised in the field which is already occupied by the laws made by the legislature. It is settled law that any order, instruction, direction or notification issued in exercise of the executive power of the State which is contrary to any statutory provisions, is without jurisdiction and is a nullity." State of Sikkim Vs. Dorjee Tshering Bhutia AIR 1991 SC 2148, para 15.
17. The executive Power of the State Government under
Article 162 of the Constitution extends to all matters with respect to which the State Legislature has power to make laws and accordingly the State Government can act in exercise of executive power in relation to any matter with respect to which the State Legislature has power to make laws, even if there is no legislation to support such executive action, but such executive section must not infringe the right of any person. If the executive action taken by the State Government encroaches upon any private rights, it would have to support by the legislative authority for under the rule of law which prevails in our country, every executive action which operates to the prejudice of any person must have authority of law to support it. (Raj Sahib Ram Jawaya Kapoor Vs. State of Punjab MANU/SC/0011/1955 : [1955] 2 SCR 225 ; Bernet Coleman and Company Vs. Union of India MANU/SC/0038/1972 : [1973] 2 SCR 757 ; State of Madhya Pradesh Vs. Thakur Bharat Singh AIR 1967 SC 1170, Naraindas Indurkhya Vs. State of M.P. MANU/SC/0066/1974 : [1974] 3 SCR 624 ; Dr.Ram Ji Dwivedi Vs. State of Uttar Pradesh 1982 Lab & 1C 1130 (Alld.) and State of M.P. Vs. Km.Nivedita Jain MANU/SC/0093/1981 : [1982] 1 SCR 759.
25. Executive instructions cannot override modify or amend the rules made under
Article 309 of the Constitution MANU/SC/0500/1970 : (1970) II LLJ 284 SC.
26. There can be no dispute with the proposition that a rule framed under the proviso to
Article 309 of the Constitution cannot be modified by an executive order or instruction. State of Maharashtra Vs. Chandra Kant AIR 1981 SC 990. The Executive instruction cannot override the rules under the proviso to
Article 309 of the Constitution as they are equated with the act of a legislature. Thus an administrative instruction under the proviso to
Article 309 cannot supplement them. Bhagat Singh Vs. Union of India 1981 Lab.I.C 1309 : (1983) 1 SCR 686. If the statutory rules framed by the Governor or any law enacted by the State Legislature under
Article 309, is silent on any particular point, the State Government can fill up that gap and supplement the rule by issuing administrative instructions nor inconsistent with the statutory provisions already framed or enacted.
29. The executive instructions in order to be valid must run subservient to the statutory provisions. District Registrar Vs. M.B.Koyakutty MANU/SC/0043/1966 : (1967) I LLJ 698 SC ; Bishun Deo Mahto Vs. State of Bihar 1982 Lab.I.C. 1446; Sant Ram Vs. State of Rajasthan MANU/SC/0330/1967 : (1968) II LLJ 830 SC ; Union of India Vs. N.R.Sunderam 1982 Lab.I.C. 1185 and Gurdial Singh Fiji Vs. State of Punjab 1979 SCC (L & S) 179.
30. No power to issue executive instructions in the sphere occupied by the statutory rules. In the sphere occupied by a statutory rule, there is no scope for executive or administrative instructions. Chacko Vs. State of Kerala 1974 KLT 215; D.P.Pathak Vs. State of Punjab 1980 Lab.and I.C. 676, P.K.Nambiar Vs. K.P.Gopal Nair 1978 Lab.and I.C. 409.
33. Where no statutory rules are made regulating recruitment or conditions of service, the State Government can, in exercise of its executive power, issue administrative instructions providing for recruitment and conditions of service. B.N. Nagarajan Vs. State of Mysore AIR 1967 SC 1941; Sant Ram Sharma Vs. State of Rajasthan MANU/SC/0330/1967 : AIR 1967 SC 1910; Mallinath Jain Vs. Municipal Corporation 1973 (1) SLR 413; S.B. Pantnayak Vs. State of Orissa 1974 (1) SLR 171; Amerjeet Singh Vs. State of Punjab, 1975 (1) SLR 171; Lalit Mohan Deo Vs. Union of India AIR 1972 SC 1995 : 1989 SLJ (SC) 149 .
35. Administration instruction can be modified by other administrative instructions.- The State Government is competent to amend, alter or modify the service conditions based on administrative instruction, but cannot amend, alter, or modify the service conditions incorporated under statutory rules. Instrument or change should be of the same type as the original instrument governing conditions of service. Dubey Singh Vs. Municipal Council 1977 (2) SLR 677 and D.K. Gupta Vs. Municipal Corporation 1979 (3) SLR 4160.
38. In case of conflict between the rules and the executive order rules would prevail.- Where there is conflict between the provisions of a rules made under proviso to
Article 309 and the Government order made in exercise of the executive power under
Article 162 of the Constitution, the former would prevail over the latter. N.M.Kutty Vs. High Court of Kerala (FB) MANU/KE/0017/1978 : (1978) I LLJ 333 Ker (FB).
39. Executive order cannot override rules framed under
Article 309 - When rules framed under
Article 309 are enforced no regularisation of an appointee is permissible in exercise of the executive power of the State under
Article 162 in contravention of the rules. Any act done in exercise of the executive power cannot overdue the rules framed under
Article 309 of the Constitution. Nagrajan Vs. State of Karnataka MANU/SC/0450/1979 : (1979) II LLJ 209 SC . However, where new posts are created and the same are not covered by the rules, the qualifications etc., in respect of such posts can be laid down through executive instructions, Ajit Kumar Vs. State of Punjab and Haryana 1979 (3) SLR 161."
34. A reading of the dictum laid down in the above judgments would clearly show that when once the statutory Rules have been made, the appointment shall be made only in accordance with the said statutory Rules. Unless some express power is conferred to relax the Rules, the Rules cannot be relaxed. In the instant case, no such power is vested with the Government to relax the Rules. Therefore, in the absence of any specific direction by this Court to relax the Rules as well as in the absence of any vesting of such power to the Government for relaxation of the Rules, the concession given by letter, dated 15.11.2011, is not legally sustainable. We do not find any infirmity in the reasons assigned by the learned single Judge to set aside the provisional selection list.
35. Yet another submission made by the learned Senior Counsel appearing for the appellant is that the first respondent/writ petitioner has not challenged the letter dated 15.11.2011 of the Government, nor the order of this Court dated 15.07.2010 passed in those Writ Petitions. In the absence of any positive direction by this Court to relax the Rules, as observed earlier, absolutely, there is no need for the first respondent/writ petitioner to challenge the said order of this Court, dated 15.07.2010 or the said letter dated 15.11.2011. The rights of the parties have not been adjudicated to challenge the said order, dated 15.07.2010. So far as the said letter dated 15.11.2011 is concerned, we are of the opinion that if the relaxation order is void-ab-initio and also in violation of the fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India, it can be attacked either directly or collaterally, when it is relied upon for enforcement. Furthermore, the relaxation order, vide letter dated 15.11.2011 is only an internal communication and it is only an Executive instruction, and the Executive instructions cannot over-ride statutory Rules when the recruitment Rules framed under
Article 309 of the Constitution of India occupies the field. Therefore, we are of the considered opinion that the Government has no limited power to relax the Rules framed under
Article 309 of the Constitution of India and hence, the said relaxation order is not valid, void and cannot be relied upon by the appellant. In this regard, a reference could be placed to the following decisions:
(a) AIR 1974 SC 1471 (Nawabkhan Vs. State of Gujarat): "6. The constitutional perspective must be clear in unlocking the mystique of 'void' and 'voidable' vis-a-vis orders under the Act. The Act is a constraint on a fundamental right and so the scheme of
Article 19 must be vividly before our minds if extraordinary controls over human rights statutorily vested in administrative tribunals are to be held in constitutional leash. ... ...
10. All these lines of approach have received judicial blessings from the House of Lords to the landmark case of Ridge Vs. Baldwin (1963) 2 All.E.R. 66. The legal choice depends not so much on neat logic but the facts of life -- a pragmatic proposition. Where the law invests an authority with power to affect the behaviour of others what consequence should be visited on abuse or wrong exercise of power is no abstract theory but experience of life and must be solved by practical considerations woven into legal principle. Verbal rubrics like illegal, void, mandatory, jurisdictional, are convenient cloaks but leave the ordinary man, like the petitioner here, puzzled about his remedy. Rubinstein poses the issue clearly:--
"How does the validity or nullity of the decision affect the rights and liabilities of the persons concerned? Can the persons affected by an illegal act ignore and disregard it with impunity? What are the remedies available to the aggrieved parties? When will the courts recognize a right to compensation for damage occasioned by an illegal act? All these questions revert to the one basic issue; has the act concerned ever had an existence or is it merely a nullity?
Voidable acts are those that can be invalidated in certain proceedings; these proceedings are especially formulated for the purpose of directly challenging such acts ...... On the other hand, when an act is not merely voidable but void, it is a nullity and can be disregarded and impeached in any proceedings, before any court or Tribunal and whenever. It is relied upon. In other words, it is subject to 'collateral attack'. "
20. .... But we do hold that an order which is void may be directly and collaterally challenged in legal proceedings. ...."
(b) 1985 (Vol.22) ELT 27 (Mad) (Division Bench of Madras High Court) (Gemini Metal Works Vs. Union of India and others):
"4. The question is, whether the appellant is entitled to attack the validity of the order of cancellation of the licence dated 15-12-1970 collaterally in these proceedings which are directed against the order passed by the first respondent on 13-12-1973. It is well settled by now that an order which is found to be void for violation of the principles of natural justice can be attacked in a collateral proceeding initiated on the basis of such void order. A casual reference to the decision of the Supreme Court in Nawabkhan Abbaskhan Vs. State of Gujarat - AIR 1974 SC 1479-1480, is sufficient to sustain the above proposition. The Supreme Court, while meeting the contention that there should be a direct attack against an order said to violate the principles of natural justice and there cannot be an collateral attack, observed as follows:
"But we do hold that an order which is void may be directly and collaterally challenged in legal proceedings. An order is null and void if the statute clothing the administrative tribunal with power conditions it with the obligation to hear, expressly or by implication. Beyond doubt, an order which infringes a fundamental freedom passed in violation of audi alteram partem rule is a nullity. When a competent Court holds such official act or order invalid, or sets it aside, it operated from nativity, i.e. the impugned act or order was never valid."
36. From the dictum laid down in the decisions cited supra, it could be seen that if the Executive order is voidable, the same can be questioned even in collateral proceedings. Therefore, we do not find any substance in the submission made by the learned Senior Counsel appearing for the appellant that the first respondent/writ petitioner, without challenging the order of this Court, dated 15.07.2010 passed in those Writ Petitions or the letter of the Government, dated 15.11.2011, cannot question the provisional selection list.
37. Further, it is the specific submission made by the learned counsel for the first respondent that the appellant is seeking relaxation of five years teaching experience in recognised TTI/DIET and requesting to permit him to appear in the selection based on five years teaching experience in recognised Schools, as per G.O.(1D).No.15, School Education Department, dated 19.01.2000. Further, the appellant does not even possess such qualification, namely teaching experience of five years in a recognised school at the time of issuance of the Notification/Advertisement, dated 19.08.2006 or at the time of filing of the earlier Writ Petition in the year 2008 in W.P.No.1632 of 2008. The appellant joined as B.T. Assistant only 06.01.2006 and hence, he did not even possess such qualification of five years.
38. The above submission of the learned counsel for the first respondent/writ petitioner is not rebutted by the learned Senior Counsel appearing for the appellant by producing any tangible evidence before this Court. Therefore, we are of the opinion that looking at from any angle, the appellant's claim is not bona-fide.
39. For all the above reasons, we do not find any merit in the Writ Appeal in W.A.(MD).No.1221 of 2016, which is accordingly dismissed. No costs.
40. In view of the dismissal of W.A.(MD).No.1221 of 2016, it is not necessary to entertain C.M.P.(MD).No.11934 of 2016 filed to condone the delay in filing W.A.(MD).SR.No.47454 of 2016. Accordingly, C.M.P.(MD).No.11934 of 2016 is closed and W.A.(MD).SR.No.47454 of 2016 is not entertained. The official respondents are directed to comply with the order of the learned Single Judge within a period of four weeks from the date of receipt of the order.
No costs. Consequently, C.M.P.(MD).No.8106 of 2016 is closed.
To
1. Secretary to Government, School Education Department, Secretariat, Chennai.
2. Teachers Recruitment Board, Represented by its Chairman, 4th Floor, EVK Sampath Maaligai, DPI Compound, College Road, Chetpet, Chennai.
3. The Director of Teacher Education, Research and Training, College Road, Chennai.
.