STATE OF ORISSA & Anr. v. MAMATA MOHANTY

Judgment

2 S.C.R. 704 A B STATE OF ORISSA & ANR. v. MAMATA MOHANTY (CIVIL APPEAL NO. 1272 OF 2011 ETC.) FEBRUARY 9, 2011 [P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.] SERVICE LAW: C OR/SSA EDUCATION (RECRUITMENT AND CONDITIONS OF SERVICE OF TEACHERS AND MEMBERS OF THE STAFF OF AIDED EDUCATIONAL INSTITUTIONS) RULES, 1974 : Rules 2(1), 4 to 7 - Lecturers receiving grant-in-aid - D Claiming UGC pay scale w.e.f 1.1.1986, as per Notification dated 6.10.1989 - Writ petitions allowed by High Court placing reliance on earlier decisions - Held : Questions raised in instant appeals had never been considered by courts earlier - A teacher who had been appointed without E possessing the requisite qualification at initial stage, cannot get the benefit of grant-in-aid scheme unless he/she acquires the additional qualification and, therefore, question of grant of UGC pay scale would not arise unless such teacher acquires the additional qualification for benefit of grant-in-aid F scheme - However, terminating the services of those who had been appointed illegally and/or withdrawing the benefit of grant-in-aid scheme would not be desirable as a long period has elapsed - But, UGC pay scale cannot be granted prior to the date of acquisition of higher qualification - Delay/ G /aches -Constitution of India, 1950 - Articles 14, and 16 and 21 - Stare decisis - Rule of per incurium. CONSTITUTION OF IND/A, 1950 : H Article 226 - Writ petition - Limitation for filing of - Held 704 STATE OF ORISSA & ANR. v. MAMATA MOHANTY 705 ' : Doctrine of limitation being based on public policy is A applicable to writ petitions which may be dismissed at initial stage on ground of delay and /aches - Relief granted in similar case cannot furnish a proper explanation for delay/ /aches - Limitation Act, 1963 - s.3 Article 226 ..:. Writ petition - Held : Relief not founded on pleadings should not be granted - Relief - Pleadings. B Article 14 -Held : Does not envisage negative equality · -The principle also applies to judicial pronouncements ..:. Once the court comes to the conclusion that a wrong order · C has been passed, it becomes the solemn duty of the court to rectify the mistake. Articles 14 and 16 -Held: Even if names of candidates are requisitioned from Employment Exchange, in addition o thereto, it is mandatory on the part of employer to invite applications from open market by advertising the vacancies in newspapers having wide circulation or by announcement in Radio and Television -Service Law -Appointments. Article 14 and 16 - Relaxation or condoning of deficiency ·· E - Held : Granting relaxation subsequently amounts to change of criteria after issuance of advertisement and is violative of fundamental rights enshrined under Articles 14 and 16 of similarly situated persons who did not apply for want of eligibility - An appointment which is bad in inception does not F get sanctified at a later stage -Concept of adverse possession of lien on post or holding over are not applicable in service jurisprudence - A person not possessing the requisite qualification cannot hold the post nor can he approach the court as he does not have a right which can be enforced G through court - Service Law - Relaxation in eligibility. Article 21-A -Education -Held : It is not permissible for State while controlling education to impinge the standard of education -Paucity of funds cannot be a ground for State not H A 8 c 706 SUPREME COURT REPORTS (2011) 2 S.C.R. to provide quality education to its future citizens -Therefore, State provides grant-in-aid to private schools -However, while granting recognition and affiliation, it is mandatory to adhere to the conditions imposed which include the minimum eligibility for appointment of teaching staff -The selection of the most suitable persons is essential in order to maintain excellence and the standard of teaching - Service Law - Eligibility of teaching staff. CIRCULARS/GOVERNMENT ORDERS/ NOT/FICA TIONS: Circulars/Letters - Filing of in courts - HELD: Some of the Circulars/letters! orders filed in court may not be in conformity with law and may be violative of the mandatory provisions of the Constitution - Such circulars/letters cannot o be given effect to. STARE DEC/SIS : Rule of per incurium -Held : Courts have developed this principle in relaxation of the rule of stare decisis -Thus, the E "quotable in lawn is avoided and ignored if it is rendered in ignoratium of a statute or other binding authority - The judgments passed without noticing the judgments in Damodar Nayak and Bhanu Prasad Panda are held to be not of binding nature. F WORDS AND PHRASES : Expression 'per incurium' - Connotation of. Respondent No. 1 in CA No. 1272/2011 was G appointed as a Lecturer on 9.7.1979 and her appointment was approved by the Director of Higher Education. By order dated 18.12.1985 she was granted the benefit of receiving 1/3rd grant-in-aid Scheme. The Government of Orissa, by Notification dated 6.10.1989, revised the pay H scale enforceable with effect from 1.1.1986 as per the STATE OF ORISSA & ANR. v. MAMATA MOHANTY 707 ' ' I• recommendations of UGC. The Notification was A applicable only in cases where the post was granted the benefit of grant-in-aid Scheme by 1.4.1989 and the person manning that post must have a good academic record i.e. 54% or its equivalent grade in a Master's Course. The respondent filed a writ petition before the High Court on B 11.11.2005 seeking a direction from the State Government to pay her the revised pay scale as per Notification dated 6.10.1989 with effect from 1.1.1986 as had been granted by the High Court in OJC No. 3705 of 1987 and other similar cases. The writ petition was contested bythe c appellants on the ground that since the respondent had secured only 40% marks in her Master's Course, she was not eligible for appointment and her appoint~nt being not in consonance with law, remained illegal. The High Court, however, placing reliance on its earlier judgments, 0 allowed the writ petition .. Aggrieved, the State Government filed an appeal. Similarly, the other appeals were also filed. ' " It was contended for the respondents that the High Court had been dealing with the subject matter for a long E time and once SLPs against judgments of the High Court had been dismissed by the Supreme Court, in limine, judicial discipline and decorum would demand the Supreme Court to follow the same order and, therefore, the judgment impugned in the instant appeals did not F warrant any interference. On the other hand, it was contended for the appellants that factual and legal issues involved in the instant appeals had never been considered either by the High Court or by the Supreme Court. G The questions for consideration before the Court were : {i) whether the orders of the High Court could be given effect to or be considered by the courts to grant a relief to the persons whose appointments had been illegal for want of eligibility and for not following the H 708 SUPREME COURT REPORTS [20111 2 s.c.R. A procedure prescribed by law, i.e. advertisement, etc. and (ii) whether the delay and laches could be condoned all together giving the respondents the impetus of the earlier judgments in cases of persons who had been diligent enough to approach the court within a reasonable period. B Disposing of the appeals, the Court HELD: 1. The questions raised in the instant appeals had never been considered by any of the courts, however, they involve substantial questions of law of C public importance and, therefore, require proper adjudication. [para 11) [729-F]

#2. STATUTORY PROVISIONS - RELEVANT PARTS

#2. In view of the definition of 'University' in Rule 2(i) D of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974, "University" means all the four universities of Orissa, as enumerated in the Rules, namely, Utkal University, Behrampur University, E Sambalpur University and Sri Jagannath Sanskrit Vishwa Vidyalaya. The instant cases relate to Utkal University. It is the Selection Board constituted by the Government under Rule 4 of the Rules 1974, which could call the candidates for interview/tests and make the selection F according to merit [Rule 5). The Selection Board shall make the teachers available to individual colleges as per their need. Thus, the Committee of Management does not have a right to make the appointment of a teacher of its own. More so, under the Rules 1979, the teachers so G appointed are liable to be transferred throughout the State of Orissa even to a College which may be affiliated to any of the four Universities. [para 12) [731-D; 730-A; 731-D-F]

#3. EDUCATION : H

3.1. Education is the systematic instruction, STATE OF ORISSA & ANR. v. MAMATA MOHANTY 709 schooling or training given to the young persons in A preparation for the work of life. It also connotes the whole course of scholastic instruction which a person has received. Education connotes the process of training and developing the knowledge, skill, mind and character of· students by formal' schooling. The excellence of B · Instruction provided by an educational institution mainly depends directly on the excellence of the teaching staff. Therefore, unless they themselves possess a good academic record/minimum qualifications prescribed as an eligibility, it is beyond imagination of anyone that c standard of education can be maintained/enhanced. [para 14] [733-H; 734-A-C] The Sole Trustee Loka Shikshana · Trust v. The Commissioner of Income Tax, Mysore, AIR 1976 SC 10; Frank Anthony Public School Employees' Association v. D Union of India & Ors., AIR 1987 SC 311; Osmania University Teachers' Association v. State of Andhra Pradesh & Anr., AIR 1987 SC 2034; and Director (Studies), Dr. Ambedkar Institute of Hotel Management, Nutrition & Catering Technology, ' Chandigarh & Ors. v. Vaibhav Singh Chauhan, 2008 (15 ) E SCR 224 = (2009) 1 SCC 59); Meera Massey (Dr) v. S.R. Mehrotra (Dr) & Ors., AIR 1998 SC 1153 and Chandigarh Administration & Ors. v. Rajni Vali & Ors., AIR 2000 SC 634 -relied on Report of the University Education Commission, i.e., Radhakrishnan Commission; Report of the Committee on University Administration 1964(1967) - referred to F

3.2. Paucity of funds cannot be a ground for the State for not providing quality education to its future citizens. G It is for this reason that in order to maintain the standard of education, the State Government provides grant-in-aid to private schools to ensure the smooth running of the institution so that the standard of teaching may not suffer for want of funds. Article 21A of the Constitution of India H ; 710 SUPREME COURT REPORTS [2011] 2 S.C.R. A has been added by amending the Constitution with a view _ 1o facilitate the children to get proper and good quality of education. The selection of the most suitable persons is essential in order to maintain excellence and the standard of teaching. It is not permissible for the State that while controlling the education it may impinge the standard of education. [para 17] [736-C-G] B

3.3. This Court in Damodar Nayak has categorically held that a person cannot get the benefit of grant-in-aid unless he completes the deficiency of educational C qualification. Further, this Court in Dr. Bhanu Prasad Panda upheld the termination of services of the appellant therein for not possessing 55% marks in Master Course. [para 46{xii)] [752-D-E] D