JUDGMENT R.K. Agrawal, J.
1. All these three special appeals have been filed against the judgment and order dated 1st May, 1998, passed by learned single Judge in Civil Misc. Writ Petition No. 33694 of 1997, whereby the learned single Judge had dismissed the writ petition.
2. Special Appeal No. 386 of 1998, has been filed by Ram Ashish Chaudhary and Siya Ram Yadav, whereas Special Appeal No. 389 of 1998, has been filed by Ram Sewak Warun and Ram Charan Verma and Special Appeal No. 456 of 1998, has been filed by Krishna Chandra Chaudhary against the aforementioned judgment.
3. Briefly stated the facts giving rise to these present special appeals are as follows :
"All the appellants-writ petitioners claimed to have been appointed as teachers in the months of July and August, 1977 in Sri Ram Janki Inter College, Girdharpur, Kungai, district Siddharthnagar (hereinafter referred to as the "Institution") which was at the relevant time, a Junior High School. The Institution was upgraded as High School and thereafter as Intermediate College in November, 1989. It was brought on grant-in-aid in the year 1996. It appears that the District Basic Education Officer granted approval to the appointment of the appellants-writ petitioners some time in the months of January and February, 1984. After its upgradation as High School, the teachers of the Institution including the appellants-writ petitioners were absorbed as teachers of the High School. When the Institution was upgraded to an Intermediate College, the District Inspector of Schools passed an order dated 11.9.1991, absorbing all the teachers working in the Institution, including the appellants-writ petitioners. By an order dated 27.3.1997, the Joint Director of Education granted financial sanction to the teachers and employees of the Institution including the appellants-writ petitioners. It appears that the Committee of Management filed Civil Misc. Writ Petition No. 9942 of 1997 which was disposed of by this Court vide judgment and order dated 20th March, 1997 directing the Director of Education to decide the representation of the Committee of Management within a specified time. The present appellants-writ petitioners filed Special Appeal No. 193 of 1997, which was disposed of vide judgment and order dated 8th April, 1997, with certain directions regarding payment of salary to the appellants. Pursuant to the said directions given by this Court, the Director of Education passed an order on 7.7.1997, holding that the appellants-writ petitioners were not entitled for payment of salary. Feeling aggrieved, the appellants-writ petitioners jointly challenged the order dated 7.7.1997 by filing Civil Misc. Writ Petition No. 33694 of 1997 which was dismissed by the learned single Judge vide judgment and order dated 1st May, 1998. The judgment and order dated 1st May, 1998, is under challenge in these special appeals. "
4. We have heard Sri R.N. Singh and Dr. R.G. Padia, learned senior advocates for the appellants-writ petitioners and Sri Sabhajeet Yadav, learned standing counsel and Sri A.K. Gupta, learned advocate for the respondents.
5. Sri R.N. Singh, learned senior counsel submitted, that the District Basic Education Officer had approved the list of teachers including the present appellants-writ petitioners vide order dated 6th February, 1984, which is still in existence and has not been cancelled or revoked so far. He further submitted that after the Institution was upgraded to the High School and thereafter to the Intermediate College, the District Inspector of Schools vide order dated 11th September, 1991 had absorbed all the teachers working in the Institution including the appellants-writ petitioners which order is still in existence and has not yet been cancelled or revoked. Thus, It is not open to question the appointment of the appellants-writ petitioners. He further submitted that initial defect in the appointment of the appellants-writ petitioners, if any, stood cured by subsequent orders passed by the District Basic Education Officer and District Inspector of Schools. According to him, when the appellants-writ petitioners were appointed in the year 1977, there was no Rule governing the service conditions of teachers and employees working in the Junior High Schools and for the first time, the Rules were framed in February, 1978. His further submission was that even after coming into force of 1978 Rules, the question of their appointments were considered by the District Basic Education Officer who granted approval vide order dated 6th February, 1984. Further, when the Institution was brought under grant-in-aid list, the District Inspector of Schools had also approved the absorption of the teachers and employees including the appellants-writ petitioners vide order dated 11th September, 1991. Thus, the appellants-writ petitioners get the status of teachers of High School from 11th September, 1991, on which date, admittedly, they were major and fully qualified. He further submitted that if It is held that they are not entitled for payment of salary after such a long period, it would be too harsh as they have been working on their respective posts for the last more than 23 years. He relied upon the decision of the Hon'ble Supreme Court in Dr. M.S. Mudhol and Anr. v. Shri S.D. Halegkar and Ors., JT 1993 (4) SC 143, wherein it has been held that where there is nothing on record to show that the person has projected his qualifications other than what he possessed, the selection committee, for some reason or the other, had thought it fit to choose him for the post, it would be inequitous to make him suffer for the same now. He also relied upon a Division Bench decision of this Court rendered in the case of Gaya Prasad Srivastava v. High Court of Judicature at Allahabad and Ors., 1998 (3) AWC 1872 : (1998) 2 UPLBEC 1237, wherein it has been held that the competent authority while appointing some one initially must have taken into consideration in the normal course of human business the exigencies of service to employ him at 16 years of age or so, otherwise by act and conduct the age is deemed to have been relaxed. He further submitted that even if the order of appointment, which has been approved by District Basic Education Officer and District Inspector of Schools, is said to be illegal or void, it requires cancellation and till such time it is not cancelled, full effect is to be given. He relied upon a decision of the Hon'ble Supreme Court in State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (Dead) and Ors., JT 1995 (8) SC 533, wherein it has been held that even a void order or decision rendered between parties cannot be said to be non-existent in all cases and in all situations. Ordinarily, such orders will, in fact, be effective inter partes until it is successfully challenged in higher forum. Mere use of the word "void" is not determinative of its legal impact. The word "void" has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. There are degrees of invalidity, depending upon the gravity of the infirmity, as to whether it is, fundamental or otherwise.
6. Dr. R.G. Padia, learned senior advocate has adopted the arguments of Sri R.N. Singh, learned senior counsel.
7. Sri Sabhajeet Yadav, learned standing counsel submitted that it is not in dispute that on the date when the appellants-writ petitioners were appointed, they were about 14 to 17 years of age. Thus, they could not have been appointed as assistant teachers for teaching the students in the Institution in Junior High School. Their appointments were made in July, 1977 and August, 1977, which appears to be ante dated orders, as the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978, (hereinafter referred to as the 1978 Rules) were enforced on 13th February, 1978, which prescribe for minimum qualification and also the age limit. Thus, he submitted that subsequent approval of the District Basic Education Officer and District Inspector of Schools would not be of any assistance to the appellants-writ petitioners. He further submitted that if a person, on the date of his appointment, did not possess minimum qualification and also the minimum age, as prescribed under the 1978 Rules, the appointment even if made, would be of no consequence.
8. Learned standing counsel relied upon a decision of the Supreme Court rendered in District Collector and Chairman. Vizianagaram Social Welfare Residential School Society, Vizianagaram and Anr. v. M. Tripura Sundari Devi, (1990) 3 SCC 655, wherein it has been held that even if an unqualified person has been appointed, by mistake, it amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No Court should be a party to the perpetuation of the fraudulent practice. He further submitted that if by fraudulent act the appellants-writ petitioners have been able to obtain appointment that would not justify their claim for getting salary from the State exchequer.
9. Having heard learned counsel for the parties, we find that it is not in dispute that all the appellants-writ petitioners, when they were appointed in the month of July and August, 1977, were in between the age of 14 to 17 years. The Institution was a private institution. The service Rules were enforced on 13th February, 1978, which provided the minimum qualifications and the minimum age limit and also for constitution of a Selection Committee. The Institution remained unaided till 1996, i.e., for a period of more than 17 years from the date of appointment of the appellants-writ petitioner. The District Basic Education Officer has approved the appointment of the appellants-writ petitioners without going into the question as to whether they were major or not on the date of appointment. Likewise, the District Inspector of Schools also did not go into the question about the minimum qualifications required at the time of appointment. Thus, no advantage can be derived from the order of District Basic Education Officer and District Inspector of Schools that they had approved their absorption. It may be mentioned here that at the time of appointment Ram Sewak Warun and Siya Ram Yadav were Intermediate, whereas Ram Charan Verma and Krishna Chandra Chaudhary were High School and Ram Ashish Chaudhary was only Junior High School, i.e., Class VIII. It may also be mentioned here that they were all in between the age of 14 to 17 years. It may be mentioned that the appointment on the post of teacher is a contract between the Committee of Management and the person so appointed. Any contract can be entered into only by a contracting party who is major and no contract can be entered into by a minor. However, any person can act on behalf of the minor. A contract entered into by a minor is a void contract in terms of Section 11 of the Indian Contract Act, 1872. In Ma Hnit and Ors. v. Hashim Ebrahim Metev and Anr., AIR 1919 PC 129, it has been held that a contract by minor is void and not merely voidable. Thus, the appointment of the appellants-writ petitioners was void ab initio. The decision relied upon by the learned advocate for the writ petitioners that if the appellants-writ petitioners have been working for long years and have acquired the qualifications subsequently, would not be applicable in the present case, inasmuch as, at the time of initial appointment they were not major and there was no provision for relaxing the age.
10. On the facts and in the circumstances of the case, in our view, the learned single Judge has rightly held that the appointment of the writ petitioners was illegally made.
11. In view of the foregoing discussions, we do not find any merit in these special appeals. The special appeals fail and are dismissed with costs.