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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.
18. Their Lordships of the Honble Supreme Court in
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.
19. Their Lordships of the Honble Supreme Court in
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.
Their Lordships have held as under:
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.
21. Their Lordships of the Honble Supreme Court in
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.
Their Lordships have held as under:
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.
26. Their Lordships of the Honble Supreme Court in
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.
Their Lordships have held as under:
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."
29. Their Lordships of the Honble Supreme Court in
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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