Holding

Appointments made in violation of mandatory statutory provisions are illegal and void; the State is not liable to pay salary, which may be claimed only from the school authorities under Section 70 of the Contract Act.

Summary

Seven teachers were appointed in a private‑management school without complying with the Andhra Pradesh Educational Institutions Rules, 1993 – no prior permission, no advertisement, and no approval of appointments. Their services were not approved and they received no salary, prompting writ petitions that the High Court ordered payment of wages. The State appealed, arguing that because the appointments violated mandatory statutory provisions, it bore no liability for salary. The Supreme Court held that appointments made in contravention of mandatory statutory rules are illegal and void, and the State cannot be held liable for salaries; however, the teachers are entitled to receive remuneration from the school authorities under Section 70 of the Indian Contract Act. The Court declined to regularise the illegal appointments, emphasizing the constitutional guarantees of equality under Articles 14 and 16. Consequently, the appeal was partly allowed, relieving the State of liability while leaving the school authorities to consider payment.

Issues considered

Whether the State is liable to pay salary to teachers appointed in violation of mandatory statutory recruitment rules.
Whether appointments made contrary to mandatory provisions of the Andhra Pradesh Educational Institutions Rules are illegal and void.
Whether the doctrine of quasi‑contract under Section 70 of the Indian Contract Act applies to claim salary from the State.
Whether the services of the teachers can be regularised despite the illegality of their appointments.

Legislation cited

Andhra Pradesh Education Act, 1982s. 20, s. 21, s. 79, s. 80, s. 83, s. 99
Constitution of Indias. 14, s. 16
Indian Contract Act, 1872s. 70

Subjects

Service lawIllegal appointmentStatutory recruitment rulesSalary liabilityQuasi‑contractEqual protectionArticle 14Article 16Andhra Pradesh Education ActIndian Contract ActRegularisation of service

Judgment

[2008] 7 S.C.R. 140

A GOVT. OF A.P. AND ORS.
v
K. BRAHMANANDAM AND ORS.
(Civil Appeal No.3043 of 2008)
APRIL 29, 2008
B
[S.B. SINHA AND LOKESHWAR SINGH PANTA, JJ.]

Service Law:
Andhra Pradesh Educational Institutions (Establishment,
c Recognition, Administration and Control of Schools Under
Private Managements) Rules, 1993 - Appointment of
Respondent-school teachers - Without following procedural
aspects laid down in the Rules - Services of Respondents
not approved - Nor were they paid any salary- They filed writ
D petition - High Court grnnted relief - Liability to bear financi?I
burden for payment of wages to Respondents - On State or
on the concerned school - Contention of Appellant-State that
""
it has no liability to pay salary of Respondents since their
services had not been approved - Held: Appointments made
E in violation of the mandatory provisions of a statute would be
illegal and, thus, void -· //legality cannot be regularized, only
an irregularity can be - Thus, question of regularizing the
services of RespondEmts does not arise -Respondents,
however, entitled to salary from school authorities as they
F worked even if no valid contract came into being - Salary
amount payable in terms of s. 70 of the Contract Act - Doctrine ~ '
of quasi-contract cannot be applied in a situation of this nature
as against the State - Andhra Pradesh Education Act, 1982 -
Constitution of India, 1950 - Arts.14 and 16 - Doctrines -
Doctrine of quasi-contract - Contract Act, 1872 - s. 70.
G
Respondents were appointed as school teachers.
Allegedly, provisions of the recruitment rules laid down
,\, -.
by G.O.Ms No.1 dated 1-1-1994 was not followed in the
recruitment process. The said rules i.e. the Andhra
I H 140
GOVT. OF A.P. AND ORS. v. K. BRAHMANANDAM AND 141
' ~ ORS.

Pradesh Educational Institutions (Establishment, A
Recognition, Administration and Control Of Schools
Under Private Managements) Rules, 1993 were framed by
the State in exercise of the power conferred upon it under
s.99 read with ss. 20, 21, 79, 80 and 83 of the Andhra
~
Pradesh Education Act, 1982. B
Respondents filed writ petitions before the High
Court contending that though they were appointed
through due selection process and had put up sufficient
length of service, neither their appointments were
approved nor they have been paid any salary till date. The c
\
High Court inter alia held that only because the procedural
aspects had not been followed as per the said GOMs No.
1 dated 1-1-1994, the same would not bar grant of relief in
favour of Respondents since they were working for
several years and furthermore possessed minimum D
"' qualification .
.. The question involved in the present appeal is
whether the State or the school concerned is liable to bear
the financial burden for payment of wages to the
Respondents. The contention of Appellant-State is that it E
J
has no liability to pay the salary of Respondents since
their services had not been approved.
A

Partly allowing the appeal, the Court
•-' ' HELD: 1. The liability of the State to pay salary to a F
~
teacher appointed in the recognized schools would arise
provided the provisions of the statutory rules are complied
with, subject to just exception. The right to claim salary
must arise under a contract or under a statute. If such a

- ~
right arises under a contract between the appointee and G
the institution, only the latter would be liable therefor. Its
right in certain situation to claim reimbursement of such
salary from the State would only arise in terms of the law
as was prevailing at the relevant time. If the State in terms
of the statute is not liable to pay the salary to the teachers, H
142 SUPREME COURT Fi:EPORTS [2008) 7 S.C.R

A no legal right accrues in favour of those who had been
appointed in violation of mandatory provisions of the
statute or statutory rules. [Para 11] [146-G; 147-A, B]
Ashok Kumar Yadav v. State of Haryana AIR 1987 SC
454 - referred to.
B
2. The equality clause contained in Articles 14 and
16 of the Constitution must b1~ scrupulously followed. The
Court ordinarily would not issue a writ of or in the nature
of mandamus for regularization of the service of the
c employee which would be violative of the constitutional
scheme. [Para 12J [147-8, CJ
3.1. Appointments made in violation of the mandatory
provisions of a statute would be illegal and, thus, void.
Illegality cannot be ratified. Illegality cannot be regularized,
D only an irregularity can be. [Para 13J [147-C, D]
3.2. The question of regularizing the services of the
respondents does not arise. Respondents, however, are
entitled to salary from the school authorities as they have
worked even if no valid contract had come into being. The
E salary amount would be payable in terms of Section 70 of
the Indian Contract Act. The principles of quasi-contract,
however, must apply keeping in view the relationship
between the parties. The doctrine of quasi-contract cannot
be applied in a situation of this nature as against the State.
r '
F [Para 18J [151-A, BJ
3.2. It would, however, be open to the school
authorities to take such action, as it may deem fit and
proper, in the light of the decision of this Court in Umadevi
G (3). * [Para 19] [151-C]
*Secretary, State of Karnataka and Others v. Umadevi
(3) and Others (2006) 4 SCC 1- followed.
Mineral Exploration Corporation Employees' Union v.
H Mineral Exploration Corporation. Ltd and Anr. (2006) 6 SCC
GOVT. OF A.P. AND ORS. v. K. BRAHMANANDAM AND 143
ORS. [S.B. SINHA, J.]

310; Municipal Corporation, Jabalpur v. Om Prakash Dubey A
(2007) 1 SCC 373; Punjab Water Supply & Sewerage Board
v Ranjodh Singh and Ors. etc. (2007) 2 SCC 491; Punjab
State Warehousing Corp., Chandigarh v. Manmohan Singh
and Anr. (2007) 3 SCALE 401 and Post Master General,
Kolk&ta & Ors. v. Tutu Oas (Dutta) (2007) 6 SCALE 453 - B
rnferred to.

CIVILAPPELLATE JURISDICTION: Civil Appeal No. 3043
of 2008.

From the final Judgment and Order dated 25.8.2005 of c
the High Court of Judicature, Andhra Pradesh at Hyderabad in
WA No. 1321 of 2001.

R. Sundraravardhan, D. Bharathi Reddy, Altaf Fatima and
Debojit Barkakoti for the Appellants.
D
G. Ramakrishna Prasad, Suyodhan Byrapaneni, Siddarth
Patnaik and G. Arun for the Respondents.

The Judgment of the Court was delivered by

S.B. SINHA, J. 1. Leave granted.
E
2. Whether the State or the Educational Institution is liable
to bear the financial burden for payment of wages to the
concerned respondents herein is the question involved in this
appeal which arises out of a judgment and order dated
~ 25.08.2005 passed by the High Court of Andhra Pradesh in F
' Writ Appeal No. 1321 of 2001.

3. Respondents, seven in number, were appointed as
Secondary Grade Teachers in Church of South India, UP
Elementary School. Allegedly, the provisions of the rules had
not been followed in recruiting the teachers. Indisputably, such G
.... rules of recruitment had been laid down by G.0.Ms. No. 1 dated
/"
1.01.1994. The said rules were framed by the State in exercise
of its power conferred upon it under Section 99 read with
Sections 20, 21, 79, 80 and 83 oftheAndhra Pradesh Education
Act, 1982 known as the Andhra Pradesh Educational Institutions H
144 SUPREME COURT REPORTS [2008) 7 S.C.R.

A (Establishment, Recognition, Administration and Control Of
Schools Under Private Managements) Rules, 1993 (for short
"the Rules").
4. The Rules categorized several schools; Upper Primary
Schools being one of them. The Rules defines the "Educational
8 Agency" in Rule 2(1){b) to mean "the Society/Trust/ Association
including Endowment, Board/ Wakf Board and Christian
Mission (Church/ Diocese or Congregation) and the like,
sponsoring/ managing/ running the schools". "Minority
Educational Institution" has been defined in Rule 2(f) of the Rules
C to mean "any educational agency of which at least 213rd
members belong to a religious I linguistic minority".
5. Rule 7 of the Rules provides for scrutiny and grant of
permission on an application filed therefor by the institution in
D question. Rule 9 provides for the manner in which recognition
can be granted. Rule 10 provides for the conditions for grant of
permission and recognition. Rule 12 provides for the
appointment of staff. Sub·-Rule (3) of Rule 12 mandates that
advertisement for recruitment shall be made at least in two
newspapers having large circulation. The Employment
E Exchange is also required to be notified in regard to the
vacancies. A Staff Selection Committee constituted for
undertaking the recruitment process is to consist of a nominee
of the District Educational Officer not below the rank of Deputy
Educational Officer. Sub--Rule (8) of Rule 12 provides that all
F appointments should be subject to the approval of the competent ) "
authority.
6. It is stated that the management of the institution, before
the recruitment of the respondents, neither obtained any prior
G permission from the District Educational Officer nor made
advertisement in two newspapers nor notified the vacancies to
the Employment Exchange. Even no order of approval as
. regards the said appointments was obtained from the District
Education Officer.
H The State contends that the selection process had been
GOVT. OF A.P. AND ORS. v. K. BRAHMANANDAM AND 145
ORS. [S.S. SINHA, J.]
·~
~
undergone hurriedly, which created a lot of suspicion. A
Respondents, however, contend that they were appointed
as Secondary Grade Teachers at different places through due
selection process and they had been performing their duties to
the utmost satisfaction of the authorities of the concerned
schools. Indisputably, their salaries had not been paid. They B
made representations therefor. Their representations were
rejected by the District Education Officer by an order dated
10.12.1999.

7. Respondents thereafter filed writ petitions before the c
High Court. The State filed a counter affidavit wherein it was
inter alia contended that the writ petitioners - respondents had
been appointed through side door(s) by the then Correspondent
Rev. Prasad Rao in collusion with the teachers concerned as
also the then Education Officer.
D
A learned Single Judge of the High Court relying on the
"· principles laid down by this Court in Ashok Kumar Yadav v.
State of Haryana [AIR 1987 SC 454] as also on the premise
that the said respondents have been working for several years
and as furthermore they possessed minimum qualification held E
that only because the procedural aspects had not been followed
• as per the said GOMs No. 1 dated 1.01.1994 and other
directions from time to time, the same would not be a bar for
grant of relief in their favour, stating:
"In my considered view, the same principle will also apply F
~ "
to the facts of this case. Admittedly, the petitioners are
continuing in service for more than 8 years and it would be
inequitable to disturb them at this distance of time."
8. On an intra court appeal having been filed, a Division
G
Bench of the said Court dismissed the appeal, stating :
.~
"The main grievance of the respondents is that though
they were appointed as Secondary Grade Teachers,
through due selection process, neither their appointments
were approved nor they were paid any salary till date. In H
146 SUPREME COURT F~EPORTS [2008] 7 S.C.R.

A earlier round of litigation, in W.P. No. 9616 of 1995, this
court directed the authorities concerned to consider the
proposals sent by the Management on 1.4.1996 and take
appropriate decision. In pursuance thereof, the fourth
·appellant passed orders on 10.12.1999 rejecting the
B cases for approval. The case of the respondents is that
they have put up sufficient length of service. The learned
Single Judge placed reliance on the Judgment cited supra
and held that it would bE! unjust to disturb the respondents
after eight years of service and accordingly set aside the
c impugned order passed by the fourth appellant. In the above
background of the case, we are of the opinion that the
learned Single Judge has arrived at a just conclusion and
the same, in our considered opinion, deserves no
interference."
D 9. Mr. R. Sundraravardhan, learned senior counsel
appearing on behalf of the appellants, would submit that the
State has no liability to pay the salary of the concerned teachers
keeping in view the fact that their services had not been
approved. The learned counsel would further contend that it is
E not even a case where paragraph 53 of the Constitution Bench
decision of this Court in Secretary, State of Karnataka and
Others v Umadevi (3) and Others [(2006) 4 SCC 1] would apply. '
10 Mr. G. Ramakrishna Prasad, learned counsel
appearing on behalf of the respondents, on the other hand,
F would contend that in view of passage of time and particularly
in view of the fact that the respondents had been continuing to
work for a long time, this Court should not interfere with the
impugned judgment.
G 11. The liability of the State to pay salary to a teacher
appointed in the recogniz:ed schools would arise provided the
provisions of the statutory rules are complied with, subject to
just exception. The right to claim salary must arise under a
contract or under a statute. If such a right arises under a contract
between the appointee and the institution, only the latter would
H
GOVT. OF A.P. AND ORS. v. K. BRAHMANANDAM AND 147
ORS. [S.B. SINHA, J.]

-l
•
' be liable therefor. Its right in certain situation to claim A
reimbursement of such salary from the State would only arise in
terms of the law as was prevailing at the relevant time. If the
State in terms of the statute is not liable to pay the salary to the
teachers, no legal right accrues in favour of those who had been
appointed in violation of mandatory provisions of the statute or B
-~
statutory rules.

12. The equality clause contained in Articles 14 and 16 of
the Constitution of India, it is trite, must be scrupulously followed.
The court ordinarily would not issue a writ of or in the nature of
mandamus for regularization of the service of the employee c
which would be violative of the constitutional scheme.

13. Appointments made in violation of the mandatory
provisions of a statute would be illegal and, thus, void. Illegality
cannot be ratified. Illegality cannot be regularized, only an
D
irregularity can be.
The said legal principle has been enunciated by a
Constitution Bench of this Court in Umadevi (3) (supra), para
53 whereof reads as under:
"53. One aspect needs to be clarified. There may be cases E
where irregular appointments (not illegal appointments)
as explained in S. V Narayanappa, R.N. Nanjundappa
and B. N. Nagarajan and referred to in para 15 above, of
duly qualified persons in duly sanctioned vacant posts
might have been made and the employees have continued F
i
to work for ten years or more but without the intervention
of orders of the courts or of tribunals. The question of
regularisation of the services of such employees may have
to be considered on merits in the light of the principles
settled by this Court in the cases abovereferred to and in G
the light of this judgment. In that context, the Union of India,
~ the State Governments and their instrumentalities should
take steps to regularise as a one-time measure, the
services of such irregularly appointed, who have worked
for ten years or more in duly sanctioned posts but not H
148 SUPREME COURT REPORTS [2008) 7 S.C.R.

A under cover of orders of th1~ courts or of tribunals and l •
).
should further ensure that regular recruitments are
undertaken to fill those vacant sanctioned posts that
require to be filled up, in cases where temporary
employees or daily wagers are being now employed.
B The process must be set in motion within six months from
this date. We also clarify that regularisation, if any already
made, but not sub judice, need not be reopened based on
this judgment, but there shoulld be no further bypassing of
the constitutional requirement and regularising or making
c permanent, those not duly appointed as per the
constitutional scheme."
[Emphasis supplied]
14. We are not unmindful ofthefactthatthe said paragraph
has been interpreted differently by different Bench~s. Some
D
benches have remitted the matter back to the tribunal/authorities
for consideration of the matter afresh in the light of the said
observations, e.g., in Mineral Exploration Corporation
Employees' Union v. Mineral Exploration Corporation. Ltd. and
Anr. [(2006) 6 SCC 31 OJ, it was directed :
E
"We, therefore, direct the Tribunal to decide the claim of
the workmen of the Union strictly in accordance with and
in compliance with all the directions given in the judgment
by the Constitution Bench in Secy., State of Karnataka v.
F Umadevi (3) and in particular, paras 53 and 12 relied on
by the learned Senior Counsel appearing for the Union.
The Tribunal is directed to dispose of the matter afresh
within 9 months from the date of receipt of this judgment
without being influenced by any of the observations made
by us in this judgment. Both the parties are at liberty to
G
submit and furnish the details in regard to the names of
the workmen, nature of the work, pay scales and the wages
drawn by them from time to time and the transfers of the ' '
workmen made from time to time, from place to place and
otlier necessary and requisite details. The above details
H
GOVT. OF A.P. AND ORS. v. K. BRAHMANANDAM AND 149
ORS. [S.B. SINHA, J.]
.•
' shall be submitted within two months from the date of the
receipt of this judgment before the Tribunal."
A

15. On the other hand, in some of the cases, the said
paragraph, for example, in the decision of this Court in Municipal
Corporation, Jabalpur v. Om Prakash Dubey ((2007) 1 SCC
373] had been applied to the following effect: B
.•{

''The question which, thus, arises for consideration, would
be : Is there any distinction between 'irregular appointment'
and 'illegal appointment'? The distinction between the two
terms is apparent. In the event the appointment is made c
in total disregard of the constitutional scheme as also the
recruitment rules framed by the employer, which is State
within the meaning of Article 12 of the Constitution of India,
the recruitment would be an illegal one; whereas there
may be cases where, although, substantial compliance of
D
the constitutional scheme as also the rules have been
made, the appointment may be irregular in the sense that
some provisions of the rules might not have been strictly
adhered to."
[See also Punjab Water Supply & Sewerage Board v. E
Ranjodh Singh and Others etc. (2007) 2 SCC 491, Punjab
State Warehousing Corp., Chandigarh v. Manmohan Singh
and Anr., 2007 (3) SCALE 401 and Post Master General,
Kolkata & Others v. Tutu Das (Dutta) 2007 (6) SCALE 453]
16. In the light of the decision of this Court in Umadevi (3) F
~
(supra), para 53 thereof would be applicable subject to the
condition that the matter had not been pending before any court
or tribunal. Indisputably, the litigation between the parties was
pending since January, 2000. The institution's application for
approval of the said appointments had been rejected. Therefore, G
para 53 of Umadevi (3) (supra) has no application.
I
17. Even in relation to application of the concept of equal
pay for equal work, the Constitution Bench held:
"44. The concept of "equal pay for equal work" is different H
150 SUPREME COURT l~EPORTS [2008] 7 S.C.R.

A from the concept of conferring permanency on those who f ''
have been appointed on ad hoc basis, temporary basis,
or based on no process of selection as envisaged by the
rules. This Court has in various decisions applied the
principle of equal pay for equal work and has laid down
B the parameters for the application of that principle. The
decisions are rested on the concept of equality enshrined >·
in our Constitution in the light of the directive principles in
that behalf. But the acceptance of that principle cannot
lead to a position whme the court could direct that
c ·appointments made without following the due procedure
established by law, be deemed permanent or issue
directions to treat them as permanent. Doing so, would
be negation of the principle of equality of opportunity. The
power to make an order as is necessary for doing complete
justice in any cause or matter pending before this Court,
D
would not normally be used for giving the go-by to the
procedure established by law in the matter of public
employment. Take the situation arising in the cases before
us from the State of Karnataka. Therein, after Dharwad
decision the Government had issued repeated directions
E and mandatory orders that no temporary or ad hoc
employment or engagement be given. Some of the
authorities and departm13nts had ignored those directions
or defied those directions and had continued to give
employment, specifically interdicted by the orders issued
F by the executive. Some~ of the appointing officers have
even been punished for their defiance. It would not be just '
or proper to pass an order in exercise of jurisdiction under
Article 226 or 32 of the Constitution or in exercise of power
under Article 142 of the Constitution permitting those
G persons engaged, to be absorbed or to be made
permanent, based on their appointments or engagements.
Complete justice would be justice according to law and ~

though it would be open to this Court to mould the relief,
this Court would not grant a relief which would amount to
H perpetuating an illegality."
GOVT. OF A.P. AND ORS. v. K. BRAHMANANDAM AND 151
ORS. [S.S. SINHA, J.]

18. In view of the decision in Umadevi (3) (supra), we are A
of the opinion that the question of regularizing the services of
the respondents does not arise. Respondents - writ petitioners
(teachers), however, are entitled to salary from the school
authorities as they have worked even if no valid contract had
come into being. The salary amount would be payable in terms s
of Section 70 of the Indian Contract Act. The principles of quasi-
contract, however, must apply keeping in view the relationship
between the parties. The doctrine of quasi-contract cannot be
applied in a situation of this nature as against the State.

19. For the reasons aforementioned, the appeal is allowed C
to the aforementioned extent. It would, however, be open to the
school authorities to take such action, as it may deem fit and
proper, in the light of the decision of this Court in Umadevi (3)
(supra). No costs.
D
8.8.B. Appeal partly allowed.