The Kisan Rashtriya Junior High School Gohanna, District Ambedkarnagar/Faizabad is a Junior High School recognized and under the grant-in-aid. The provisions of U.P. Recognized Basic Schools (Junior High Schools Recruitment and Condition of Service) Rules 1978 are applicable for appointment and other service conditions of assistant teachers.
The Committee of Management published an advertisement on 22.12.1995 in local newspaper for appointment of two assistant teachers. The petitioners along with others applied and the Selection Committee recommended the petitioners for appointment on the post of assistant teachers on 13.1.1995. The District Basic Education Officer Faizabad (herein after referred to as BSA) vide orders dated 12.12.1995 granted approval to the petitioners and accordingly appointment letters was issued by the Committee of Management and on 13.12.1995 the petitioners resumed their duties and are working since then.
The Committee of Management has filed counter affidavit and they support the petitioners' case and further, it has been stated, that on 7.12.1988 two additional sections in Class VI and VII was permitted by the B.S.A. and the strength for assistant teachers, on account of additional sections, was enhanced from 5 to 7 as the criteria for teacher per section is 1.5 teachers. The petitioner was appointed in anticipation of approval of the additional posts.
The BSA has filed counter affidavit and does not dispute the factual matrix, however, states that the appointment of the petitioner was against sanctioned post and no additional teachers was sanctioned for the additional sections of Class VI and VII. The appointments are not against sanctioned post and hence the State is not liable to bear their salary, it is open for the petitioners to claim the salary from the Committee of Management. It is further stated that the Institution came in grant-in-aid on 1.4.1996 and the names of the petitioners was not included in the Manager Report (MR). Approval of five assistant teachers was accordingly granted.
In supplementary counter affidavit it has been stated that the petitioners are not qualified under Rule 4 of the 1978 Rules as they do not possess training certificate and the appointment is void ab initio.
The petitioners have approached this Court, seeking writ of mandamus commanding opposite parties to make payment of salary for the post of assistant teachers with all consequential benefits as well as arrears of salary from 13.12.1995. This Court vide interim order dated 21.4.2005 directed the respondents to pay the salary of the petitioners from the current month i.e. April, 2005 and continue to pay the same till duly selected candidates are recommended by the Selection Board.
Learned counsel for the petitioner has submitted that the petitioners are continuing for the past 20 years and are being paid their salary on the strength of interim order of this Court and after putting in long period of service, it cannot be said, that they are not qualified or the posts was not sanctioned. More so when the BSA has already granted approval. Dismissal of the writ petition at this stage would cause irreparable loss and injury as the petitioners will have no alternative mode to earn their livelihood. The petitioners fulfilled the qualification as was advertised by the Committee of Management i.e. they had B.Ed. Degree but did not possess B.T.C. and training certificates, as required under the Rules.
The learned counsel appearing for the B.S.A. submits that advertisement must indicate the qualifications prescribed under the rules, in case, the petitioners are not qualified, there is no legal obligation upon the State, to bear the expenses, admittedly the qualifications as prescribed under Rule 4 is not possessed by the petitioners. Non possession of qualification is an illegality and not an irregularity, it cannot be cured. Long continuation in service is no ground to uphold any illegal appointment as that would infringe Article 14 and 16 of the Constitution of India.
Rival submissions fall for consideration.
The factual matrix between the parties is not in dispute. The petitioners were appointed before the institution came in grant-in-aid i.e. 1996. The Committee of Management published an advertisement, which contained qualifications, which was in teeth of the statutory Rule 4. The petitioners have B.Ed. degree but do not possess any training certificate, which is an essential minimum qualification. The approval was granted by the BSA for enhancing the sections but there was no sanction enhancing the strength of Assistant Teachers and in anticipation of sanction the petitioners were appointed by the Committee of Management.
The name of the petitioners was not sent in the Manager Report (MR) and only name of five teachers was sent who were working in the institution against sanctioned posts and were qualified. Non possession of qualifications, as well as, appointments made against non sanctioned posts cannot create any legal right. In order to issue a writ of mandamus the petitioner will have to demonstrate that there is a legal obligation upon the authorities to act and the petitioners have a legal right for holding the post. The doctrine of legitimate expectation cannot operate against statutory provision.
The point regarding non possession of qualifications cannot detain the Court much long as the Full Bench of this Court in Ram Surat Yadav vs. State of U.P. and others [(2014) 1 UPLBEC 1)] held that requirement of B.T.C. is must, an applicant not having such training certificate cannot be appointed, because once eligibility requirement is prescribed for selection by statutory rules, person who does not fulfill that requirement has no legitimate entitlement to claim appointment and even if he is selected his selection would be contrary to law.
This Court in Mohd. Iliyas vs. District Inspector of Schools [(2009 (3) ALJ 393)] relying upon the Full Bench decision in Gopal Dubey vs. D.I.O.S. Maharajganj and another in 1999 Vol.1 UPLBEC page-1: (1999 All LJ 454) held that without formal creation of post, merely by permission to open a section to teach a particular subject will not mean that a post has been sanctioned, it is incumbent that person claiming salary from public fund must be appointed on a validly created and sanctioned post.
The Supreme Court in Yogesh Kumar vs. Government of NCT Delhi and others (2003) 3 SCC 548 held that appointment has to be strictly as per statutory rules. A person not possessing requisite qualification and appointment made dehors of the rules without following procedure, the appointment is illegal since inception, nonest, nullity and no legal right to continue or right over the post and length of continuous service of such illegal appointment will not help the petitioner.
Vide State of Orissa vs. Mamta Mohanti (2011) 3 SCC 436 and Committee of Management vs. State of U.P. (2009) 2 ALJ 528, qualification has to be seen at the time of recruitment and lack of essential qualification; appointment and continuing for long period, on the strength of interim orders, will be of no help.
Vide Mohd. Sartaj vs. State of U.P. (2006) 2 SCC 315, Sushil Kumar Dwivedi vs. Basic Shiksha Adhikari, Banda (DB) (2003) 2 UPLBEC 1216, in Mamta Mohanti case (supra) and Mohd. Sartaj case (Supra), Committee of Management vs. State of U.P. (DB) (2009) 2 ALJ 528 it was held that in case, approval is granted by the authority to a person who lacks qualification then it is a serious lapse on the part of the authority, justifying suitable disciplinary action against such careless and negligent authorities. Illegal appointments cannot be regularized. There is a distinction between irregularity and illegality. Irregularity can be regularized but not illegality.
In State of Karnataka vs. KGSD Canteen Employees Welfare Ass. (2006) 1 SCC 567, Mamta Mohanty case (Supra) and Sushil Kumar Dwivedi case (Supra) it was held that any action of an officer or authority of the State which is contrary to law, as in the facts of the present case approval granted by the B.S.A. in spite of the fact that the petitioners were not qualified and there was no sanctioned posts, such approval cannot bind the State to pay the salary from the State Exchequer (refer; State of Manipur vs. Y Token Singh (2007) 5 SCC 65).
In Pramod Kumar vs. U.P. Secondary Education Services Commission and others (2008) 7 SCC 153 Supreme Court held mandamus can be sought when there is a legal right and corresponding duty upon the State Agency. Petitioners who did not possess valid degree held had no right to appointment and, therefore, could not seek mandamus.
In Regional Manager, Central Bank of India vs. Madhulika Guruprasad Dahir and others (2008) 13 SCC 170 Supreme Court held that a person appointed against a reserved post for S.T. against forged social status certificate cannot upon termination claim to be retained merely on the ground that he has worked for over 20 years.
The petitioners have relied upon the following cases. In Buddhi Nath Chaudhary and others vs. Abahi Kumar and others (2001) 3 SCC 328, the Supreme Court held that improper appointment made which had continued for long cannot be disturbed and lack of experience at the time of recruitment made long back, such selections need not be disturbed. Supreme Court considering the facts and circumstances of the case passed the order not interfering with the appointments on "extended equitable considerations" and on "special facts of the case". The case will not help the petitioners as the order has been passed under Article 142.
In Ashok Kumar Sharma vs. Chandra Shekhar and another 1993 Supp 2 SCC 611 the Supreme Court was of the view that appointments continuing for more than ten years should not be interfered as it would be unreasonable. The direction is under Article 142.
In Dr. M.S. Mudhol vs. S.D. Halegkar and others (1993) 3 SCC 591 the Supreme Court held that appointment to the post of Principal of Higher Secondary may against the prescribed qualifications the Supreme Court held that when despite disclosing the qualification possessed by the respondent Selection Committee wrongly selected him and Director of Education acquiesced in the appointment thereafter the respondents continued on the post for 9 years, his appointment need not be disturbed at this late stage. The Apex Court was of the view that infraction of the statutory rules regarding qualification in the facts of the case was not grave and therefore, the Court refused to go into the question. In paragraph 8 the Supreme Court quashed the appointment of first respondent as the Director of Education had committed error of law in approving his academic qualifications when he was not qualified. This judgment does not help the petitioners, rather it is against him.
In H.C. Puttaswamy vs. The Hon'ble Chief Justice of Karnataka High Court, Bangalore and others 1991 Supp 2 SCC 421 Supreme Court held that in the facts of the case, the appointments made by the Chief Justice in Subordinate Courts without consulting the Public Service Commission and bye passing the District Judge was improper, however, the Apex Court reached the conclusion about the invalidity of the impugned appointments made by the Chief Justice but recognizing the consequence that involves in uprooting the bye laws while highlighting the human problems involved and considering the fact that they put in 10 years of service, interfered on humanitarian approach and on the grounds of mercy.
The case of Lal Bahadur Shastri Smarak Junior High School and another vs. State of U.P. and others (2009) 2 UPLBEC 1840 is the case where the application of the Management for additional posts in the context of additional sections was rejected by the High Court. The Supreme Court held that the Management had a right to claim for additional post of teachers for the additional sections sanctioned as that would be against the maintenance of proper standards of teaching in educational institutions. This judgment also does not help the petitioners as the Committee of Management has not approached this Court seeking sanction of the strength of teachers but it is the petitioners who have approached this Court for salary.
In Dr. Asha Saxena vs. Smt. S.K. Chaudhary and other (1991) 2 UPLBEC 1202 the Full Bench considering the regulations regarding questioning the seniority of teachers held that challenging the seniority list prepared 15 years ago was not proper as it had attained finality. This case pertains to seniority and the facts are not applicable in the present case which deals with lack of qualifications and appointments made on the posts which were not sanctioned.
The cases cited by the learned counsel for the petitioner are judgments confined to the facts of that case, and orders have been passed mostly under Article 142. The Supreme Court in Kendriya Vidyalaya Sangthan and another vs. L.V. Subramanyeswara Another held that teachers who were appointed on adhoc basis and have continued in service for more than 10 years on the strength of interim orders of the various Courts, cannot be regularized. The argument advanced before the Supreme Court was, that since they have continued for so long and are qualified, their services be regularized. The Supreme Court rejected the plea that the teachers cannot be thrust upon the appellant by reason of interim orders. The Supreme Court relying upon State of Mysore v. S. V. Narayanappa AIR 1967 SC 1071, held that it was a misconception to consider that regularization meant permanence. If the appointment itself is infraction of the Rules or if it is in violation of the provisions of Constitution, illegality cannot be regularized. Rectification or regularization is possible by act which is within the power and province of the authority. To acceed to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules. (Refer:- R. N. NANJUNDAPPA vs. T. THIMMIAH & ANR. (1972) 1 SCC 409, B.N. Nagarjun Vs. State of Karnataka (1979) 4 SCC 509, Secretary State of Karnataka vs. Uma Devi (3) (2006) 4 SCC 1).
In Uma Devi (3) case the Court in paragraph 54 clarified that "those decisions which run counter to the principle settled in this decision, or in which direction running counter to what we have held herein, will stand denuded of their status as precedent".
In the facts of this case, the respondents do not satisfy any of the tests as admittedly they are unqualified and their appointment is void ab initio. Reliance placed on paragraph 53 of Uma Devi (3) case is also misplaced. The petitioners did not complete the period of over 10 years, without intervention by the Court, they would not have been in service for such a long period but for intervention of this Court, they had been continued in service in terms of the interim order passed by this Court.
Applying the law as stated, herein above, on the facts of the present case, that, since the petitioners did not possess the minimum educational qualification at the time of selection, their appointments are nullity in the eyes of law and void ab initio. Admittedly they were not appointed against sanctioned strength of assistant teacher, therefore, they cannot claim continuance in service and payment of salary from the State exchequer. The approval accorded by the B.S.A., is non est, he could not have granted approval to appointments that was, admittedly, made against the Rules. The BSA has exposed himself to disciplinary action. The Committee of Management notifying qualifications, which are not as per Rules, and appointing persons as Assistant Teachers who admittedly did not fulfill the qualifications, have exposed themselves for penal consequence.
It is settled principle that no one can take advantage of an interim order and retain the benefits, which they otherwise are not entitled under the law. This Court was mislead both by the Committee of Management as well as the BSA, the Committee of Management appointed persons who were not qualified by issuing advertisements, which did not publish the qualification, as prescribed under the Rules. The Basic Shiksha Adhikari granted wrong approval to such appointments by order dated 12.12.1995. But for this illegality, the High Court would not have passed the interim order.
The salary paid to the petitioners on the strength of interim orders shall be recovered from the Committee of Management, Kishan Rastriya Junior High School, Gohanna District Ambedkar Nagar/Faizabad, respondent no. 5, as well as, from the then Basic Shiksha Adhikari, District Ambedkar Nagar/Faizabad, respondent no. 4, in equal parts, within a period of three months from the date of filing of certified copy of this order.
For the facts and reasons stated herein above, the writ petition is devoid of merit and is, accordingly, dismissed.
Copy of this order shall be handed over to the learned Chief Standing Counsel, Government of Uttar Pradesh, by the Registry, for onward transmission to respondent no. 1, Principal Secretary, Basic Education, Uttar Pradesh, Lucknow for compliance and the report shall be submitted to the Registrar of the High Court Allahabad, Lucknow Bench, Lucknow.
Order Date :- 31.03.2014 S.Prakash