Service matter - appointment of private teachers - DEO refused to approve - challanged - High court allowed the writs - Apex court held that since the appointments are made against the procedure , the order of High court is liable to be set aside - further held that The Management had required the private respondents to discharge their duties, without the prior approval of the State Government. The Management should therefore bear the responsibility of shouldering the emoluments payable to the private respondents. We therefore, hereby direct the Management of the Doaba Arya Senior Secondary School, Nawanshahr to pay all emoluments (if the same are still unpaid) to the private respondents, within two months from the date of receipt of a copy of this order.=
Wanted following dedicated, talented, trained and experienced teachers
against six vacant JBT/ETT aided posts preferably one M.A. English, one
M.Sc. Chem., One M.Sc. Bio, M.Com., one M.Sc. Maths, one M.A. Eco and one
Watchman. Apply Principal afresh within ten days alongwith testimonials.
Reservation exists as per Govt. rules.
Sd/-
Principal, Doaba Arya Sr. Sec. School,
Nawanshahr. =
The private respondents were selected against the six
advertised posts, by the Managing Committee of the above school. Despite
their selection and consequential appointment, the State Government did not accord its approval.=
It is therefore, that the District Education Officer,
Nawanshahr (hereinafter referred to as the 'DEO') passed an order dated
04.4.2005, declining the claim of the private respondents. A perusal of
the speaking order passed by the DEO, inter alia, reveals, that the private
respondents had been appointed in violation of the statutory rules
regulating appointments to privately managed recognised schools. It was
also indicated in the order dated 04.4.2005, that the selection process was
not in consonance with the statutory rules.
The order passed by the DEO dated 04.4.2005 was assailed by the
private respondents before the High Court by filing Civil Writ Petition
No. 15599 of 2006.=
we are of the view,
that the private respondents do not satisfy the pre-condition of valid
appointment expressed therein, inasmuch as, it was imperative for the
Selection Committee, in the first instance, to consider only those
candidates who possessed the qualification of JBT/ETT, and thereupon, posts
that remained unfilled could be filled up with persons possessing higher
qualifications, i.e., graduate/post graduate qualifications along with
B.Ed.. That was not the procedure which came to be adopted in the present
controversy. Therefore per se, no benefit can flow to the private
respondents, from the government instructions relied upon by the learned
counsel. Be that as it may, it needs to be emphasised, that para 6 of the
Government Instructions dated 20.12.1995, are in clear violation of the
statutory process of selection and appointment postulated under the 1981
Rules. Even if the above Government Instructions would have bestowed
validity on the selection process, through which the private respondents
came to be appointed, the same could not have been acceded to, since
Government Instructions in violation of the statutory rules, are a nullity
in law. In view of the foregoing reasons, it is not possible for us to
bestow legitimacy/legality to the appointment of the respondents as JBT/ETT
teachers.
For the reasons recorded hereinabove, we are satisfied that the
impugned order passed by the High Court dated 2.7.2007 is liable to be set
aside. The same is accordingly hereby set aside.
We were informed, that the private respondents came to be
appointed by the Management of the Doaba Arya Senior Secondary School,
Nawanshahr, in the year 2002. We were also informed, that the private
respondents have continued to be in the employment of the Doaba Arya Senior
Secondary School, Nawanshahr, till date. No fault whatsoever lies with the
private respondents. The fault, if at all, lies with the Management of
the Doaba Arya Senior Secondary School, Nawanshahr. Unfortunately, the
Management of the Doaba Arya Senior Secondary School, Nawanshahr, issued an advertisement in violation of the 1981 Rules. The procedure depicted in
the 1981 Rules was also not followed while making appointments, to the six
vacant posts of JBT/ETT teachers. The Management had required the private
respondents to discharge their duties, without the prior approval of the
State Government. The Management should therefore bear the responsibility
of shouldering the emoluments payable to the private respondents. We
therefore, hereby direct the Management of the Doaba Arya Senior Secondary
School, Nawanshahr to pay all emoluments (if the same are still unpaid) to
the private respondents, within two months from the date of receipt of a
certified copy of this order.
The instant civil appeals are accordingly allowed in the above
terms.
2014 - Sept.Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=42029
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.7983-7986 OF 2009
State of Punjab and others ..Appellants
versus
Anita and others ..Respondents
WITH
CIVIL APPEAL NOS.7970-7971 OF 2009
J U D G M E N T
J.S.KHEHAR, J.
The Management of the Doaba Arya Senior Secondary School,
Nawanshahr, issued an advertisement in the Indian Express dated 25.05.2002,
inviting applications for six vacant posts of JBT/ETT teachers. Since the
controversy, being adjudicated upon, is substantially to be determined on
the basis of the contents of the advertisement, the above advertisement
dated 25.05.2002 is being extracted hereunder:
“Doaba Arya Senior Secondary School, Nawanshahr
Wanted following dedicated, talented, trained and experienced teachers
against six vacant JBT/ETT aided posts preferably one M.A. English, one
M.Sc. Chem., One M.Sc. Bio, M.Com., one M.Sc. Maths, one M.A. Eco and one
Watchman. Apply Principal afresh within ten days alongwith testimonials.
Reservation exists as per Govt. rules.
Sd/-
Principal, Doaba Arya Sr. Sec. School,
Nawanshahr.
The private respondents were selected against the six
advertised posts, by the Managing Committee of the above school. Despite
their selection and consequential appointment, the State Government did not accord its approval. It is in the aforesaid circumstances, that the private
respondents, i.e., the selected JBT/ETT teachers issue a notice dated
1.2.2004, wherein they sought approval of the State Government, as also,
wages for the period they had been discharging their duties. Since, they
did not receive any response to the legal notice dated 1.2.2004, the
private respondents approached the High Court of Punjab and Haryana at
Chandigarh (hereinafter referred to as the 'High Court') by filing Civil
Writ Petition No.6789 of 2004. Rather than examining the merits of the
controversy, the High Court by its order dated 27.04.2004, required the
State Government to take a decision on the legal notice, issued by the
private respondents. It is therefore, that the District Education Officer,
Nawanshahr (hereinafter referred to as the 'DEO') passed an order dated
04.4.2005, declining the claim of the private respondents. A perusal of
the speaking order passed by the DEO, inter alia, reveals, that the private
respondents had been appointed in violation of the statutory rules
regulating appointments to privately managed recognised schools. It was
also indicated in the order dated 04.4.2005, that the selection process was
not in consonance with the statutory rules.
The order passed by the DEO dated 04.4.2005 was assailed by the
private respondents before the High Court by filing Civil Writ Petition
No. 15599 of 2006. The same came to be allowed by the impugned order dated
2.7.2007. A perusal of the impugned order reveals, that the High Court
emphatically placed reliance on an earlier litigation in respect of the
same selection process, wherein a Division Bench of the High Court, while
disposing of civil writ petition No. 13979 of 2002 (by order dated
16.2.2004), had found the petitioner therein not possessing superior
qualifications to the private respondent no.4, whose selection was sought
to be assailed. The High Court had also, while disposing of civil writ
petition no.13979 of 2002, rejected the contention advanced at the hands of
the petitioner therein, that the process of selection was vitiated on
account of bias.
Since the order passed in civil writ petition no. 13979 of 2002
was affirmed by this Court, the special leave petition filed against the
said order before this Court was dismissed. The High Court inferred from
the above dismissal, that the selection process had been approved by this
Court.
We will first endeavour to deal with the basis adopted by the
High Court in affirming the selection process of the private respondents,
consequent whereof they came to be appointed as JBT/ETT teachers. It would
be relevant to mention, that the qualifications prescribed for the
advertised JBT/ETT posts were not at all the subject matter of
consideration in writ petition no. 13979 of 2002, nor was the selection
process a matter for consideration. In the above view, it was not proper
for the High Court to approve the selection process, by which the six
private respondents came to be appointed as JBT/ETT teachers. Moreover,
the issues which are now raised were not examined by the High Court, or by
this Court, during the previous litigation. We are, therefore, of the
considered view, that the High Court should have addressed the pointed
questions raised before it, while examining the legality of the order
passed by the DEO dated 04.4.2005. Unfortunately, the High Court did not
deal with any of the reasons recorded by the DEO (while rejecting the claim
raised by the private respondents).
We shall now deal with the pointed issues recorded by the DEO
in his order dated 04.4.2005. It is not a matter of dispute, that insofar
as the selection and appointments to privately managed recognised schools
in the State of Punjab is concerned, the same are regulated by the Punjab
Privately Managed Recognised Schools Employees (Security of Service) Rules,
1981 (hereinafter referred to as the '1981 Rules'). Rule 6 of the
aforesaid Rules lays down the qualifications for different posts, and Rule
7 the manner/method of appointment. Rules 6 and 7 of the 1981 Rules are
reproduced hereunder:
“6. Qualification – (1) No person shall be appointed to an aided post,
unless he possess the qualifications and experience as specified against
that post in the Appendix to these rules.
(2) Unless otherwise specified in the Appendix to these rules, an employee
who has not attained the knowledge of Hindi and Punjabi language of
matriculation standard or its equivalent, shall have to acquire the same
within a period of two years from the date of his appointment of the
commencement of these rules, whichever is earlier, failing which he shall
not earn his first grade increments till he acquires such knowledge when
the increments shall be released retrospectively :
Provided that he shall not be entitled to get arrears of the released grade
increments for the period during which he could not acquire the aforesaid
knowledge.
7. Appointing authority and method of appointment – All appointments to the
aided posts shall be made by the managing committee in the following
manner:
(i) Appointing authority shall advertise in both English and vernacular
daily newspapers in the State, vacancy or vacancies to be filled in by
giving full particulars thereof including the requisite qualifications,
number of vacancies to be filled in and the last date by which the
applications may be submitted;
(ii) The recommendations for appointment of the candidates shall be made by
a sub-committee consisting five members of the managing committee.
(2) The members of the sub-committee shall be appointed by the managing
committee.”
A perusal of Rule 6 reveals, that qualifications for posts under the
purview of the 1981 Rules have been expressed in the appendix to the 1981
Rules. Insofar as the post of JBT teacher is concerned, the same figures at
serial no.10 of the appendix, wherein the prescribed qualifications are as
under:
APPENDIX
(See Rule 6)
|Serial |Designation of Post |Qualifications and experiences |
|No. | | |
|1 |2 |3 |
|10. |J.B.T. Teacher |(i) Martic with two years course in |
| | |J.B.T. Training; and |
| | | |
| | |(ii) Knowledge of Punjabi and Hindi |
| | |Language of Matriculation Standard or|
| | |its equivalent. |
Under the 1981 Rules, for the post of JBT teachers, the prescribed
qualification is, matriculation with two years course in JBT training. In
addition thereto, a candidate should have knowledge of Punjabi and Hindi
language of matriculation standard, or its equivalent.
The issue which requires our consideration is, whether the
advertisement issued by the Doaba Arya Senior Secondary School, Nawanshahr,
had invited applications by truly reflecting the prescribed qualifications,
and also whether, the private respondents possess the qualification
prescribed for the post of JBT/ETT teachers, which was advertised on
25.2.2002.
While examining the advertisement, which has been extracted
hereinabove, we are satisfied that applications were not invited from
candidates possessing the qualification depicted in the appendix to the
1981 Rules, pertaining to the posts of JBT/ETT teachers. It is also
apparent, that none of the private respondents possess the qualification of
JBT/ETT, and as such, none of them can be stated to be possessed of
qualifications statutorily prescribed and delineated in the appendix of the
1981 Rules. None of the private respondents was therefore per se eligible
for appointment to the posts of JBT/ETT teachers. This was one of the
pointed reasons why the State Government did not grant its approval to the
selection and appointment of the private respondents. In our considered
view, no infirmity can be found in the aforesaid determination at the hands
of the State Government.
Insofar as the issue in hand is concerned, reference may be
made to the decision rendered by this Court in P.M. Latha and another vs.
State of Kerala and others (2003) 3 SCC 541, wherein this Court held as
under:
We find absolutely no force in the argument advances by the respondents
that BEd qualification is a higher qualification than TTC and therefore the
BEd candidates should be held to be eligible to compete for the post. On
behalf of the appellants, it is pointed out before us that Trained
Teacher's Certificate is given to teachers specially trained to teach small
children in primary classes whereas for BEd degree, the training imparted
is to teach students of classes above primary. BEd degree-holders,
therefore, cannot necessarily be held to be holding qualification suitable
for appointment as teachers in primary schools. Whether for a particular
post, the source of recruitment should be from the candidates with TTC
qualification or BEd qualification, is a matter of recruitment policy. We
find sufficient logic and justification in the State prescribing
qualification for the post of primary teachers as only TTC and not BEd.
Whether BEd qualification can also be prescribed for primary teachers is a
question to be considered by the authorities concerned but we cannot
consider BEd candidates, for the present vacancies advertised, as
eligible.”
(emphasis is ours)
Reference may also be made to the decision rendered by this Court in Yogesh
Kumar and others vs. Government of NCT of Delhi and others (2003) 3 SCC
548, wherein this Court held as under:
“The Division Bench of the Delhi High Court in the impugned judgment has
dealt with the above two arguments in great detail. In our considered
opinion, it has rightly come to the conclusion that BEd qualification,
although a well-recognised qualification in the field of teaching and
education being not prescribed in the advertisement, only some of the BEd
candidates who took a chance to apply for the post cannot be given entry in
the field of selection. We also find that the High Court rightly came to
the conclusion that teacher training imparted to teachers for BEd course
equips them for teaching higher classes. A specialized training given to
teachers for teaching small children at primary level cannot be compared
with training given for awarding BEd degree. Merely because primary
teachers can also earn promotion to the post of teachers to teach higher
classes and for which BEd is the prescribed qualification, it cannot be
held that BEd is a higher qualification than TTC. Looking to the different
nature of TTC qualification, the High Court rightly held that it is not
comparable with BEd degree qualification and the latter cannot be treated
as higher qualification to the former.”
(emphasis is ours)
A perusal of the aforesaid judgments leave no room for any doubt, that it
is imperative for candidates to possess the statutory qualification
prescribed for appointment to the posts, to which they are seeking
appointment. In view of the position declared by this Court,
qualifications of B.Ed and other qualifications possessed by the private
respondents, namely, M.A., M.Sc, M.Com. Etc. cannot be treated as higher
qualifications with reference to the prescribed qualifications(JBT/ETT).
We, therefore, find the reasons recorded by the DEO in the impugned order
dated 04.4.2005 were fully justified, and in consonance with the legal
position declared by this Court, as has been noticed hereinabove.
To be fair to the learned counsel for the private respondents,
we may also make a reference to the decision rendered by this Court in
Jyoti K.K. and others vs. Kerala Public Service Commission and others
(2010) 15 SCC 596. Learned counsel had invited our attention to paragraph
7 thereof, wherein it was observed as under:
“It is no doubt true, as stated by the High Court that when a qualification
has been set out under the relevant Rules, the same cannot be in any manner
whittled down and a different qualification cannot be adopted. The High
Court is also justified in stating that the higher qualification must
clearly indicate or presuppose the acquisition of the lower qualifications
prescribed for the post shall also be sufficient for the post. If a person
has acquired higher qualifications in the same Faculty, such qualifications
can certainly be stated to presuppose the acquisition of the lower
qualifications prescribed for the post. In the case it may not be necessary
to seek far.”
(emphasis is ours)
It is no doubt true, that this Court held in the afore-stated judgment,
that if a person had acquired higher qualifications in the same faculty,
such qualifications can certainly be stated to presuppose the acquisition
of the lower qualification. Possession of higher qualification would
therefore, according to learned counsel, make a candidate eligible for the
post, even though, the candidate does not possess the prescribed
qualification. The question however is, whether the above position can be
applied to the present case?
It was sought to be asserted on the basis of the aforesaid
observations, that since the private respondents possess higher
qualifications, then the qualification of JBT/ETT, they should be treated
as having fulfilled the qualification stipulated for the posts of JBT/ETT
teachers. It is not possible for us to accept the aforesaid submission of
the learned counsel for the private respondents, because the statutory
rules which were taken into consideration by this Court while recording the
aforesaid observations in Jyoti K.K.'s case (supra), permitted the
aforesaid course. The statutory rule, in the decision relied on by the
learned counsel for the private respondents, is extracted hereunder:
6. Rule 10(a)(ii) reads as follows :
“10.(a)(ii) Notwithstanding anything contained in these Rules or in the
Special Rules, the qualifications recognised by executive orders or
standing orders of Government as equivalent to a qualification specified
for a post in the Special Rules and such of those higher qualifications
which presuppose the acquisition of the lower qualification prescribed for
the post shall also be sufficient for the post.”
(emphasis is ours)
A perusal of the rule clearly reveals, that the possession of higher
qualification would presuppose the acquisition of the lower qualification
prescribed for the posts. Insofar as the present controversy is concerned,
there is no similar statutory provision authorizing the appointment of
persons with higher qualifications. Moreover, in view of the decision
rendered by this Court in P.M. Latha's case (supra) and in Yogesh Kumar's
case (supra) lead to the clear an unambiguous conclusion that none of the
private respondents could be considered as eligible for selection or
appointment to the advertised posts of JBT/ETT teachers.
It is also necessary for us to take into consideration
Government Instructions dated 20.12.1995, which were relied upon by learned
counsel, so as to contend, that the private respondents who possess higher
qualifications including the qualifications depicted as preferential in the
advertisement, should be treated as eligible. Relevant extract of the
aforesaid Government Instructions dated 20.12.1995 is being reproduced
hereunder:
“6. Vide letter No.1/18/95-3Edu-7/20602, dated 14.09.1995 the Government
has taken the decision that in future the appointment of J.B.T. Teachers in
the Government Schools may be done in two parts. In first part the
candidates who are possessing the qualification of J.B.T./E.T.T. or
equivalent shall be considered. Thereafter, in case it emerges that,
J.B.T./E.T.T. qualified candidates are not available, in that event,
appointments may be made by adopting second part. It should be mentioned in
the advertisement, that in case candidates with J.B.T./E.T.T. or
equivalent qualification are not available, then candidates who have
graduation/post graduation qualifications with B.Ed. will also be
considered. But the candidates having qualification of graduation/post
graduation/ along with B.Ed. shall be paid the scale of J.B.T. only. In
such cases, an affidavit will be furnished by the candidates that after
selection, being graduates/post graduates candidates, will not claim any
other benefit or higher scale, and in this regard, at the time of sending
the requisition of posts, this shall also be incorporated in the
advertisement.”
Having given our thoughtful consideration to the submissions
advanced at the hands of the learned counsel for the private respondents,
based on the government instructions dated 20.12.1995, we are of the view,
that the private respondents do not satisfy the pre-condition of valid
appointment expressed therein, inasmuch as, it was imperative for the
Selection Committee, in the first instance, to consider only those
candidates who possessed the qualification of JBT/ETT, and thereupon, posts
that remained unfilled could be filled up with persons possessing higher
qualifications, i.e., graduate/post graduate qualifications along with
B.Ed.. That was not the procedure which came to be adopted in the present
controversy. Therefore per se, no benefit can flow to the private
respondents, from the government instructions relied upon by the learned
counsel. Be that as it may, it needs to be emphasised, that para 6 of the
Government Instructions dated 20.12.1995, are in clear violation of the
statutory process of selection and appointment postulated under the 1981
Rules. Even if the above Government Instructions would have bestowed
validity on the selection process, through which the private respondents
came to be appointed, the same could not have been acceded to, since
Government Instructions in violation of the statutory rules, are a nullity
in law. In view of the foregoing reasons, it is not possible for us to
bestow legitimacy/legality to the appointment of the respondents as JBT/ETT
teachers.
For the reasons recorded hereinabove, we are satisfied that the
impugned order passed by the High Court dated 2.7.2007 is liable to be set
aside. The same is accordingly hereby set aside.
We were informed, that the private respondents came to be
appointed by the Management of the Doaba Arya Senior Secondary School,
Nawanshahr, in the year 2002. We were also informed, that the private
respondents have continued to be in the employment of the Doaba Arya Senior
Secondary School, Nawanshahr, till date. No fault whatsoever lies with the
private respondents. The fault, if at all, lies with the Management of
the Doaba Arya Senior Secondary School, Nawanshahr. Unfortunately, the
Management of the Doaba Arya Senior Secondary School, Nawanshahr, issued an
advertisement in violation of the 1981 Rules. The procedure depicted in
the 1981 Rules was also not followed while making appointments, to the six
vacant posts of JBT/ETT teachers. The Management had required the private
respondents to discharge their duties, without the prior approval of the
State Government. The Management should therefore bear the responsibility
of shouldering the emoluments payable to the private respondents. We
therefore, hereby direct the Management of the Doaba Arya Senior Secondary
School, Nawanshahr to pay all emoluments (if the same are still unpaid) to
the private respondents, within two months from the date of receipt of a
certified copy of this order.
The instant civil appeals are accordingly allowed in the above
terms. As a sequel to the above, all pending interlocutory
applications are disposed of.
Civil Appeal Nos. 7970-7971 of 2009
It is not a matter of dispute that the controversy in the
present civil appeals is identical to the one adjudicated upon by us in the
case of State of Punjab and others vs. Anita and others (Civil Appeal
Nos.7983-7986 of 2009) decided on 24.09.2014.
In view of the above, the instant civil appeals are also
allowed in the same terms.
…..........................J.
[JAGDISH SINGH KHEHAR]
NEW DELHI; …..........................J.
SEPTEMBER 24, 2014. [ARUN MISHRA]
ITEM NO.104 COURT NO.7 SECTION IV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 7983-7986/2009
STATE OF PUNJAB & ORS. Appellant(s)
VERSUS
ANITA AND ORS Respondent(s)
(with appln(s) for exemption from filing OT and application for transposing
and impleadment of non-official appellants as respondents)
WITH
C.A. No. 7970-7971/2009
(With Office Report)
Date : 24/09/2014 These appeals were called on for hearing
today.
CORAM :
HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR
HON'BLE MR. JUSTICE ARUN MISHRA
For Appellant(s) Mr. Sanchar Anand, AAG
Mr. Piyush Hands, Adv.
for Mr. Kuldip Singh,AOR(NP)
for Mr. Ajay Pal,AOR(NP)
For Respondent(s) Mr. A.V. Palli, Adv.
Mr. Anupanm Raina, Adv.
for Mrs. Rekha Palli,AOR(NP)
Ms. S. Janani,Adv.
Mr. Deepak Goel, Adv.
UPON hearing the counsel the Court made the following
O R D E R
The appeals are allowed in terms of the Reportable Signed
Judgment, which is placed on the file.
All pending interlocutory applications are disposed of.
(Parveen Kr. Chawla) (Phoolan Wati Arora)
Court Master Assistant Registrar
Wanted following dedicated, talented, trained and experienced teachers
against six vacant JBT/ETT aided posts preferably one M.A. English, one
M.Sc. Chem., One M.Sc. Bio, M.Com., one M.Sc. Maths, one M.A. Eco and one
Watchman. Apply Principal afresh within ten days alongwith testimonials.
Reservation exists as per Govt. rules.
Sd/-
Principal, Doaba Arya Sr. Sec. School,
Nawanshahr. =
The private respondents were selected against the six
advertised posts, by the Managing Committee of the above school. Despite
their selection and consequential appointment, the State Government did not accord its approval.=
It is therefore, that the District Education Officer,
Nawanshahr (hereinafter referred to as the 'DEO') passed an order dated
04.4.2005, declining the claim of the private respondents. A perusal of
the speaking order passed by the DEO, inter alia, reveals, that the private
respondents had been appointed in violation of the statutory rules
regulating appointments to privately managed recognised schools. It was
also indicated in the order dated 04.4.2005, that the selection process was
not in consonance with the statutory rules.
The order passed by the DEO dated 04.4.2005 was assailed by the
private respondents before the High Court by filing Civil Writ Petition
No. 15599 of 2006.=
we are of the view,
that the private respondents do not satisfy the pre-condition of valid
appointment expressed therein, inasmuch as, it was imperative for the
Selection Committee, in the first instance, to consider only those
candidates who possessed the qualification of JBT/ETT, and thereupon, posts
that remained unfilled could be filled up with persons possessing higher
qualifications, i.e., graduate/post graduate qualifications along with
B.Ed.. That was not the procedure which came to be adopted in the present
controversy. Therefore per se, no benefit can flow to the private
respondents, from the government instructions relied upon by the learned
counsel. Be that as it may, it needs to be emphasised, that para 6 of the
Government Instructions dated 20.12.1995, are in clear violation of the
statutory process of selection and appointment postulated under the 1981
Rules. Even if the above Government Instructions would have bestowed
validity on the selection process, through which the private respondents
came to be appointed, the same could not have been acceded to, since
Government Instructions in violation of the statutory rules, are a nullity
in law. In view of the foregoing reasons, it is not possible for us to
bestow legitimacy/legality to the appointment of the respondents as JBT/ETT
teachers.
For the reasons recorded hereinabove, we are satisfied that the
impugned order passed by the High Court dated 2.7.2007 is liable to be set
aside. The same is accordingly hereby set aside.
We were informed, that the private respondents came to be
appointed by the Management of the Doaba Arya Senior Secondary School,
Nawanshahr, in the year 2002. We were also informed, that the private
respondents have continued to be in the employment of the Doaba Arya Senior
Secondary School, Nawanshahr, till date. No fault whatsoever lies with the
private respondents. The fault, if at all, lies with the Management of
the Doaba Arya Senior Secondary School, Nawanshahr. Unfortunately, the
Management of the Doaba Arya Senior Secondary School, Nawanshahr, issued an advertisement in violation of the 1981 Rules. The procedure depicted in
the 1981 Rules was also not followed while making appointments, to the six
vacant posts of JBT/ETT teachers. The Management had required the private
respondents to discharge their duties, without the prior approval of the
State Government. The Management should therefore bear the responsibility
of shouldering the emoluments payable to the private respondents. We
therefore, hereby direct the Management of the Doaba Arya Senior Secondary
School, Nawanshahr to pay all emoluments (if the same are still unpaid) to
the private respondents, within two months from the date of receipt of a
certified copy of this order.
The instant civil appeals are accordingly allowed in the above
terms.
2014 - Sept.Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=42029
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.7983-7986 OF 2009
State of Punjab and others ..Appellants
versus
Anita and others ..Respondents
WITH
CIVIL APPEAL NOS.7970-7971 OF 2009
J U D G M E N T
J.S.KHEHAR, J.
The Management of the Doaba Arya Senior Secondary School,
Nawanshahr, issued an advertisement in the Indian Express dated 25.05.2002,
inviting applications for six vacant posts of JBT/ETT teachers. Since the
controversy, being adjudicated upon, is substantially to be determined on
the basis of the contents of the advertisement, the above advertisement
dated 25.05.2002 is being extracted hereunder:
“Doaba Arya Senior Secondary School, Nawanshahr
Wanted following dedicated, talented, trained and experienced teachers
against six vacant JBT/ETT aided posts preferably one M.A. English, one
M.Sc. Chem., One M.Sc. Bio, M.Com., one M.Sc. Maths, one M.A. Eco and one
Watchman. Apply Principal afresh within ten days alongwith testimonials.
Reservation exists as per Govt. rules.
Sd/-
Principal, Doaba Arya Sr. Sec. School,
Nawanshahr.
The private respondents were selected against the six
advertised posts, by the Managing Committee of the above school. Despite
their selection and consequential appointment, the State Government did not accord its approval. It is in the aforesaid circumstances, that the private
respondents, i.e., the selected JBT/ETT teachers issue a notice dated
1.2.2004, wherein they sought approval of the State Government, as also,
wages for the period they had been discharging their duties. Since, they
did not receive any response to the legal notice dated 1.2.2004, the
private respondents approached the High Court of Punjab and Haryana at
Chandigarh (hereinafter referred to as the 'High Court') by filing Civil
Writ Petition No.6789 of 2004. Rather than examining the merits of the
controversy, the High Court by its order dated 27.04.2004, required the
State Government to take a decision on the legal notice, issued by the
private respondents. It is therefore, that the District Education Officer,
Nawanshahr (hereinafter referred to as the 'DEO') passed an order dated
04.4.2005, declining the claim of the private respondents. A perusal of
the speaking order passed by the DEO, inter alia, reveals, that the private
respondents had been appointed in violation of the statutory rules
regulating appointments to privately managed recognised schools. It was
also indicated in the order dated 04.4.2005, that the selection process was
not in consonance with the statutory rules.
The order passed by the DEO dated 04.4.2005 was assailed by the
private respondents before the High Court by filing Civil Writ Petition
No. 15599 of 2006. The same came to be allowed by the impugned order dated
2.7.2007. A perusal of the impugned order reveals, that the High Court
emphatically placed reliance on an earlier litigation in respect of the
same selection process, wherein a Division Bench of the High Court, while
disposing of civil writ petition No. 13979 of 2002 (by order dated
16.2.2004), had found the petitioner therein not possessing superior
qualifications to the private respondent no.4, whose selection was sought
to be assailed. The High Court had also, while disposing of civil writ
petition no.13979 of 2002, rejected the contention advanced at the hands of
the petitioner therein, that the process of selection was vitiated on
account of bias.
Since the order passed in civil writ petition no. 13979 of 2002
was affirmed by this Court, the special leave petition filed against the
said order before this Court was dismissed. The High Court inferred from
the above dismissal, that the selection process had been approved by this
Court.
We will first endeavour to deal with the basis adopted by the
High Court in affirming the selection process of the private respondents,
consequent whereof they came to be appointed as JBT/ETT teachers. It would
be relevant to mention, that the qualifications prescribed for the
advertised JBT/ETT posts were not at all the subject matter of
consideration in writ petition no. 13979 of 2002, nor was the selection
process a matter for consideration. In the above view, it was not proper
for the High Court to approve the selection process, by which the six
private respondents came to be appointed as JBT/ETT teachers. Moreover,
the issues which are now raised were not examined by the High Court, or by
this Court, during the previous litigation. We are, therefore, of the
considered view, that the High Court should have addressed the pointed
questions raised before it, while examining the legality of the order
passed by the DEO dated 04.4.2005. Unfortunately, the High Court did not
deal with any of the reasons recorded by the DEO (while rejecting the claim
raised by the private respondents).
We shall now deal with the pointed issues recorded by the DEO
in his order dated 04.4.2005. It is not a matter of dispute, that insofar
as the selection and appointments to privately managed recognised schools
in the State of Punjab is concerned, the same are regulated by the Punjab
Privately Managed Recognised Schools Employees (Security of Service) Rules,
1981 (hereinafter referred to as the '1981 Rules'). Rule 6 of the
aforesaid Rules lays down the qualifications for different posts, and Rule
7 the manner/method of appointment. Rules 6 and 7 of the 1981 Rules are
reproduced hereunder:
“6. Qualification – (1) No person shall be appointed to an aided post,
unless he possess the qualifications and experience as specified against
that post in the Appendix to these rules.
(2) Unless otherwise specified in the Appendix to these rules, an employee
who has not attained the knowledge of Hindi and Punjabi language of
matriculation standard or its equivalent, shall have to acquire the same
within a period of two years from the date of his appointment of the
commencement of these rules, whichever is earlier, failing which he shall
not earn his first grade increments till he acquires such knowledge when
the increments shall be released retrospectively :
Provided that he shall not be entitled to get arrears of the released grade
increments for the period during which he could not acquire the aforesaid
knowledge.
7. Appointing authority and method of appointment – All appointments to the
aided posts shall be made by the managing committee in the following
manner:
(i) Appointing authority shall advertise in both English and vernacular
daily newspapers in the State, vacancy or vacancies to be filled in by
giving full particulars thereof including the requisite qualifications,
number of vacancies to be filled in and the last date by which the
applications may be submitted;
(ii) The recommendations for appointment of the candidates shall be made by
a sub-committee consisting five members of the managing committee.
(2) The members of the sub-committee shall be appointed by the managing
committee.”
A perusal of Rule 6 reveals, that qualifications for posts under the
purview of the 1981 Rules have been expressed in the appendix to the 1981
Rules. Insofar as the post of JBT teacher is concerned, the same figures at
serial no.10 of the appendix, wherein the prescribed qualifications are as
under:
APPENDIX
(See Rule 6)
|Serial |Designation of Post |Qualifications and experiences |
|No. | | |
|1 |2 |3 |
|10. |J.B.T. Teacher |(i) Martic with two years course in |
| | |J.B.T. Training; and |
| | | |
| | |(ii) Knowledge of Punjabi and Hindi |
| | |Language of Matriculation Standard or|
| | |its equivalent. |
Under the 1981 Rules, for the post of JBT teachers, the prescribed
qualification is, matriculation with two years course in JBT training. In
addition thereto, a candidate should have knowledge of Punjabi and Hindi
language of matriculation standard, or its equivalent.
The issue which requires our consideration is, whether the
advertisement issued by the Doaba Arya Senior Secondary School, Nawanshahr,
had invited applications by truly reflecting the prescribed qualifications,
and also whether, the private respondents possess the qualification
prescribed for the post of JBT/ETT teachers, which was advertised on
25.2.2002.
While examining the advertisement, which has been extracted
hereinabove, we are satisfied that applications were not invited from
candidates possessing the qualification depicted in the appendix to the
1981 Rules, pertaining to the posts of JBT/ETT teachers. It is also
apparent, that none of the private respondents possess the qualification of
JBT/ETT, and as such, none of them can be stated to be possessed of
qualifications statutorily prescribed and delineated in the appendix of the
1981 Rules. None of the private respondents was therefore per se eligible
for appointment to the posts of JBT/ETT teachers. This was one of the
pointed reasons why the State Government did not grant its approval to the
selection and appointment of the private respondents. In our considered
view, no infirmity can be found in the aforesaid determination at the hands
of the State Government.
Insofar as the issue in hand is concerned, reference may be
made to the decision rendered by this Court in P.M. Latha and another vs.
State of Kerala and others (2003) 3 SCC 541, wherein this Court held as
under:
We find absolutely no force in the argument advances by the respondents
that BEd qualification is a higher qualification than TTC and therefore the
BEd candidates should be held to be eligible to compete for the post. On
behalf of the appellants, it is pointed out before us that Trained
Teacher's Certificate is given to teachers specially trained to teach small
children in primary classes whereas for BEd degree, the training imparted
is to teach students of classes above primary. BEd degree-holders,
therefore, cannot necessarily be held to be holding qualification suitable
for appointment as teachers in primary schools. Whether for a particular
post, the source of recruitment should be from the candidates with TTC
qualification or BEd qualification, is a matter of recruitment policy. We
find sufficient logic and justification in the State prescribing
qualification for the post of primary teachers as only TTC and not BEd.
Whether BEd qualification can also be prescribed for primary teachers is a
question to be considered by the authorities concerned but we cannot
consider BEd candidates, for the present vacancies advertised, as
eligible.”
(emphasis is ours)
Reference may also be made to the decision rendered by this Court in Yogesh
Kumar and others vs. Government of NCT of Delhi and others (2003) 3 SCC
548, wherein this Court held as under:
“The Division Bench of the Delhi High Court in the impugned judgment has
dealt with the above two arguments in great detail. In our considered
opinion, it has rightly come to the conclusion that BEd qualification,
although a well-recognised qualification in the field of teaching and
education being not prescribed in the advertisement, only some of the BEd
candidates who took a chance to apply for the post cannot be given entry in
the field of selection. We also find that the High Court rightly came to
the conclusion that teacher training imparted to teachers for BEd course
equips them for teaching higher classes. A specialized training given to
teachers for teaching small children at primary level cannot be compared
with training given for awarding BEd degree. Merely because primary
teachers can also earn promotion to the post of teachers to teach higher
classes and for which BEd is the prescribed qualification, it cannot be
held that BEd is a higher qualification than TTC. Looking to the different
nature of TTC qualification, the High Court rightly held that it is not
comparable with BEd degree qualification and the latter cannot be treated
as higher qualification to the former.”
(emphasis is ours)
A perusal of the aforesaid judgments leave no room for any doubt, that it
is imperative for candidates to possess the statutory qualification
prescribed for appointment to the posts, to which they are seeking
appointment. In view of the position declared by this Court,
qualifications of B.Ed and other qualifications possessed by the private
respondents, namely, M.A., M.Sc, M.Com. Etc. cannot be treated as higher
qualifications with reference to the prescribed qualifications(JBT/ETT).
We, therefore, find the reasons recorded by the DEO in the impugned order
dated 04.4.2005 were fully justified, and in consonance with the legal
position declared by this Court, as has been noticed hereinabove.
To be fair to the learned counsel for the private respondents,
we may also make a reference to the decision rendered by this Court in
Jyoti K.K. and others vs. Kerala Public Service Commission and others
(2010) 15 SCC 596. Learned counsel had invited our attention to paragraph
7 thereof, wherein it was observed as under:
“It is no doubt true, as stated by the High Court that when a qualification
has been set out under the relevant Rules, the same cannot be in any manner
whittled down and a different qualification cannot be adopted. The High
Court is also justified in stating that the higher qualification must
clearly indicate or presuppose the acquisition of the lower qualifications
prescribed for the post shall also be sufficient for the post. If a person
has acquired higher qualifications in the same Faculty, such qualifications
can certainly be stated to presuppose the acquisition of the lower
qualifications prescribed for the post. In the case it may not be necessary
to seek far.”
(emphasis is ours)
It is no doubt true, that this Court held in the afore-stated judgment,
that if a person had acquired higher qualifications in the same faculty,
such qualifications can certainly be stated to presuppose the acquisition
of the lower qualification. Possession of higher qualification would
therefore, according to learned counsel, make a candidate eligible for the
post, even though, the candidate does not possess the prescribed
qualification. The question however is, whether the above position can be
applied to the present case?
It was sought to be asserted on the basis of the aforesaid
observations, that since the private respondents possess higher
qualifications, then the qualification of JBT/ETT, they should be treated
as having fulfilled the qualification stipulated for the posts of JBT/ETT
teachers. It is not possible for us to accept the aforesaid submission of
the learned counsel for the private respondents, because the statutory
rules which were taken into consideration by this Court while recording the
aforesaid observations in Jyoti K.K.'s case (supra), permitted the
aforesaid course. The statutory rule, in the decision relied on by the
learned counsel for the private respondents, is extracted hereunder:
6. Rule 10(a)(ii) reads as follows :
“10.(a)(ii) Notwithstanding anything contained in these Rules or in the
Special Rules, the qualifications recognised by executive orders or
standing orders of Government as equivalent to a qualification specified
for a post in the Special Rules and such of those higher qualifications
which presuppose the acquisition of the lower qualification prescribed for
the post shall also be sufficient for the post.”
(emphasis is ours)
A perusal of the rule clearly reveals, that the possession of higher
qualification would presuppose the acquisition of the lower qualification
prescribed for the posts. Insofar as the present controversy is concerned,
there is no similar statutory provision authorizing the appointment of
persons with higher qualifications. Moreover, in view of the decision
rendered by this Court in P.M. Latha's case (supra) and in Yogesh Kumar's
case (supra) lead to the clear an unambiguous conclusion that none of the
private respondents could be considered as eligible for selection or
appointment to the advertised posts of JBT/ETT teachers.
It is also necessary for us to take into consideration
Government Instructions dated 20.12.1995, which were relied upon by learned
counsel, so as to contend, that the private respondents who possess higher
qualifications including the qualifications depicted as preferential in the
advertisement, should be treated as eligible. Relevant extract of the
aforesaid Government Instructions dated 20.12.1995 is being reproduced
hereunder:
“6. Vide letter No.1/18/95-3Edu-7/20602, dated 14.09.1995 the Government
has taken the decision that in future the appointment of J.B.T. Teachers in
the Government Schools may be done in two parts. In first part the
candidates who are possessing the qualification of J.B.T./E.T.T. or
equivalent shall be considered. Thereafter, in case it emerges that,
J.B.T./E.T.T. qualified candidates are not available, in that event,
appointments may be made by adopting second part. It should be mentioned in
the advertisement, that in case candidates with J.B.T./E.T.T. or
equivalent qualification are not available, then candidates who have
graduation/post graduation qualifications with B.Ed. will also be
considered. But the candidates having qualification of graduation/post
graduation/ along with B.Ed. shall be paid the scale of J.B.T. only. In
such cases, an affidavit will be furnished by the candidates that after
selection, being graduates/post graduates candidates, will not claim any
other benefit or higher scale, and in this regard, at the time of sending
the requisition of posts, this shall also be incorporated in the
advertisement.”
Having given our thoughtful consideration to the submissions
advanced at the hands of the learned counsel for the private respondents,
based on the government instructions dated 20.12.1995, we are of the view,
that the private respondents do not satisfy the pre-condition of valid
appointment expressed therein, inasmuch as, it was imperative for the
Selection Committee, in the first instance, to consider only those
candidates who possessed the qualification of JBT/ETT, and thereupon, posts
that remained unfilled could be filled up with persons possessing higher
qualifications, i.e., graduate/post graduate qualifications along with
B.Ed.. That was not the procedure which came to be adopted in the present
controversy. Therefore per se, no benefit can flow to the private
respondents, from the government instructions relied upon by the learned
counsel. Be that as it may, it needs to be emphasised, that para 6 of the
Government Instructions dated 20.12.1995, are in clear violation of the
statutory process of selection and appointment postulated under the 1981
Rules. Even if the above Government Instructions would have bestowed
validity on the selection process, through which the private respondents
came to be appointed, the same could not have been acceded to, since
Government Instructions in violation of the statutory rules, are a nullity
in law. In view of the foregoing reasons, it is not possible for us to
bestow legitimacy/legality to the appointment of the respondents as JBT/ETT
teachers.
For the reasons recorded hereinabove, we are satisfied that the
impugned order passed by the High Court dated 2.7.2007 is liable to be set
aside. The same is accordingly hereby set aside.
We were informed, that the private respondents came to be
appointed by the Management of the Doaba Arya Senior Secondary School,
Nawanshahr, in the year 2002. We were also informed, that the private
respondents have continued to be in the employment of the Doaba Arya Senior
Secondary School, Nawanshahr, till date. No fault whatsoever lies with the
private respondents. The fault, if at all, lies with the Management of
the Doaba Arya Senior Secondary School, Nawanshahr. Unfortunately, the
Management of the Doaba Arya Senior Secondary School, Nawanshahr, issued an
advertisement in violation of the 1981 Rules. The procedure depicted in
the 1981 Rules was also not followed while making appointments, to the six
vacant posts of JBT/ETT teachers. The Management had required the private
respondents to discharge their duties, without the prior approval of the
State Government. The Management should therefore bear the responsibility
of shouldering the emoluments payable to the private respondents. We
therefore, hereby direct the Management of the Doaba Arya Senior Secondary
School, Nawanshahr to pay all emoluments (if the same are still unpaid) to
the private respondents, within two months from the date of receipt of a
certified copy of this order.
The instant civil appeals are accordingly allowed in the above
terms. As a sequel to the above, all pending interlocutory
applications are disposed of.
Civil Appeal Nos. 7970-7971 of 2009
It is not a matter of dispute that the controversy in the
present civil appeals is identical to the one adjudicated upon by us in the
case of State of Punjab and others vs. Anita and others (Civil Appeal
Nos.7983-7986 of 2009) decided on 24.09.2014.
In view of the above, the instant civil appeals are also
allowed in the same terms.
…..........................J.
[JAGDISH SINGH KHEHAR]
NEW DELHI; …..........................J.
SEPTEMBER 24, 2014. [ARUN MISHRA]
ITEM NO.104 COURT NO.7 SECTION IV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 7983-7986/2009
STATE OF PUNJAB & ORS. Appellant(s)
VERSUS
ANITA AND ORS Respondent(s)
(with appln(s) for exemption from filing OT and application for transposing
and impleadment of non-official appellants as respondents)
WITH
C.A. No. 7970-7971/2009
(With Office Report)
Date : 24/09/2014 These appeals were called on for hearing
today.
CORAM :
HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR
HON'BLE MR. JUSTICE ARUN MISHRA
For Appellant(s) Mr. Sanchar Anand, AAG
Mr. Piyush Hands, Adv.
for Mr. Kuldip Singh,AOR(NP)
for Mr. Ajay Pal,AOR(NP)
For Respondent(s) Mr. A.V. Palli, Adv.
Mr. Anupanm Raina, Adv.
for Mrs. Rekha Palli,AOR(NP)
Ms. S. Janani,Adv.
Mr. Deepak Goel, Adv.
UPON hearing the counsel the Court made the following
O R D E R
The appeals are allowed in terms of the Reportable Signed
Judgment, which is placed on the file.
All pending interlocutory applications are disposed of.
(Parveen Kr. Chawla) (Phoolan Wati Arora)
Court Master Assistant Registrar
