1. Petitioners have undertaken Junior Basic Teacher training from Government DIETs in the academic Session 2008- 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 âThe 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 âThe Himachal Pradesh Gram Vidya Upasak Yojna 2001. It is also averred that the petition is premature. According to respondent No. 3, the petitioners have 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 âThe Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as âthe 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 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 âThe 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 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 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 @ Rs.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 @ Rs.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 âI 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 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 and 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 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 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 âState 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:
â5. 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.
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 makes it. 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 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 controlled by 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:
â6. 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. 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.â
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 âThe 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 are also required to pass TET examination. The whole concept of framing the Scheme by the State Government initially in 2001 when the âThe 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 âThe Himachal Pradesh Gram Vidya Ypasak Yojna 2001 or through Prathmik Sahayak Adhyapak/Primary Assistant Teacher (PAT) has lowered the standards of education.
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 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 âThe 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 Subsection (1) of Section 29 of the Act, has to take into consideration the following, namely:
(a) conformity with the values enshrined in the Constitution;
(b) all round development of the child;
(c) building up childs knowledge, potentiality and talent;
(d) development of physical and mental abilities to the fullest extent;
(e) learning through activities, discovery and exploration in a child friendly and child-centered manner;
(f) medium of instructions shall, as far as practicable, be in childs mother tongue;
(g) making the child free of fear, trauma and anxiety and helping the child to express views freely;
(h) Comprehensive and continuous evaluation of childs 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:
â30. 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 and the 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 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 paramount importance 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.â
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:
â20. 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. His involvement 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.â
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:
â12â¦â¦â¦â¦â¦â¦â¦â¦ 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 energized 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.........â
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 âchalk, talk and teachâ has to 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:
â10. 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.â
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:
â1. 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 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 non-fulfilment of the conditions specified in the National Council for Teacher Education Act, 1993 (for short, âthe 1993 Act) and the Regulations framed there-under 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 this field gives an impression that implementation of the provisions contained in the 1993 Act and the Regulations framed there-under 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.â
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 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 of Karnataka and others versus Umadevi (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:
â4. 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 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 purpose certain 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.
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 or making 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 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 term of 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, 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 made permanent, 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 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 his employment. 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 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 the light 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.â
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:
â3. 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, Article 16 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. 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 following the 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 public-employment. 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 ordinarily not proper for courts whether acting under Article 226 of the Constitution or under Article 32 of the Constitution, to direct absorption in permanent employment of those who have been engaged without following a due process of selection as envisaged by the constitutional scheme.
24. Their Lordships of the Honble Supreme Court in Indian Drugs and Pharmaceuticals Limited Versus Workmen, Indian Drugs and Pharmaceuticals Limited, (2007) 1 SCC 408 have laid down that the Court cannot direct continuation in service of a non-regular appointee. A casual or temporary employment is not an appointment to the post. The Court cannot create a post where none exists, nor issue directions to absorb or regularize temporary employees. Their Lordships have held as under:
â14. The distinction between a temporary employee and a permanent employee is well settled. Whereas a permanent employee has a right to the post, a temporary employee has no right to the post. It is only a permanent employee who has a right to continue in service till the age of superannuation (unless he is dismissed or removed after an inquiry, or his service is terminated due to some other valid reason earlier). As regards a temporary employee, there is no age of superannuation because he has no right to the post at all. Hence, it follows that no direction can be passed in the case of any temporary employee that he should be continued till the age of superannuation.
15. Similarly, no direction can be given that a daily wage employee should be paid salary of a regular employee vide State of Haryana vs. Tilak Raj 2003 (6) SCC 123. 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 and 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/or sanctioned 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 and others vs. State of Kerala and 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 and 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.
37. Creation and abolition of posts and regularization are a purely executive function vide P.U. Joshi vs. Accountant General, Ahmedabad and 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 be issued 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 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 and others, AIR 2005 SC 2179 (para 54).â
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:
â13. The 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 - 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.â
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:
â2. The short question which arises for consideration herein is as to whether the respondents herein having been appointed on an ad-hoc basis could 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 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 constitutional set 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.
92. In the light of what has been stated above, we deem it proper to clarify that the comments and observations made by the two-Judges Bench in U.P. State Electricity Board v. Pooran Chandra Pandey (supra) should be read as obiter and the same should neither be treated as binding by the High Courts, Tribunals and other judicial for as nor they should be relied upon or made basis for by passing the principles laid down by the Constitution Bench."
We feel bound by the observations made therein. Initial recruitment of the respondents being wholly illegal and contrary to the constitutional scheme of this country, the impugned judgment of the High Court cannot be upheld. It is set aside accordingly.â
28. Their Lordships of the Honble Supreme Court in Pinaki Chatterjee and others Vs. Union of India and others (2009) 5 Supreme Court Cases 193 have quashed the circular, dated 11.05.1973, on the ground that it was contrary to law laid down in Umadevis case. Their Lordships have held as under:
â10. Appellants, indisputably, were appointed as daily rated casual labourers for project work. The said project having been undertaken for electrification of Railways at Ranchi was a time bound one. It did not have its own cadre. Engagement of any casual labour under the said project, therefore, did not amount to any regular recruitment. It may be that the Railway Administration had committed serious illegalities in making recruitment directly to the said posts, the same by itself would not confer any right upon the appellants for being regularized in Group `C' post.
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 power of 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 and 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) 4 SCC 1 is retrospective in operation. Their Lordships have held as under:
â29. 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.â
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 the rules and the petitioners have the necessary locus standi to assail the same.
31. Their Lordships of the Honble Supreme Court in The University of Mysore Vs. C.D. Govinda Rao and another AIR 1965 Supreme Court 491 have held that quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. Their Lordships have held as under:
 â7. As Halsbury has observed: Halsbury's Laws of England, 3rd Ed. Vol., II, P. 145
"An information in the nature of a quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to enquire by what authority he supported his claim, in order that the right to the office or franchise might be determined." Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control 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 clear that 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:
â79. 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 any disqualification, 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 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 corporation or 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, (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 of fulfilling 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:
â22. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to 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. and Secy. to Govt. of Haryana.)â
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:
â105. 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 post is an administrative decision. The act of consultation is an executive act.
163. The summary of our aforementioned discussions is as under: â¦â¦â¦â¦â¦â¦
(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 purposeâ¦â¦..â
35. Accordingly, the writ petition is allowed. The respondent-State is directed to phase out the teachers appointed under âThe 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.