B.S. Chauhan and Dilip Gupta, JJ.
1. This Special Appeal has been filed against the interim order dated 27.7.2004 passed by a learned Judge of this Court in Writ Petition No. 27700 of 2004. While entertaining the petition, the Court had granted time to the respondents to file a counter-affidavit and also directed that in the meanwhile status quo with regard to the service of the petitioners and respondent No. 6 as prior to the passing of the impugned order dated 1.7.2004 shall be maintained and they shall be permitted to continue to work if they were already working prior to that date. It was further ordered that the question regarding payment of their salary shall be considered on the next date. The petition was directed to be listed in the week commencing 31st August, 2004.
2. The writ petition, out of which the present special appeal arises, had been filed for quashing the order dated 1.7.2004, passed by the Joint Director of Education, Agra, by which he had declined to grant approval to the appointments of the petitioners on the post of Assistant Teacher in the L. T. grade in the Chaharwati Inter College, Akola, district Agra (hereinafter referred to as the 'College'). By the same order, the Joint Director of Education had granted approval to the appointment of respondent No. 6-appellant on the post of Assistant Teacher in the L. T. grade in the College. A perusal of the records indicates that to fill up the short-term vacancies to the post of Assistant Teacher an advertisement was issued in the Daily newspapers in October/November, 1995. The writ petitioners, namely, Sahab Singh and Lakhan Singh claim to have been appointed as Assistant Teachers in the L.T. grade on 20.11.1995, by the Committee of Management through the Manager Sri Chhiddi Singh while Kaptan Singh (Appellant-Respondent No. 6) and Anr. teacher, namely, Suresh Singh claim to have been appointed as Assistant Teacher in the L. T. grade by the Committee of Management through the Manager Sri Chandan Singh Verma by appointment letters of the same date i.e., 20.11.1995. The papers relating to the appointments of Sahab Singh and Lakhan Singh were sent to the District Inspector of Schools, Agra, for granting approval but the District Inspector of Schools, Agra, declined to grant approval by means of the order dated 27.1.1996. These two teachers filed two writ petitions in this Court being Writ Petition Nos. 4114 of 1996 and 4115 of 1996, which were disposed of on 7.2.1996 with a direction to the Deputy Director of Education to decide the matter. The Deputy Director of Education by an order dated 26.11.1996, refused to grant approval as a result of which another writ petition being Writ Petition No. 5381 of 1977 was filed by Sahab Singh and Lakhan Singh to challenge this order. The writ petition was allowed on 6.1.2003 and the matter was directed to be reconsidered by the District Inspector of Schools, Agra.
3. The District Inspector of Schools, Agra then passed an order dated 1.5.2003 refusing to grant approval to the appointment of these two teachers. This order was, therefore, challenged by the petitioners before this Court in Writ Petition No. 23678 of 2003, which was finally disposed of on 13.1.2004 with a direction to the Joint Director of Education to take a final decision in the matter after affording opportunity to all the candidates. Pursuant to the aforesaid order, the Joint Director of Education passed the order dated 1.7.2004 which was challenged in the petition out of which the present special appeal arises.
4. A perusal of the order dated 1.7.2004 of the Joint Director of Education indicates that he considered the cases of three teachers, namely, Lakhan Singh, Sahab Singh and Kaptan Singh and also examined the comments sent by the Manager and the District Inspector of Schools, Agra. The approval to the appointment of Sahab Singh and Lakhan Singh has not been granted on the ground that Chhiddi Singh was not the Manager of the Committee of Management on 20.11.1995 on which date the appointment letters had been issued and for this finding the Joint Director of Education placed reliance upon the interim order dated 3.7.1995, passed in Writ Petition No. 17453 of 1995 by which the attestation of signatures of Chhiddi Singh as Manager of the College by the District Inspector of Schools, Agra, on 27.6.1995 was stayed to the extent that the District Inspector of Schools, Agra, was to singly operate the joint account. From this interim order the Joint Director of Education concluded that Chhiddi Singh could not claim himself to be the Manager of the Committee of Management and, therefore, he could not issue the appointment letters on 20.11.1995. However, the Joint Director of Education granted financial approval to the appointment of Kaptan Singh on the ground that if Chhiddi Singh was not the Manager, then Chandan Singh Verma was the Manager and he had issued the appointment letter.
5. We have heard the learned counsel for the appellant and the learned counsel appearing for respondent No. 6 as also the learned standing counsel appearing for respondent Nos. 1 to 4.
6. Learned counsel for the appellant submitted that once the Joint Director of Education had granted financial approval to the appointment of Kaptan Singh, the learned Judge was not justified in passing an order that the question regarding payment of salary shall be considered on the next date of listing. Learned counsel appearing for the writ petitioners-respondent Nos. 6 and 7, however, submitted that the reasons assigned by the Joint Director of Education for not granting approval to the appointments of Sahab Singh and Lakhan Singh was contrary to the records since Chhiddi Singh was the Manager of the Committee of Management on the date the appointment letters were issued. He, therefore, submitted that the interim order passed by the learned Judge was justified in the facts and circumstances of the case.
7. Having heard the learned counsel for the parties, we are prima facie of the opinion that by means of the interim order dated 3.7.1995 in Writ Petition No. 17453 of 1995 the Court had merely ordered that account of the College would be operated by the District Inspector of Schools, Agra, only and, therefore, it cannot be gainsaid that Chhiddi Singh was not the Manager of the Committee of Management. Thus, prima facie, the view taken by the Joint Director of Education in not granting approval to the appointment of Sahab Singh and Lakhan Singh and granting approval to the appointment of Kaptan Singh does not appear to be correct. In such a situation, we are unable to interfere with the order of the learned Judge directing status quo to be maintained and further ordering the question of payment of salary to be considered on the next date of listing after exchange of the affidavits. All the three teachers claim to have been appointed on 20.11.1995 and there is nothing on the record to indicate that financial approval to the appointments was ever granted prior to 1.7.2004. In such a situation unless it is determined as to who was validly appointed, the question of payment of salary does not arise.
8. What is, however, worthy of notice in this case is that the appointments were made by the Committee of Management against short-term vacancies, which came into existence in the year 1995. It has been submitted that these short-term vacancies are still continuing and substantive appointments have not been made. This reveals a very sad state of affairs prevailing in the College. A short term vacancy, in our opinion, cannot continue to last for such a long period because this would be clearly in contravention of the provisions of the Uttar Pradesh Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as the 'Act'). The appointments are required to be made on the recommendation of the Board under Section 16 of the Act. Section 10 of the Act provides that for the purpose of making appointment of a teacher, by direct recruitment, the management shall determine the number of vacancies existing or likely to fall vacant during the year of recruitment and notify the vacancies to the Board in such manner and through such officer or authority as may be prescribed. In the instant case, the short-term vacancy came into existence in the year 1995 and there appears to be no reason as to why such short-term vacancies were allowed to continue for such a long period. It appears that the College authorities deliberately did not follow the procedure laid down in Section 10 of the Act for notifying the vacancies to the Board so that it could continue to take work from teachers appointed by them on short-term vacancies. Section 23 of the Act clearly provides punishment for failure to furnish such information if any person wilfully withholds or fails to furnish any return or information lawfully required by the Board within the time allowed.
9. It is settled law that when the action of the State or its instrumentalities is not as per the rules or regulations and supported by a statute, the Court must exercise its jurisdiction to declare such an act to be illegal and invalid.
10. In Sirsi Municipality v. Cecelia Kom Francis Tellis, AIR 1973 SC 855, the Supreme Court observed that 'the ratio is that the rules or the regulations are binding on the authorities.'
11. Similarly, a Constitution Bench of the Hon'ble Supreme Court in Sukhdev Singh and Ors. v. Bhagatram Sardar Singh Raghuvanshi and Anr., AIR 1975 SC 1331, has observed as under :
'The statutory authorities cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by Courts to invalidate actions in violation of rules and regulations. The existence of rules and regulations under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard. The statutory regulations in the cases under consideration give the employees a statutory status and impose restrictions on the employer and the employee with no option to vary the conditions..............In cases of statutory bodies there is no personal element whatsoever because of the impersonal character of statutory bodies........ the element of public employment or service and the support of statute require observance of rules and regulations. Failure to observe requirements by statutory bodies is enforced by Courts by declaring (action) in violation of rules and regulations to be void. This Court has repeatedly observed that whenever a man's rights are affected by decision taken under statutory powers, the Court would presume the existence of a duty to observe the rules of natural justice and compliance with rules and regulations imposed by statute.'
12. Similar view has been taken by the Supreme Court in Ambica Quarry Works etc. v. State of Gujarat and Ors., AIR 1987 SC 1073 and Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16. In both the cases, the Apex Court relied upon the judgment of the House of Lord in Julius v. Lord Bishop of Oxford, (1880) 5 AC 214, wherein it was observed as under :
'There may be something in the nature of thing empowered to be done, something in the object for which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so.'
13. In Commissioner of Police (supra), the Apex Court observed as under :
'Public authorities cannot play fast and loose with the powers vested in them, and persons to whose detriment orders are made are entitled to know with exactness and precision what they are expected to do or forbear from doing and exactly what authority is making the order............An enabling power of this kind conferred for public reasons and for the public benefit is, in our opinion, coupled with a duty to exercise it ' when the circumstances so demand. It is a duty which cannot be shirked or shelved nor can it be evaded, performance of it can be compelled.'
14. In Dr. Meera Massey v. Dr. S. R. Mehrotra and Ors., AIR 1998 SC 1153, the Apex Court observed as under :
'If the laws and principles are eroded by such institutions, it not only pollutes its functioning deteriorating its standard but also exhibits...........wrong channel adopted...........If there is any erosion or descending by those who control the activities all expectations and hopes are destroyed. If the institutions perform dedicated and sincere service with the highest morality it would not only up-lift many but bring back even a limping society to its normalcy.'
15. The Supreme Court has taken the same view in Ram Chand and Ors. v. Union of India and Ors., (1994) 1 SCC 44, and held that 'the exercise of power should not be made against the spirit of the provisions of the statute, otherwise it would tend towards arbitrariness.'
16. In Purshottam v. Chairman, Maharashtra State Electricity Board and Anr., (1999) 6 SCC 49, the Hon'ble Supreme Court has held that appointment should be made strictly in accordance with the statutory provisions and a candidate who is entitled for appointment, should not be denied the same on any pretext whatsoever as usurption of the post by somebody else in any circumstances is not possible.
17. A Constitution Bench of the Hon'ble Supreme Court in Ajit Singh (II) v. State of Punjab and Ors., (1999) 7 SCC 209, has observed as under :
'Article 14 and Article 16(1) are closely connected. They deal with the individual rights of the persons. Article 14 demands that 'State shall not deny to any person equality before the law or the equal protection of law.' Article 16(1) issues a positive command that 'there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.' It has been held repeatedly by this Court that Clause (1) of Article 16 is a facet of Article 14 that it takes its roots from Article 14. The said Clause particularizes the generality in Article 14 and identifies, in a Constitutional sense 'equality of opportunity' in matter of employment and appointment to any office under the State......The right to equal opportunity in the matter of promotion in the sense of a right to be 'considered' for promotion is, indeed, a fundamental right guaranteed under Article 16(1) and this has never been doubted in any case before Ashok Kumar Gupta v. State of U.P., (1997) 5 SCC 201, right from 1950.'
18. Thus, the right of consideration for appointment/ promotion is not merely a statutory right but is a fundamental right.
19. In Indra Sawhney II v. Union of India and Ors., AIR 2000 SC 498, the Hon'ble Supreme Court reiterated the law laid down by it time and again that Articles 14 and 16(1) of the Constitution of India provide for rule of equality which is the basic feature of the Constitution and, therefore, there can be no deviation from the principles enshrined therein while making the appointments. Rule of equality is an antithesis of any kind of arbitrariness or private gain, whim or caprice of any individual. Even if the State has the discretionary power to issue executive instructions, such discretion is coupled with the duty to act in a manner which will promote the object for which the power is conferred and also 'satisfy the mandatory requirement of the Statute.' (Vide A. P. Aggarwal v. Government (of N.C.T.) of Delhi and Ors., AIR 2000 SC 205. In Kumari Shrilekha Vidyarthi etc. etc. v. State of U.P. and Ors., AIR 1991 SC 537, the Apex Court held that every State act, in order to survive, must not be susceptible to vice of arbitrariness which is a crux of Article 14 of the Constitution and basis to the rule of law.
20. In Dr. M.A. Haque and Ors. v. Union of India and Ors.. (1993) 2 SCC 213, the Supreme Court observed as under:
'............... We cannot lose sight of the fact that the recruitment rules made under Article 309 of the Constitution have to be followed strictly and not in breach. If a disregard of the rules and bypassing of the Public Service Commissions are permitted, it will open a back-door for illegal recruitment without limit. In fact this Court has, of late, been witnessing a constant violation of the recruitment rules and a scant respect for the constitutional provisions requiring recruitment to the services through the Public Service Commissions. It appears that since this Court has in some cases permitted regularisation of the irregularly recruited employees, some Governments and authorities have increasingly resorted to irregular recruitments. The result had been that the recruitment rules and the Public Service Commissions have been kept in cold storage and candidates dictated by various considerations are being recruited as a matter of course.'
21. Deprecating the practice of making appointment de hors the Rules by the State or its instrumentalities in Dr. Arundhati A. Pargaonkar v. State of Maharashtra, AIR 1995 SC 962, the Court rejected the claim of the petitioner therein for regularisation on the ground of long continuous service observing as under :
'Nor the claim of the appellant, that she having worked as Lecturer without break for 9 years on the date the advertisement was issued, she should be deemed to have been regularised appears to be well founded. Eligibility and continuous working for howsoever long period should not be permitted to over-reach the law. Requirement of rules of selection.... cannot be substituted by humane considerations. Law must take its course.'
22. The Hon'ble Supreme Court in State of U.P. and Ors. v. U.P. State Law Officers Association and Ors., AIR 1994 SC 1654, observed as under :
'This being so those who come to be appointed by such arbitrary procedure can hardly complain if the termination of their appointment is equally arbitrary. Those who come by the back door have to go by the same door. ............... The fact that they are made by public bodies cannot vest them with additional sanctity. Every appointment made to a public office, howsoever made, is not necessarily vested with public sanctity. There is, therefore, no public interest involved in saving all appointments irrespective of their mode. From the inception some engagements and contracts may be the product of the operation of the spoiled system. There need be no legal anxiety to save them.'
23. Therefore, it is evident from the aforesaid judgments of the Hon'ble Apex Court that whenever any a.ction of the authority is in violation of the provisions of the statute or the action is constitutionally illegal, it cannot claim any sanctity in law, and there is no obligation on the part of the Court to sanctify such an illegal act. Wherever the statutory provision is ignored, the Court cannot become a silent spectator to such an illegal act, and it becomes the solemn duty of the Court to deal with the persons violating the law with heavy hands. (Vide R. N. Nanjundappa v. T. Thimmaiah and Anr., AIR 1972 SC 1767 ; B. N. Nagarajan and Ors. v. State of Karnataka and Ors., AIR 1979 SC 1676 ; Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi and Ors., AIR 1992 SC 789 ; State of Orissa v. Sukanti Mohapatra and Ors., AIR 1993 SC 1650 ; Jawahar Lal Nehru Krishi Vishwa Vidyalaya, Jabalpur, M.P. v. Bal Kishan Soni and Ors., (1997) 5 SCC 86 ; State of Himachal Pradesh v. Nodha Ram and Ors., AIR 1997 SC 1445 ; Ashwani Kumar and Ors. v. State of Bihar and Ors., AIR 1997 SC 1628 ; State of M.P. and Anr. v. Dharam Bir, (1998) 6 SCC 165 ; Municipal Corporation, Bilaspur and Anr. v. Veer Singh Rajput and Ors., (1998) 9 SCC 258 ; Nazira Begum Lashkar and Ors. v. State of Assam and Ors., AIR 2001 SC 102 ; Mrs. Dr. Chanchal Goyal v. State of Rajasthan, AIR 2003 SC 1713 ; M.D., U.P. Land Development Corporation and Anr. v. Amar Singh and Ors., AIR 2003 SC 2357 ; State of Haryana and Anr. v. Tilak Raj and Ors., 2003 (3) SCCD 1096 : AIR 2003 SC 2658 ; Haryana Tourism Corporation Ltd. v. Fakir Chand and Ors., AIR 2003 SC 4465 ; Sultan Sadik v. Sanjay Raj Subba and Ors., AIR 2004 SC 1377 ; and A. Umarani v. Registrar, Co-operative Societies and Ors., 2004 AIR SCW 4462).
In Ramniklal N. Bhutta and Anr. v. State of Maharashtra and Ors., AIR 1997 SC 1236, the Hon'ble Apex Court observed as under :
'The power under Article 226 is discretionary. It will be exercised only in furtherance of justice and not merely on the making out of a legal point ........ the interest of justice and public interest coalesce. They are very often one and the same ....... The Courts have to weigh the public interest vis-a-vis the private interest while exercising the powers under Article 226..... indeed any of their discretionary powers.'
24. As the learned counsel for the appellant raised a large number of issues and argued the appeal very vehemently, we had requested the Director of Higher Education, Uttar Pradesh to find out as to whether the vacancy occurred in 1995 had ever been notified to the Board and under what circumstances the ad hoc appointees were continuing for the last ten years. We find that often the ad hoc appointees, though have been appointed on short-term vacancies, in some cases are allowed to continue in service for a long time without notifying the vacancies to the Board so that they can claim regularisation after completing the required period of service. This can only happen with the collusion of the Committee of Management and the statutory authorities. In the present case the affidavit that has been filed by the statutory authority reveals that the vacancy which had occurred a decade ago had not been notified and when the authority concerned inquired from the Committee of Management, it was notified to the Board only on 20th September, 2004.
25. In this fact situation, admittedly, the Committee of Management had acted illegally and the appellant had been taking the benefit of a spoilt system, being a blue eyed boy of one of the rival Committee of Management. Continuation in service either of the appellant or the respondent Nos. 6 and 7 is admittedly in violation of the statutory provisions. The Committee of Management was under a legal obligation to notify the vacancy to the Board just after the vacancy occurred but it failed to perform its legal duty only to help the so called ad hoc appointees. Their continuation in service cannot be held to be in accordance with law. There is no obligation on the part of the Court to sanctify such illegal continuation and burden the public exchequer asking the State Authorities to make the payment of the salary to the persons who have been permitted to continue in service without notifying the vacancy to the Board. We fail to understand how the approval has been granted vide order dated 1.7.2004, after more than 9 years of the ad hoc appointments made on short-term vacancies in 1995. The order seems to have been passed by the statutory authority without application of mind and realising his responsibilities. He failed to discharge the obligation as required by the Statute.
26. We have no hesitation in holding that in such a factual situation, the State Government is not liable to make the payment of the salary to either of the appointees on short-term vacancies, who have deliberately been permitted to continue for about a decade in flagrant violation of the statutory provisions. If the so called ad hoc appointees on short-term vacancies feel aggrieved, they may claim the salary from the Committee of Management which had appointed them, but the State is not liable to make any payment of salary to them. We direct the educational authorities to proceed in accordance with law against the Committee of Management for not notifying the vacancy for about a decade.
27. With the above observations, the special appeal is disposed of.