P.A.Ts. TO BE TERMINATED AND PHASED OUT WTHIN 6 MONTHS IN HP- A VERDICT BY H.P. HIGH COURT –...

7/31/2019 P.A.Ts. TO BE TERMINATED AND PHASED OUT WTHIN 6 MONTHS IN HP- A VERDICT BY H.P. HIGH COURT UPLOAD

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

C.W.P. No. : 3303 of 2012-A

Reserved on : 12.10.2012

Decided on : 18.10.2012

_____________________________________________________

1. Chander Mohan Negi, S/o Shri Kamla Nand, R/o Villageand Post Office, Sangla, District Kinnaur, H.P.

2. Rajiv Chauhan, S/o Shri Noor Chand Chauhan, R/oVillage Chanthawa, Post Office Tandi, Tehsil Ani, DistrictKullu, H.P.

3. Rakesh Kumar, S/o Shri Sham Lal, R/o Village BasowalSultani, Post Office Baruna, Tehsil Nalagarh, DistrictSolan, H.P.

..Petitioners.-Versus-

1. State of Himachal Pradesh through Secretary Education tothe Government of Himachal Pradesh, Shimla.

2. Director, Elementary Education, Himachal Pradesh,Shimla.

3. Himachal Pradesh Primary Assistant Teachers Associationthrough its President Shri Surinder Thakur, R/o Villageand Post Office, Sujanpur Tehara, District Hamirpur, H.P.

..Respondents.......

Civil Writ Petition under Article 226 ofthe Constitution of India.

Coram:The Honble Mr. Justice Rajiv Sharma, Judge.Whether approved for reporting?1 Yes.__________________________________________________________For the petitioners : Ms. Ranjana Parmar, Advocate.For respondentsNo. 1 and 2 : Mr. Vikas Rathore, Deputy Advocate

General.

For respondent No. 3 : Mr. Kush Sharma, Advocate.---------------------------------------------------------------------------------------Rajiv Sharma, Judge:

Petitioners have undertaken Junior Basic Teacher

training from Government DIETs in the academic Session 2008-

1Whether the reporters of the local papers may be allowed to see the judgment? Yes.


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2010. Case of the petitioners, in a nutshell, is that the

respondent-State has appointed Primary Assistant Teachers

against the post(s) of JBTs. According to the petitioners, the

persons, who were appointed as Primary Assistant Teachers, even

do not possess the minimum essential qualification of JBT.

According to the petitioners, there are about 1461 candidates,

who have undertaken JBT training from DIETs and 800

candidates have undertaken their JBT training from private

institutions affiliated to the Himachal Pradesh Board of

Education.

2. Case of the respondent-State is that the Primary

Assistant Teachers were appointed, since the eligible/qualified

candidates were not ready and willing to serve in tribal/hard

areas. Further case of the respondent-State is that the Primary

Assistant Teachers are serving for the last 8-9 years and if they

are disengaged, it would result in social disorder and they can also

not to be kept as temporary teachers for an indefinite period,

which according to the State, would amount to exploitation.

3. The respondent No. 3 has also filed reply. According

to respondent No. 3, there are about 3482 teachers appointed

under The Himachal Pradesh Prathmic Sahayak

Adhyapak/Primary Assistant Teacher (PAT) Scheme 2003. The

State Government has also regularized 1400 teachers appointed in

the year 2001 under the The Himachal Pradesh Gram Vidya

Upasak Yojna 2001. It is also averred that the petition is pre-

mature. According to respondent No. 3, the petitioners have


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qualified their JBT courses in the year 2011 and have no

legitimate right to be appointed against these posts. The

recruitment of JBT teachers is governed under the rules called the

Himachal Pradesh, Primary Education Department, Junior Basic

Trained Teacher, Class-III (Non-Gazetted) Recruitment and

Promotion Rules, 2000. These Rules were notified on 22nd August,

2000. The total cadre strength of JBT teachers is 31952. The

minimum essential qualification for filling up the post of JBT

teacher is that the candidate should be 10+2 with 50% marks

from a recognized Board of School Education/University and

should possess two years JBT certificate course from an

Institution duly recognized by the Central/State Govt.

4. The Parliament has enacted an Act called The Right

of Children to Free and Compulsory Education Act, 2009

(hereinafter referred to as the Act for short). It was notified on

27th August, 2009. According to Section 23 of the Act, any person

possessing such minimum qualifications, as laid down by an

academic authority, authorized by the Central Government by

notification, shall be eligible for appointment as a teacher. The

National Council for Teacher Education has notified the minimum

qualifications for teachers for classes I to V on 23.08.2010.

According to notification, dated 23rd August, 2010, the minimum

qualification for appointment of teachers for classes I to V is

Senior Secondary (or its equivalent) with at least 50% marks and 2

years diploma in Elementary Education (by whatever name

known) or Senior Secondary (or its equivalent) with at least 45%

marks and 2 years diploma in Elementary Education (by whatever

name known), in accordance with the NCTE (Recognition Norms


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and Procedure) Regulations 2002 or Senior Secondary (or its

equivalent) with at least 50% marks and 4 years Bachelor of

Elementary Education (B.EI.Ed.) or Senior Secondary (or its

equivalent) with at least 50% marks and 2 year diploma in

Education (Special Education) and the candidate must pass in the

Teacher Eligibility Test (TET), to be conducted by the appropriate

Government in accordance with the Guidelines framed by the

NCTE for the purpose. It is, thus, evident that the candidates, who

are to be appointed as JBT teachers, must possess minimum

essential qualification prescribed under the Rules notified on 22nd

August, 2000 read with notification, dated 23rd August, 2010 and

they must qualify the TET.

5. Now, as far as the Primary Assistant Teachers are

concerned, they are recruited under the Scheme called The

Himachal Pradesh Prathmik Sahayak Adhyapak/Primary

Assistant Teacher (PAT) Scheme, 2003, notified on 27th August,

2003. The method of recruitment and conditions of service are

regulated under Clause-5 of the Scheme. According to Clause-5(a)

of the Scheme, Primary Assistant Teacher (PAT) are to be

appointed by the respective Gram Panchayats of the area in which

the Primary School is located. The actual number of Prathmik

Sahayak Adhyapak/Primary Assistant Teacher (PAT) are to be

appointed as and when required and it is to be calculated on the

basis of approved Pupil : Teacher ratio/norms, School and Gram

Panchayat wise, with first preference to without teacher/single

teacher schools, followed by the recruitment of Prathmic Sahayak,

Adhyapak/Primary Assistant Teacher (PAT) in consonance with

the approved Pupil : Teacher ratio (PTR) in other schools also. The


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Prathmik Sahayak Adhyak/Primary Assistant Teacher (PAT) are to

be initially recruited as per Sub-clause (d) of Clause-5 of the

Scheme for a period of one academic session, by the respective

Gram Panchayats of the area in which the Primary School is

located, after observing the procedure laid down in Annexure-I of

the Scheme. The Prathmik Sahayak Adhyapak / Primary

Assistant Teachers (PAT) are the employees of the Gram

Panchayats for all intents and purposes and they cannot claim

regularization/absorption into Government job as per Sub-clause

(e) of Clause-5 of the Scheme. According to Sub-clause (f) of

Clause-5 of the Scheme, the services of Primary Assistant

Teachers are to be utilized by the Gram Panchayats in the

Government Primary Schools, against vacancies separately

allocated for the purpose. The contract is to be ordinarily renewed

by the concerned Gram Panchayat for further period, unless

withheld for the reasons to be recorded in writing in accordance

with the conditions of the Scheme as per Sub-clause (g) of Clause

-5 of the Scheme. As per Sub-clause (h) of the Scheme, the

appointment of Primary Assistant Teachers are made subject to

the orders of the Gram Panchayat and of the officers and the

authorities under whom he/she may from time to time to be

placed by the Gram Panchayat and shall abide by the instructions

issued by the Gram Panchayat and the Primary Education

Department from time to time. The manner in which the services

of the Primary Assistant Teachers can be terminated is provided

under Sub-clause (j) of Clause-5 of the Scheme. The minimum

essential qualification prescribed for the post of Prathmik Sahayak

Adhyapak/Primary Assistant Teacher (PAT) is pass in 10+2


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examination from a Board or University duly recognized by the

H.P. Government. The candidates with higher academic

qualification are also eligible to apply. The candidates with

professional qualifications in the field of education are to be

preferred. The candidates to be appointed as Primary Assistant

Teacher (PAT) are paid honorarium @ `2000/- per month for a

period of ten months and the Primary Assistant Teachers,

possessing the professional qualifications in the field of education

of at least one year duration are to be paid honorarium @`2500/-

per month for ten months in an academic year. The appointing

and punishing authority of the Primary Assistant Teachers as per

Clause-9 of the Scheme is the Gram Panchayat. The selection

process is to be regulated as per Annexure I filed with the

Scheme. It is made clear by Clause-12 of the Scheme that the

candidates appointed as Prathmik Sahayak Adhyapak/Primary

Assistant Teacher (PAT) under the Scheme, by the respective

Gram Panchayats of the area in which the primary school is

located, shall have no right to claim regularization/absorption

appointment in the JBT cadres of the State Government.

6. According to Annexure-1 of the Scheme, the

concerned Block Primary Education Officer is required to identify

the schools and vacancies in accordance with the approved Pupil:

Teacher ratio/norms and the first preference is to be given to

without teacher/single teacher schools. The Block Primary

education Officer after obtaining the prior permission for

recruitment of Prathmik Sahayak Adhyapak/Primary assistant

Teacher (PAT) has to notify the approved number of vacancies and


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copies of the notice are to be displayed on the Notice Board and

are sent to the concerned Gram Panchayats as well as to the Sub

Divisional Officer (Civil), Tehsildar and BDO. The selection

Committee comprises of S.D.O. (Civil) of the concerned Sub

division as Chairman, The Pradhan, Gram Panchayat concerned

as Member, Centre Head Teacher of concerned Center as Member.

The Block Primary Education Officer of the concerned Block is the

Member Secretary. According to Clause-6 of Annexure-1, the

candidates with requisite educational qualifications and age are

eligible to apply. However, the preference is to be given to the

candidates belonging to the same Panchayat for which the

vacancy has been notified, failing which the candidates belonging

to adjoining Panchayats are to be considered and so on till

suitable candidates becomes available. The selection criteria is

provided under item No. 8 of Annexure-1. The appointment of

Primary Assistant Teacher is to be made on contractual basis by

the Pradhan, Gram Panchayat. Petitioner has also sought

information under the Right to Information Act. According to the

information supplied to the petitioners, 156 posts have been filled

up in District Bilaspur by appointing Primary Assistant Teachers,

27 posts have been filled up by appointing PATs. in District

Kinnaur, 230 posts in District Kullu, 293 in Una, 919 in Kangra,

36 in Lahaul & Spiti, 83 in Hamirpur, 193 in Solan and 471 in

Mandi. These appointments have been made against the posts of

JBTs. Similarly, these appointments have been made in District

Chamba, Shimla and Sirmaur.

7. According to the reply filed by respondent No. 3, 3482

candidates have been appointed as Primary Assistant Teachers. It


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is evident from a bare reading of notification, dated 27th August,

2003 that the Primary Assistant teachers, who have been

appointed against the posts of JBTs. by the Gram Panchayat, are

not qualified as per the Recruitment and Promotion Rules, notified

on 22nd August, 2000. The minimum essential qualification for

filling up the post of Primary Assistant Teacher is 10+2 without

any percentage. The appointments of these teachers are to be

made by the concerned Gram Panchayats. The Primary Assistant

Teachers are the employees of the Gram Panchayats. They are

paid the honorarium by the Gram Panchayats on the basis of the

grant-in-aid received by the Gram Panchayat from the appointing

and managing authority. Even, the Pradhan, Gram Panchayat has

been made the Member of the Selection Committee, besides the

Center Head Teacher of concerned Center as Member, the Block

Primary Education Officer of the concerned Block as Member

Secretary and the S.D.O. (Civil) of the concerned Sub-division as a

Chairman. The eligibility for applications as per item No. 6 of

Annexure-1 annexed with the Scheme. According to which, the

first preference is to be given to the candidates belonging to the

same Panchayat, for which the vacancy has been notified, failing

which the candidates belonging to adjoining Panchayats are to be

considered. There cannot be any appointment to public office on

the basis of residence in a particular Gram Panchayat. The

appointment on the basis of residence can only be made on the

basis of law enacted under Article 16(3) of the Constitution of

India by the Parliament.

8. Their Lordships of the Honble Supreme Court in

A.V.S. Narasimha Rao and others Vs. The State of Andhra


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Pradesh and another AIR 1970 Supreme Court 422 have

categorically held that the legislative power to create residential

qualification for employment is exclusively conferred on

Parliament. The Parliament can make any law which prescribes

any requirement as to residence within the State or Union

Territory. Their Lordships have also held that the word State is to

be understood in the extended sense given to it by the definition of

that word in Article 12. Their Lordships have held as under:

5. The question is one of construction of this

article, particularly of the first three clauses, to find out

the ambit of the law-making power of Parliament. The

first clause emphasis that there shall be in India

equality of opportunity for all citizens in matters of

employment or appointment to any office under the

State. The word 'State' here is to be understood in the

extended sense given to it by the definition of that word

in Article 12. The second clause then specifies

prohibition against discrimination only on the grounds

of religion, race, sex, descent, place of birth, residence

or any of them. The intention here is to make every

office or employment open and available to every

citizen, and inter alia to make offices or employment in

one part of India open to citizens in all other parts of

India. The third clause then makes an exception. This

clause was amended by the Constitution (Seventh

Amendment) Act, 1956. For the original words of the

clause under any State specified in the first Schedule

or any local or other authority within its territory any

requirement as to residence within that State', the

present words from 'under the Government' to 'Union

territory' have been substituted. Nothing turns upon the

amendment which seeks to apply the exception in the

clause to Union Territory and to remove ambiguity in

language.


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6. The clause thus enables Parliament to

make a law in a special case prescribing any

requirement as to residence within a State or Union

Territory prior to appointment, as a condition of

employment in the State or Union territory. Under

Article 35 (a) this power is conferred upon Parliament

but is denied to the Legislatures of the States,

notwithstanding anything in the Constitution, and

under (b) any law in force immediately before the

commencement of the Constitution in respect of the

matter shall subject to the terms thereof and subject

to such adaptations that may be made under Article

372 is to continue in force until altered or repealed or

amended by Parliament.

10. The claim for supremacy of Parliament is

misconceived. Parliament, in this, as in other matters,

is supreme only in so far as the Constitution makesit. Where the Constitution does not concede

supremacy, Parliament must act within its appointed

functions and not transgress them. What the

Constitution says is a matter for construction of the

language of the Constitution. Which is the proper

construction of the two suggested? By the first clause

equality of opportunity in employment or appointment

to an office is guaranteed. By the second clause,

there can be no discrimination, among other things,

on the ground of residence. Realising, however, that

sometimes local sentiments may have to be respected

or sometimes an inroad from more advanced States

into less developed States may have to be prevented,

and a residential qualification may, therefore, have to

be prescribed, the exception in Clause (3) was made.

Even so, that clause spoke of residence within the

State. The claim of Mr. Setalvad that Parliament can

make a provision regarding residence in any

particular part of a State would render the general

prohibition lose all its meaning. The words 'any


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requirement' cannot be read to warrant something

which could have been said more specifically. These

words bear upon the kind of residence or its duration

rather than its location within the State. We accept

the argument of Mr. Gupte that the Constitution as it

stands, speaks of a whole State as the venue for

residential qualification and it is impossible to think

that the Constituent Assembly was thinking of

residence in Districts, Taluqas, cities towns or

villages. The fact that this clause is an exception and

came as an amendment must dictate that a narrow

construction upon the exception should be placed as

indeed the debates in the Constituent Assembly also

seem to indicate. We accordingly reject the contention

of Mr. Setalvad seeking to put a very wide and liberal

construction upon the words 'any law' and 'any

requirement'. These words are obviously controlledby the words 'residence within the State or Union

Territory' which words mean what they say, neither

more nor less. It follows, therefore, that Section 3 of

the Public Employment (Requirement as to Residence)

Act, 1957, in so far as it relates to Telengana (and we

say nothing about the other parts) and Rule 3 of the

Rules under it are ultra vires the Constitution.

9. The Apex Court in Union of India and others Vs.

Sanjay Pant and others 1993 Supp. (2) Supreme Court Cases

494 have again reiterated that under Article 16(3) only a law made

by the Parliament can impose such a restriction or requirement,

as the case may be. Their Lordships have held as under:

6. The Tribunal allowed the O.A. on the

following reasoning: In two cases viz., M. Palaniappan

V. Union of India and (Smt.) Rita Kumari the Tribunal

has already held that termination of ad hoc appointee

on the ground of not being a local candidate is illegal.

These decisions were followed and applied in P.G.


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James V. Union of India where it was held that refusal

to offer regular appointment on the said ground is

illegal. These cases conclude the issue in this case.

Moreover, requirement of residence in a particular

territory (in this case, Union Territory of Andaman and

Nicobar Islands) is opposed to Article 16(2). Under

Article 16(3) only a law made by the Parliament can

impose such a restriction or requirement, as the case

may be. Admittedly, Parliament has not made any

such law. Accordingly, the O.A. was allowed and it

was declared that the respondent shall be deemed to

have been appointed to the post of Statistical Assistant

in a regular capacity with effect from April 8, 1987 (the

date on which he was offered an ad hoc appointment)

and that his seniority should be determined

accordingly.

10. The respondent-State has appointed the candidates

as Primary Assistant Teachers to impart education up to primary

level, who even do not fulfill the minimum essential qualification

prescribed under the Recruitment and Promotion Rules. There is

no data/material placed by the respondent-State on record that

the candidates who are possessing JBT degrees, have refused to

serve in tribal/difficult area. The Court can take judicial notice of

the fact that thousands of JBTs. were available when The

Himachal Pradesh Gram Vidya Ypasak Yojna 2001 was framed

and thereafter, when the present scheme was notified on

27.08.2003. The children at the primary level have the

fundamental right to be taught by a duly qualified and eligible

teacher. The minimum essential qualifications are provided under

Section 23 of the Act, pursuant to which, the notification has been

issued on 23rd August, 2010, whereby the minimum qualification

has been prescribed to the teachers to teach Classes-1 to 5. They


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are also required to pass TET examination. The whole concept of

framing the Scheme by the State Government initially in 2001

when the The Himachal Pradesh Gram Vidya Ypasak Yojna 2001

was framed and thereafter, when the present scheme was notified

on 27.08.2003, is in negation of Rule of Law. There cannot be any

Scheme, which is against the public policy and the already framed

Recruitment and Promotion Rules under Article 309 of the

Constitution of India. The Primary Assistant Teachers appointed

in 2003 are still teaching in breach of the mandatory provisions of

the Recruitment and Promotion Rules, notified 22nd August, 2000

and the minimum qualifications prescribed under the notification,

dated 23rd August, 2010 and without passing the Teachers

Eligibility test.

11. The standards of education would fall if the

respondent-State keeps on making appointment by resorting to

the recruitment from ineligible candidates. The appointments of

teachers should be strictly as per the Recruitment and Promotion

Rules and the norms prescribed by the National Council for

Teacher Education and the standards cannot be lowered/diluted

by appointing ineligible candidates. The zone of consideration

must be wide and the recruitment should take place either at the

State level or District level, if the posts is of District cadre.

12. There is no justification for making the appointments

of teachers, that too, at Gram Panchayat level. The appointments

of teachers either through The Himachal Pradesh Gram Vidya

Ypasak Yojna 2001 or through Prathmik Sahayak

Adhyapak/Primary Assistant Teacher (PAT) has lowered the

standards of education.


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13. The purpose of providing JBT, B.Ed. and other

qualified teachers, is that the students at grass root level must get

quality education. The State should recruit most qualified

teachers at the grass root level. In case the students are taught by

incompetent teachers, it would affect their entire educational

career. The state Government is resorting to fill up the posts of

JBTs. by appointing PATs. against these posts by usurping the

rights of duly qualified teachers, who have obtained the

qualification in education. The qualification acquired by the JBT

or B.Ed. candidates make them most suitable teachers, since they

are imparted practical training also how the students have to be

taught at the grass root level.

14. There is no merit in the contention of Mr. Vikas

Rathore, learned Deputy Advocate General that the writ petition is

premature since there is no likelihood of the services of the

teachers appointed under PAT Scheme being regularized. It has

come in the reply filed by respondent No. 3 itself that 1400

teachers appointed under the Himachal Pradesh Gram Vidya

Upasak Yojna 2001 have been regularized in 2008. Thus, there is

every possibility of the respondent-State resorting to regularization

of the services of Primary Assistant Teachers on the analogy of

teachers appointed under the Himachal Pradesh Gram Vidya

Upasak Yojna 2001, which would further lower the standards of

education throughout the State of Himachal Pradesh. There are

about 3482 teachers, who have been appointed under PAT

Scheme against the posts of JBTs. The petitioners do not have any

fundamental right to be appointed against the posts of JBTs., but

have a right to be considered for the posts of JBTs. which are


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occupied by the candidates who do not fulfill the minimum

educational qualification prescribed as per the Recruitment and

Promotion Rules.

15. The matter is required to be considered from another

angle. The appointments under the Himachal Pradesh Gram Vidya

Upasak Yojna 2001 as well as Himachal Pradesh Prathmic

Sahayak Adhyapak/Primary Assistant Teacher (PAT) Scheme

2003 are made by the Gram Panchayats. It is, thus, intriguing to

note how their services can be regularized by the State. They are

not the employees of the State Government. Their appointing

authority and disciplinary authority is the Gram Panchayat. The

Gram Panchayats are the separate entities and the State

Government only releases the grant-in-aid to the teachers towards

honorarium.

16. According to Section 29 of The Right of Children to

Free and Compulsory Education Act, 2009, the curriculum and

the evaluation procedure for elementary education shall be laid

down by an academic authority to be specified by the appropriate

Government, by notification. The academic authority, while laying

down the curriculum and the evaluation procedure under Sub-

section (1) of Section 29 of the Act, has to take into consideration

the following, namely:

(a) conformity with the values enshrined in theConstitution;

(b) all round development of the child;(c) building up childs knowledge, potentiality and

talent;

(d) development of physical and mental abilities tothe fullest extent;


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(e) learning through activities, discovery andexploration in a child friendly and child-centered

manner;

(f) medium of instructions shall, as far aspracticable, be in childs mother tongue;

(g) making the child free of fear, trauma and anxietyand helping the child to express views freely;

(h) Comprehensive and continuous evaluation ofchilds understanding of knowledge and his or

her ability to apply the same

17. Their Lordships of the Honble Supreme Court in The

Ahmedabad St. Xaviers College society and another versus

State of Gujarat and another, (1974) 1 SCC 717 have held that

educational institutions are temples of learning and virtues of

human intelligence are mastered and harmonized by education.

Their Lordships have further held that education develops the

ethos of the nation. Their Lordships have held as under:

30. Educational institutions are temples of

learning. The virtues of human intelligence are

mastered and harmonized by education. Where

there is complete harmony between the teacher andthe taught, where the teacher imparts and the

student receives, where there is complete dedication

of the teacher and the taught in learning, where

there is discipline: between the teacher and the

taught, where both are worshipers of learning, no

discord or challenge will arise. An educational

institution runs smoothly when the teacher and the

taught are engaged in the, common ideal of pursuit

of knowledge. It is, therefore, manifest that the

appointment of teachers is an important part in

educational institutions. The, qualifications and the

character of the teachers are really important. The

minority institutions have the right to administer


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institutions. This right implies the obligation and

duty of the minority institutions, to render the very

best to the students. In the right of administration,

checks and balances in the shape of regulatory

measures are required to ensure the appointment of

good teachers d their conditions of service. The right

to administer is to be tempered with regulatory

measures to facilitate smooth administration. The

best administration will reveal no trace or colour of

minority. A minority institution should shine in

exemplary eclectic in the administration of the

institution. The best compliment that can be paid to

a minority institution is that it does not rest on or

Proclaim its minority character.

31. Regulations which will serve the interest

of the students, regulations which will serve the

interests of the teachers are of paramountimportance in good administration. Regulations in

the interest of efficiency of teachers, discipline and

fairness in administration are necessary for

preserving harmony among affiliated institutions.

32. Education should be a great cohesive,

force in developing integrity of the nation. Education

develops the ethos of the nation. Regulations are,

therefore, necessary to see that there are no divisive

or disintegrating forces in administration.


Andhra Kesari Educational Society versus Director of School

Education and others, (1989) 1 SCC 392 have held that the

teacher alone could bring out the skills and intellectual

capabilities of students. He is the engine of the educational

system. He is a principal instrument in awakening the child to

cultural values. Their Lordships have held as under:


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20. Before parting with the case, we should

like to add a word more. Though teaching is the last

choice in the job market, the role of teachers is

central to all processes of formal education. The

teacher alone could bring out the skills and

intellectual capabilities of students. He is the

engine of the educational system. He is a principal

instrument in awakening the child to cultural

values. He needs to be endowed and energised with

needed potential to deliver enlightened service

expected of him. His quality should be such as

would inspire and motivate into action the

benefitter. He must keep himself abreast of ever

changing conditions. He is not to perform in a

wooden and unimaginative way. He must eliminate

fissiparous tendencies and attitudes and infuse

nobler and national ideas in younger minds. Hisinvolvement in national integration is more

important, indeed indispensable. It is, therefore,

needless to state that teachers should be subjected

to rigorous training with rigid scrutiny of efficiency.

It has greater relevance to the needs of the day. The

ill trained or substandard teachers would be

detrimental to our educational system; if not a

punishment on our children. The Government and

the University must, therefore, take care to see that

inadequacy in the training of teachers is not

compounded by any extraneous consideration.


State of Maharashtra versus Vikas Sahebrao Roundale and

others, (1992) 4 SCC 435 have held that teacher plays pivotal

role in moulding the career, character and moral fibres and

aptitude for educational excellence in impressive young children.

Their Lordships have held as under:


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12 The teacher plays pivotal role in

moulding the career, character and moral fibres and

aptitude for educational excellence in impressive

young children. The formal education needs proper

equipping by the teachers to meet the challenges of

the day to impart lessons with latest technics to the

students on secular, scientific and rational outlook.

A well equipped teacher could bring the needed skill

and intellectual capabilities to the students in their

pursuits. The teacher is adorned as

Gurudevobhava, next after parents, as he is a

Principal instrument to awakening the child to the

cultural ethos, intellectual excellence and discipline.

The teachers, therefore, must keep abreast ever

changing technics, the needs of the society and to

cope up with the psychological approach to the

aptitudes of the children to perform that pivotal role.In short teachers need to be endowed and energised

with needed potential to serve the needs of the

society. The qualitative training in the training

colleges or schools would inspire and motivate them

into action to the benefit of the students. For

equipping such trainee students in a school or a

college, all facilities and equipments are absolutely

necessary and institutions bereft thereof have no

place to exist nor entitled to recognition. In that

behalf compliance of the statutory requirements is

insisted upon. Slackening the standard and judicial

fiat to control the mode of education and examining

system are detrimental to the efficient management

of the education.........

20. Their Lordships of the Honble Supreme Court in St.

Johns Teachers Training Institute (for women), Madurai and

others versus State of Tamil Nadu and others, (1993) 3 SCC

595 have held that dull pattern of chalk, talk and teach has to


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be replaced by a more vibrant system with improved methods of

teaching to achieve qualitative excellence in teacher-education.


10. The teacher education programme has

to he redesigned to bring in a system of education

which can prepare the student-teacher to shoulder

the responsibility of imparting educating with a

living dynamism and the traditional pattern of

"chalk, talk and teach" method has to be replaced

by more vibrant system with improved methods of

reaching, to achieve qualitative excellence in

teacher-education.


Adarsh Shiksha Mahavidyalaya and others versus Subhash

Rahangdale and others, (2012) 2 SCC 425 have held that

importance of teachers and their training has been highlighted

time and again by eminent educationists and leaders of society.


1. The importance of teachers and their

training has been highlighted time and again by

eminent educationists and leaders of society. The

Courts have also laid considerable emphasis on the

dire need of having qualified teachers in schools and

colleges.

7. We have prefaced disposal of these

appeals, which are directed against interlocutory

order dated 17.12.2008 and final order dated

13.03.2009 passed by the Division Bench of the

Madhya Pradesh High Court in Writ Petition No.

6146 of 2008 and connected matters by highlighting

the need for well-equipped and trained teachers

because in the last three decades private

institutions engaged in conducting teacher training


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courses /programmes have indulged in brazen and

bizarre exploitation of the aspirants for admission to

teacher training courses and ranked

commercialisation and the regulatory bodies

constituted under the laws enacted by Parliament

and State Legislatures have failed to stem the rot.

The cases filed by these institutions, many of whom

have not been granted recognition due to

nonfulfilment of the conditions specified in the

National Council for Teacher Education Act, 1993

(for short, the 1993 Act) and the Regulations

framed thereunder and by the students who have

taken admission in such institutions with the hope

that at the end of the day they will be able to get

favourable order by invoking sympathy of the Court,

have choked the dockets of various High Courts and

even this Court. The enormity of litigation in thisfield gives an impression that implementation of the

provisions contained in the 1993 Act and the

Regulations framed thereunder has been acutely

deficient and the objects sought to be achieved by

enacting the special legislation, namely, planned

and coordinated development of the teacher

education system throughout the country, the

regulation and proper maintenance of norms and

standards in the teacher education system have not

been fulfilled so far.

22. There cannot be any regularization de hors the

Recruitment and Promotion Rules framed under Article 309 of

the Constitution of India read with notification, dated 23rd

August, 2010. The recruitment of the teachers de hors the

Recruitment and Promotion Rules, amounts to back door entry,

which cannot be approved by the Courts of law. The


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appointment to public employment must be as per the law in

order to up-hold Articles 14 and 16 of the Constitution of India.

23. The Constitutional Bench in Secretary, State ofKarnataka and others versusUmadevi (3) and others, (2006) 4

SCC 1 has laid down that the persons appointed on

temporary/contractual/casual/ad hoc or daily wage basis have

no legal right to regular or permanent public employment. Their

Lordships have further held that absorption, regularization or

permanent continuance of temporary, contractual, casual, daily

wage or ad hoc employees appointed/recruited and continued

or long in public employment dehors the constitutional scheme

of public employment amounts to another mode of recruitment

in public employment which is not permissible. Their Lordships

have further held that the persons who get employed, without

following a regular procedure or even through the backdoor or

on daily wages and have continued to work for ten years or

more, they would not be entitled for regular or permanent

employment. Their Lordships have held as under:

4. But, sometimes this process is not

adhered to and the Constitutional scheme of public

employment is bypassed. The Union, the States, their

departments and instrumentalities have resorted to

irregular appointments, especially in the lower rungs

of the service, without reference to the duty to ensure

a proper appointment procedure through the Public

Service Commission or otherwise as per the rules

adopted and to permit these irregular appointees or

those appointed on contract or on daily wages, to

continue year after year, thus, keeping out those who

are qualified to apply for the post concerned and

depriving them of an opportunity to compete for the


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post. It has also led to persons who get employed,

without the following of a regular procedure or even

through the backdoor or on daily wages, approaching

Courts, seeking directions to make them permanent

in their posts and to prevent regular recruitment to

the concerned posts. Courts have not always kept the

legal aspects in mind and have occasionally even

stayed the regular process of employment being set

in motion and in some cases, even directed that these

illegal, irregular or improper entrants be absorbed

into service. A class of employment which can only be

called 'litigious employment', has risen like a phoenix

seriously impairing the constitutional scheme. Such

orders are passed apparently in exercise of the wide

powers under Article 226 of the Constitution of India.

Whether the wide powers under Article 226 of the

Constitution is intended to be used for a purposecertain to defeat the concept of social justice and

equal opportunity for all, subject to affirmative action

in the matter of public employment as recognized by

our Constitution, has to be seriously pondered over. It

is time, that Courts desist from issuing orders

preventing regular selection or recruitment at the

instance of such persons and from issuing directions

for continuance of those who have not secured

regular appointments as per procedure established.

The passing of orders for continuance, tends to defeat

the very Constitutional scheme of public employment.

It has to be emphasized that this is not the role

envisaged for High Courts in the scheme of things

and their wide powers under Article 226 of the

Constitution of India are not intended to be used for

the purpose of perpetuating illegalities, irregularities

or improprieties or for scuttling the whole scheme of

public employment. Its role as the sentinel and as the

guardian of equal rights protection should not be

forgotten.


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33. It is not necessary to notice all the

decisions of this Court on this aspect. By and large

what emerges is that regular recruitment should be

insisted upon, only in a contingency an ad hoc

appointment can be made in a permanent vacancy,

but the same should soon be followed by a regular

recruitment and that appointments to non-available

posts should not be taken note of for regularization.

The cases directing regularization have mainly

proceeded on the basis that having permitted the

employee to work for some period, he should be

absorbed, without really laying down any law to that

effect, after discussing the constitutional scheme for

public employment.

39. There have been decisions which have

taken the cue from the Dharwad (supra) case and

given directions for regularization, absorption ormaking permanent, employees engaged or appointed

without following the due process or the rules for

appointment. The philosophy behind this approach is

seen set out in the recent decision in The Workmen of

Bhurkunda Colliery of M/s Central Coalfields Ltd. Vs.

The Management of Bhurkunda Colliery of M/s

Central Coalfields Ltd. (JT 2006 (2) SC 1), though the

legality or validity of such an approach has not been

independently examined. But on a survey of

authorities, the predominant view is seen to be that

such appointments did not confer any right on the

appointees and that the Court cannot direct their

absorption or regularization or re-engagement or

making them permanent.

43. Thus, it is clear that adherence to the

rule of equality in public employment is a basic

feature of our Constitution and since the rule of law is

the core of our Constitution, a Court would certainly

be disabled from passing an order upholding a

violation of Article 14 or in ordering the overlooking of


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the need to comply with the requirements of Article

14 read with Article 16 of the Constitution. Therefore,

consistent with the scheme for public employment,

this Court while laying down the law, has

necessarily to hold that unless the appointment is in

terms of the relevant rules and after a proper

competition among qualified persons, the same would

not confer any right on the appointee. If it is a

contractual appointment, the appointment comes to

an end at the end of the contract, if it were an

engagement or appointment on daily wages or casual

basis, the same would come to an end when it is

discontinued. Similarly, a temporary employee could

not claim to be made permanent on the expiry of his

term of appointment. It has also to be clarified that

merely because a temporary employee or a casual

wage worker is continued for a time beyond the termof his appointment, he would not be entitled to be

absorbed in regular service or made permanent,

merely on the strength of such continuance, if the

original appointment was not made by following a

due process of selection as envisaged by the relevant

rules. It is not open to the court to prevent regular

recruitment at the instance of temporary employees

whose period of employment has come to an end or of

ad hoc employees who by the very nature of their

appointment, do not acquire any right. High Courts

acting under Article 226 of the Constitution of India,

should not ordinarily issue directions for absorption,

regularization, or permanent continuance unless the

recruitment itself was made regularly and in terms of

the constitutional scheme. Merely because, an

employee had continued under cover of an order of

Court, which we have described as 'litigious

employment' in the earlier part of the judgment, he

would not be entitled to any right to be absorbed or

made permanent in the service. In fact, in such cases,


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the High Court may not be justified in issuing interim

directions, since, after all, if ultimately the employee

approaching it is found entitled to relief, it may be

possible for it to mould the relief in such a manner

that ultimately no prejudice will be caused to him,

whereas an interim direction to continue his

employment would hold up the regular procedure for

selection or impose on the State the burden of paying

an employee who is really not required. The courts

must be careful in ensuring that they do not interfere

unduly with the economic arrangement of its affairs

by the State or its instrumentalities or lend

themselves the instruments to facilitate the

bypassing of the constitutional and statutory

mandates.

45. While directing that appointments,

temporary or casual, be regularized or madepermanent, courts are swayed by the fact that the

concerned person has worked for some time and in

some cases for a considerable length of time. It is not

as if the person who accepts an engagement either

temporary or casual in nature, is not aware of the

nature of his employment. He accepts the

employment with eyes open. It may be true that he is

not in a position to bargain -- not at arms length --

since he might have been searching for some

employment so as to eke out his livelihood and

accepts whatever he gets. But on that ground alone,

it would not be appropriate to jettison the

constitutional scheme of appointment and to take the

view that a person who has temporarily or casually

got employed should be directed to be continued

permanently. By doing so, it will be creating another

mode of public appointment which is not permissible.

If the court were to void a contractual employment of

this nature on the ground that the parties were not

having equal bargaining power, that too would not


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enable the court to grant any relief to that employee.

A total embargo on such casual or temporary

employment is not possible, given the exigencies of

administration and if imposed, would only mean that

some people who at least get employment

temporarily, contractually or casually, would not be

getting even that employment when securing of such

employment brings at least some succor to them.

After all, innumerable citizens of our vast country are

in search of employment and one is not compelled to

accept a casual or temporary employment if one is

not inclined to go in for such an employment. It is in

that context that one has to proceed on the basis that

the employment was accepted fully knowing the

nature of it and the consequences flowing from it. In

other words, even while accepting the employment,

the person concerned knows the nature of hisemployment. It is not an appointment to a post in the

real sense of the term. The claim acquired by him in

the post in which he is temporarily employed or the

interest in that post cannot be considered to be of

such a magnitude as to enable the giving up of the

procedure established, for making regular

appointments to available posts in the services of the

State. The argument that since one has been working

for some time in the post, it will not be just to

discontinue him, even though he was aware of the

nature of the employment when he first took it up, is

not one that would enable the jettisoning of the

procedure established by law for public employment

and would have to fail when tested on the touchstone

of constitutionality and equality of opportunity

enshrined in Article 14 of the Constitution of India.

49. It is contended that the State action in

not regularizing the employees was not fair within

the framework of the rule of law. The rule of law

compels the State to make appointments as


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envisaged by the Constitution and in the manner we

have indicated earlier. In most of these cases, no

doubt, the employees had worked for some length of

time but this has also been brought about by the

pendency of proceedings in Tribunals and courts

initiated at the instance of the employees. Moreover,

accepting an argument of this nature would mean

that the State would be permitted to perpetuate an

illegality in the matter of public employment and that

would be a negation of the constitutional scheme

adopted by us, the people of India. It is therefore not

possible to accept the argument that there must be a

direction to make permanent all the persons

employed on daily wages. When the court is

approached for relief by way of a writ, the court has

necessarily to ask itself whether the person before it

had any legal right to be enforced. Considered in thelight of the very clear constitutional scheme, it cannot

be said that the employees have been able to

establish a legal right to be made permanent even

though they have never been appointed in terms of

the relevant rules or in adherence of Articles 14 and

16 of the Constitution.

54. It is also clarified that those decisions

which run counter to the principle settled in this

decision, or in which directions running counter to

what we have held herein, will stand denuded of

their status as precedents.

Their Lordships of the Honble Supreme Court have

further held in Secretary, State of Karnataka and others versus

Umadevi (3) and others (supra) that the persons, whose

appointments are irregular, may be regularized, if they have put

in ten years, however, distinction has been drawn in irregular

and illegal appointment. Their Lordships have held as under:


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3. A sovereign government, considering the

economic situation in the country and the work to be

got done, is not precluded from making temporary

appointments or engaging workers on daily wages.

Going by a law newly enacted, The National Rural

Employment Guarantee Act, 2005, the object is to

give employment to at least one member of a family

for hundred days in an year, on paying wages as

fixed under that Act. But, a regular process of

recruitment or appointment has to be resorted to,

when regular vacancies in posts, at a particular point

of time, are to be filled up and the filling up of those

vacancies cannot be done in a haphazard manner or

based on patronage or other considerations. Regular

appointment must be the rule.

11. In addition to the equality clause

represented by Article 14 of the Constitution, Article16 has specifically provided for equality of

opportunity in matters of public employment.

Buttressing these fundamental rights, Article 309

provides that subject to the provisions of the

Constitution, Acts of the legislature may regulate the

recruitment and conditions of service of persons

appointed to public services and posts in connection

with the affairs of the Union or of a State. In view of

the interpretation placed on Article 12 of the

Constitution by this Court, obviously, these principles

also govern the instrumentalities that come within the

purview of Article 12 of the Constitution. With a view

to make the procedure for selection fair, the

Constitution by Article 315 has also created a Public

Service Commission for the Union and Public Service

Commissions for the States. Article 320 deals with

the functions of Public Service Commissions and

mandates consultation with the Commission on all

matters relating to methods of recruitment to civil

services and for civil posts and other related matters.


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As a part of the affirmative action recognized by

Article 16 of the Constitution, Article 335 provides for

special consideration in the matter of claims of the

members of the scheduled castes and scheduled

tribes for employment. The States have made Acts,

Rules or Regulations for implementing the above

constitutional guarantees and any recruitment to the

service in the State or in the Union is governed by

such Acts, Rules and Regulations. The Constitution

does not envisage any employment outside this

constitutional scheme and without following the

requirements set down therein.

12. In spite of this scheme, there may be

occasions when the sovereign State or its

instrumentalities will have to employ persons, in

posts which are temporary, on daily wages, as

additional hands or taking them in without followingthe required procedure, to discharge the duties in

respect of the posts that are sanctioned and that are

required to be filled in terms of the relevant procedure

established by the Constitution or for work in

temporary posts or projects that are not needed

permanently. This right of the Union or of the State

Government cannot but be recognized and there is

nothing in the Constitution which prohibits such

engaging of persons temporarily or on daily wages, to

meet the needs of the situation.

But the fact that such engagements are

resorted to, cannot be used to defeat the very scheme

of publicemployment. Nor can a court say that the

Union or the State Governments do not have the right

to engage persons in various capacities for a duration

or until the work in a particular project is completed.

Once this right of the Government is recognized and

the mandate of the constitutional requirement for

public employment is respected, there cannot be

much difficulty in coming to the conclusion that it is


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17. Admittedly, the employees in question in

Court had not been appointed by following the

regular procedure, and instead they had been

appointed only due to the pressure and agitation of

the union and on compassionate ground. There were

not even vacancies on which they could be appointed.

As held in A. Umarani vs. Registrar, Cooperative

Societies & Ors. 2004(7) SCC 112, such employees

cannot be regularized as regularization is not a mode

of recruitment. In Umarani's case the Supreme Court

observed that the compassionate appointment of a

woman whose husband deserted her would be illegal

in view of the absence of any scheme providing for

such appointment of deserted women.

18. In State of M.P. and others vs. Yogesh

Chandra Dubey and others 2006 (8) SCC 67, this

Court held that a post must be created and/orsanctioned before filling it up. If an employee is not

appointed against a sanctioned post he is not entitled

to any scale of pay. In our opinion, the ratio of the

aforesaid decision squarely applies to the facts of the

present case also.

34. Thus, it is well settled that there is no

right vested in any daily wager to seek

regularization. Regularization can only be done in

accordance with the rules and not de hors the rules.

In the case of E. Ramakrishnan & others vs. State of

Kerala & others 1996 (10) SCC 565 this Court held

that there can be no regularization de hors the rules.

The same view was taken in Dr. Kishore vs. State of

Maharashtra 1997(3) SCC 209, Union of India &

others vs. Bishambar Dutt 1996 (11) SCC 341. The

direction issued by the services tribunal for

regularizing the services of persons who had not

been appointed on regular basis in accordance with

the rules was set aside although the petitioner had

been working regularly for a long time.


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37. Creation and abolition of posts and

regularization are a purely executive function vide

P.U. Joshi vs. Accountant General, Ahmedabad &

others 2003(2) SCC 632. Hence, the court cannot

create a post where none exists. Also, we cannot

issue any direction to absorb the respondents or

continue them in service, or pay them salaries of

regular employees, as these are purely executive

functions. This Court cannot arrogate to itself the

powers of the executive or legislature. There is broad

separation of powers under the Constitution, and the

judiciary, too, must know its limits.

38. The respondents have not been able to

point out any statutory rule on the basis of which

their claim of continuation in service or payment of

regular salary can be granted. It is well settled that

unless there exists some rule no direction can beissued by the court for continuation in service or

payment of regular salary to a casual, ad hoc, or

daily rate employee. Such directions are executive

functions, and it is not appropriate for the court to

encroach into the functions of another organ of the

State. The courts must exercise judicial restraint in

this connection. The tendency in some

courts/tribunals to legislate or perform executive

functions cannot be appreciated. Judicial activism in

some extreme and exceptional situation can be

justified, but resorting to it readily and frequently, as

has lately been happening, is not only

unconstitutional, it is also fraught with grave peril for

the judiciary.

43. In view of the above observations of this

Court it has to be held that the rules of recruitment

cannot be relaxed and the court/Tribunal cannot

direct regularization of temporary appointees de hors

the rules, nor can it direct continuation of service of a

temporary employee (whether called a casual, ad hoc


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or daily rate employee) or payment of regular salaries

to them.

44. It is well settled that regularization

cannot be a mode of appointment vide Manager, RBI,

Bangalore vs S. Mani & others, AIR 2005 SC 2179

(para 54).

25. The Apex Court in Official Liquidator versus

Dayanand and others, (2008) 10 SCC 1 has held that ruling of

Constitution Bench in Umadevi (3) case 2006 (4) SCC 1 is

binding on all the Courts till the same is over ruled by a Larger

Bench. Their Lordships have further held that the menace of

illegal and backdoor appointments compelled the courts to

rethink and in a large number of subsequent judgments the

Apex Court declined to entertain the claims of ad hoc and

temporary employees for regularization of services. Their

Lordships have also observed that thousands of persons were

employed/ engaged throughout the length and breadth of the

country by backdoor methods. A huge illegal employment

market developed in different parts of the country and rampant

corruption afflicted the whole system.


State of Bihar versus Upendra Narayan Singh and others,

2009 (4) Scale 282 have held that equality clause enshrined in

Article 16 mandates that every appointment to public posts or

office should be made by open advertisement so as to enable all

eligible persons to compete for selection on merit. Their

Lordships have held as under:

13. The equality clause enshrined in Article

16 mandates that every appointment to public posts


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or office should be made by open advertisement so as

to enable all eligible persons to compete for selection

on merit - Umesh Kumar Nagpal v. State of Haryana

and others [(1994) 4 SCC 138], Union Public Service

Commission v. Girish Jayanti Lal Vaghela [(2006) 2

SCC 482], State of Manipur and others v. Y. Token

Singh and others [(2007) 5 SCC 65] and

Commissioner, Municipal Corporation, Hyderabad

and others v. P. Mary Manoranjani and another

[(2008) 2 SCC 758]. Although, the Courts have carved

out some exceptions to this rule, for example,

compassionate appointment of the dependent of

deceased employees, for the purpose of this case it is

not necessary to elaborate that aspect.

27. In a recent judgment in State of Karnataka and

others versus G.V. Chandrashekar, (2009) 4 SCC 342, the Apex

Court has reiterated that ad hoc appointment even if it

continues for long time cannot be ordered to be regularized.


2. The short question which arises for

consideration herein is as to whether the respondents

herein having been appointed on an ad-hoc basiscould be treated to have been regularized in their

services.

32. The Bench in Dayanand case noticed

several judgments/orders of different Benches taking

a view contrary to Uma Devi (3) (supra) to opine that

those cases were illustrative of non-adherence to the

rule of judicial discipline which is sine qua non for

sustaining the system. It was opined:

"90. We are distressed to note that despite

several pronouncements on the subject, there is

substantial increase in the number of cases involving

violation of the basics of judicial discipline. The

learned Single Judges and Benches of the High


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Courts refuse to follow and accept the verdict and

law laid down by coordinate and even larger

Benches by citing minor difference in the facts as the

ground for doing so. Therefore, it has become

necessary to reiterate that disrespect to constitutional

ethos and breach of discipline have grave impact on

the credibility of judicial institution and encourages

chance litigation. It must be remembered that

predictability and certainty is an important hallmark

of judicial jurisprudence developed in this country in

last six decades and increase in the frequency of

conflicting judgments of the superior judiciary will do

incalculable harm to the system inasmuch as the

courts at the grass root will not be able to decide as

to which of the judgments lay down the correct law

and which one should be followed.

91. We may add that in our constitutionalset up every citizen is under a duty to abide by the

Constitution and respect its ideals and institutions.

Those who have been entrusted with the task of

administering the system and operating various

constituents of the State and who take oath to act in

accordance with the Constitution and uphold the

same, have to set an example by exhibiting total

commitment to the Constitutional ideals. This

principle is required to be observed with greater

rigour by the members of judicial fraternity who have

been bestowed with the power to adjudicate upon

important constitutional and legal issues and protect

and preserve rights of the individuals and society as

a whole. Discipline is sine qua non for effective and

efficient functioning of the judicial system. If the

Courts command others to act in accordance with the

provisions of the Constitution and rule of law, it is not

possible to countenance violation of the constitutional

principle by those who are required to lay down the

law.


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11. The question, however, which arises for

consideration is as to whether in the peculiar facts

and circumstances of this case, the High Court

should have directed regularization of the services of

the appellants. It has not been denied or disputed

that Railway Electrification was a temporary project.

As noticed hereinbefore, the posts held by the

appellants, indisputably, were purely on a casual

basis and not against any cadre post. Appellants

furthermore have not been appointed upon

compliance of the provisions of Articles 14 and 16 of

the Constitution of India and/or the recruitment rules

framed under the proviso appended to Article 309 of

the Constitution of India.

13. The said circular letter of the Railway

Board which had been issued long back, however,

did not take into consideration the limitation of powerof a State to make appointments in total disregard of

mandatory provisions of the recruitment rules and/or

the constitutional provision. This aspect of the matter

has been considered in A. Umarani v. Registrar,

Cooperative Societies & Ors. [(2004) 7 SCC 112],

holding :

"No regularization is, thus, permissible in

exercise of the statutory power conferred under

Article 162 of the Constitution if the appointments

have been made in contravention of the statutory

rules."


General Manager, Uttaranchal Jal Sanssthan Vs. Laxmi Devi

and others (2009) 7 Supreme Court Cases 205 have held that a

regular vacancy cannot be filled up except in terms of the

recruitment rules as also upon compliance with the constitutional

scheme of equality. Their Lordships have further held that (2006)


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4 SCC 1 is retrospective in operation. Their Lordships have held

as under:

29. Submission of the learned counsel for the

respondents is that the said decision is not applicable:

(a) as it was rendered in 2006 whereas the cause of

action for filing the writ petition arose in 2002; and

(b) a distinction must be made between the appointment

on ad hoc basis and appointment on compassionate

ground.

As to the first submission above, it is worth

mentioning that judicial decisions unless otherwise

specified are retrospective. They would only be

prospective in nature if it has been provided therein. Such

is clearly not the case in Umadevi (supra). Accordingly,

even though the cause of action would have arisen in

2002 but the decision of Umadevi (supra) would squarely

be applicable to the facts and circumstances of the case.

Secondly, before a person can claim a status of a

government servant not only his appointment must be

made in terms of the recruitment rules, he must otherwise

fulfill the criterion therefor. Appointment made in violation

of the constitutional scheme is a nullity. Rendition of

service for a long time, it is well known, does not confer

permanency. It is furthermore not a mode of appointment.

30. The stand of the respondent-State that if the

Primary Assistant Teachers are discontinued, it would lead to

social disorder, merits rejection. The primary duty of the

respondent-State is to maintain Rule of Law by providing public

employment only to duly qualified persons. The State cannot be

permitted to perpetuate the illegalities by initially appointing the

teachers, who are not qualified and then regularize them in

breach of mandatory provisions of Recruitment and Promotion

Rules. The appointment of Para teachers is in contravention of


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executive action in the matter of making

appointments to public offices against the

relevant statutory provisions; it also protects a

citizen from being deprived of public office to

which he may have a right. It would thus be

seen that if these proceedings are adopted

subject to the conditions recognised in that

behalf, they tend to protect the public from

usurpers of public office; in some cases,

persons not entitled to public office may be

allowed to occupy them and to continue to hold

them as a result of the connivance of the

executive or with its active help, and in such

cases, if the jurisdiction of the courts to issue

writ of quo warranto is properly invoked, the

usurper can be ousted and the person entitled

to the post allowed to occupy it. It is thus clearthat before a citizen can claim a writ of quo

warranto, he must satisfy the court, inter alia,

that the office in question is a public office and

is held by usurper without legal authority, and

that necessarily leads to the enquiry as to

whether the appointment of the said alleged

usurper has been made in accordance with law

or not.

32. Their Lordships of the Honble Supreme Court in B.R.

Kapur Vs. State of T.N. and another (2001) 7 Supreme Court

Cases 231 have held that a writ of quo warranto is a writ which

lies against the person, who according to the relator is not entitled

to hold an office of public nature and is only an usurper of the

office. Their Lordships have further held that it is not necessary to

implead the appointing authority as the respondent in the

proceedings. Their Lordships have held as under:


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79. In so far (as) it relates to Article 361 of the

Constitution, that the Governor shall not be answerable

to any Court for performance of duties of his office as

Governor, it may, at the very outset, be indicated that

we are considering the prayer for issue of writ of Quo

Warranto against the respondent No. 2, who according

to the petitioner suffers from disqualification to hold the

public office of the Chief Minister of a State. A Writ of

Quo Warranto is a writ which lies against the person,

who according to the relator is not entitled to hold an

office of public nature and is only a usurper of the

office. It is the person, against whom the writ of quo

warranto is directed, who is required to show, by what

authority that person is entitled to hold the office. The

challenge can be made on various grounds, including

on the grounds that the professor of the office does not

fulfill the required qualifications or suffers from anydisqualification, which debars the person to hold such

office. So as to have an idea about the nature of action

in a proceeding for writ of quo warranto and its original

form, as it used to be, it would be beneficial to quote

from Words and Phrases Permanent Edition, Volume 35

A page 648. It reads as follows :-

"The original common-law writ of quo

warranto was a civil writ at the suit of the crown,

and not a criminal prosecution. It was in the nature of

a writ of right by the King against one who usurped

or claimed franchises or liabilities, to inquire by what

right he claimed them. This writ, however, fell into

disuse in England centuries ago, and its place was

supplied by an information in the nature of a quo

warranto, which in its origin was a criminal method

of prosecution, as well to punish the usurper by a fine

for the usurpation of the franchise, as to oust him or

seize it for the crown. Long before our Revolution,

however, it lost its character as a criminal proceeding

in everything except form, and was applied to the


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mere purposes of trying the civil right, seizing the

franchise, or ousting the wrongful possessor, the fine

being nominal only; and such, without any special

legislation to that effect, has always been its

character in many of the States of the Union, and it

is, therefore, a civil remedy only. Ames v. State of

Kansas (1883-84) 4 S Ct 437, 442, 111 US 449, 28 L

Ed 482; People v. Dashaway Assam 'n, 24 P. 277,

278, 84 Cal. 114."

80. In the same Volume of Words and

Phrases Permanent Edition at page 647 we find as

follows:-

"The writ of "quo warranto" is not a substitute

for mandamus or injunction nor for an appeal or writ

of error, and is not to be used to prevent an improper

exercise of power lawfully possessed, and its

purpose is solely to prevent an officer or corporationor persons purporting to act as such from usurping a

power which they do not have. State ex inf. Mc.

Kittrick v. Murphy, 148 SW 2d 527, 529, 530, 347

Mo. 484.

(Emphasis supplied)

Information in nature of "quo warranto"

does not command performance of official functions

by any officer to whom it may run, since it is not

directed to officer as such, but to person holding

office or exercising franchise, and not for purpose of

dictating or prescribing official duties, but only to

ascertain whether he is rightfully entitled to exercise

functions claimed. State Ex. inf. Walsh v. Thactcher,

102 SW 2d 937, 938, 340 Mo. 865"

(Emphasis supplied)

82. Besides the above, many High Courts as

well as this Court have, taken the view that a writ of

quo warranto lies against a person who is called

upon to establish his legal entitlement to hold the

office in question. Reference : AIR 1952 Trav Co 66,


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(1944) 48 Cal W N 766, AIR 1977 NOC 246 (Him

Property), AIR 1952 Nagpur 330, AIR 1945 Cal 249

and AIR 1965 SC 491. In view of the legal position as

indicated above it would not be necessary to implead

the appointing authority as respondent in the

proceedings. In the case in hand, the Governor need

not be made answerable to Court. Article 361 of the

Constitution, however, does not extend any protection

or immunity, vicariously, to holder of an office, which

under the law, he is not entitled to hold. On being

called upon to establish valid authority to hold a

public office, if the person fails to do so, a writ of quo

warranto shall be directed against such person. It

shall be no defence to say that the appointment was

made by the competent authority, who under the law

is not answerable to any Court for anything done in

performance of duties of his office. The question offulfilling the legal requirements and qualifications

necessary to hold a public office would be considered

in the proceedings, independent of the fact as to who

made the appointment and the manner in which

appointment was made. Therefore, Article 361 of the

Constitution would be no impediment in examining

the question of entitlement of a person, appointed by

the Governor to hold a public office, who according to

the petitioner/relator is a usurper to the office.

33. Their Lordships of the Honble Supreme Court in High

Court of Gujarat and another Vs. Gujarat Kishan Mazdoor

Panchayat and others (2003) 4 Supreme Court Cases 712 have

held that a writ of quo warranto can only be issued when the

appointment is contrary to the statutory rules. Their Lordships

have held as under:

22. The High Court in exercise of its writ

jurisdiction in a matter of this nature is required to


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determine at the outset as to whether a case has been

made out for issuance of a writ of certiorari or a writ of

quo warranto. The jurisdiction of the High Court to

issue a writ of quo warranto is limited one. While

issuing such a writ, the Court merely makes a public

declaration but will not consider the respective impact

of the candidates or other factors which may be

relevant for issuance of a writ of certiorari. (See R.K.

Jain V. Union of India, SCC para 74.)

23. A writ of quo warranto can only be issued

when the appointment is contrary to the statutory

rules. (See Mor Modern Coop. Transport Society Ltd. V.

Financial Commr. & Secy. to Govt. of Haryana.)

34. Their Lordships of the Honble Supreme Court have

succinctly explained the scope of quo warranto in N. Kannadasan

Vs. Ajoy Khose and others (2009)7 SCC 1. Their Lordships have

further held that even the busybody can challenge the

appointment of President of State Consumer Commission. Their

Lordships have held as under:

105. Judicial review in our constitutional

scheme itself is a part of its basic structure. Decisions

whether arrived at by the Executive or the Judiciary

are subject to judicial review.

109. Indisputably, a writ petition even at the

instance of a busy body for issuance of a writ of quo

warranto questioning the appointment of Chairman of

a State Commission made in terms of Section 16 of

the Act would be maintainable. For the

aforementioned purpose the eligibility criteria as laid

down in Section 16 of the Act as also the question as

to whether in making such an appointment the State

consulted the Chief Justice of High Court as

envisaged under the proviso appended thereto would

fall for consideration. An appointment to a statutory


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post is an administrative decision. The act of

consultation is an executive act.

163. The summary of our aforementioned

discussions is as under:

(ii) The superior courts may not only

issue a writ of quo warranto but also a writ in the

nature of quo warranto. It is also entitled to issue a

writ of declaration which would achieve the same

purpose..

35. Accordingly, the writ petition is allowed. The

respondent-State is directed to phase out the teachers appointed

under The Himachal Pradesh Prathmic Sahayak

Adhyapak/Primary Assistant Teacher (PAT) Scheme 2003,

notified on 27th August, 2003 in a phased manner and to

commence the selection process for filling up the posts of JBTs.

strictly as per the Recruitment and Promotion Rules, notified on

22nd August, 2000 read with notification, dated 23rd August, 2010,

notified by the National Council for Teacher Education. This

process shall be completed within a period of six months from

today. The respondent-State is directed not to regularize the

services of those teachers, who have been appointed de hors the

Recruitment and Promotion Rules framed under Article 309 of the

Constitution of India read with minimum qualification prescribed

under the National Council For Teacher Education notification,

dated 23rd August, 2010. The pending application(s), if any, also

stands disposed of. No costs.

(Rajiv Sharma)Judge

October 18, 2012.(bhupender)


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