Supreme Court of India
STATE OF ODISHA & ORS. ETC.ETCversusSULEKH CHANDRA PRADHAN ETC.ETC.
- Citation
- 2022 INSC 452
- Decided
- 20 April 2022
- Disposal
- Appeal(s) allowed
- Bench
- L NAGESWARA RAO
Holding
Appointments made in contravention of the Odisha Education Rules, 1974 are void ab initio and the Tribunal’s and High Court’s orders are set aside.
Summary
The State of Odisha and other respondents challenged the appointments of Hindi teachers in aided Middle English (M.E.) schools, arguing that the teachers were appointed without complying with the Odisha Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974. The teachers had been appointed directly by school managing committees to posts that were not sanctioned under the approved scheme of two posts per school (headmaster and trained matric teacher). The Odisha Administrative Tribunal allowed the teachers to continue as regular government servants, and the High Court dismissed the State’s writ petitions, prompting the State to file special leave petitions. The Supreme Court held that appointments made in contravention of statutory rules are void ab initio, that the Tribunal and High Court erred in ignoring earlier Tribunal orders and the law, and that a dismissal of a special leave petition does not merge the lower court’s view into law. Consequently, the Court set aside the Tribunal’s and High Court’s orders and dismissed the original applications filed by the teachers.
Issues considered
- The validity of appointments of Hindi teachers in aided M.E. schools made without following Rules 5 and 6 of the Odisha Education Rules, 1974.
- Whether the Tribunal’s and High Court’s decisions are binding despite earlier Tribunal orders and the dismissal of the special leave petition.
- Whether the appointments are void ab initio and the teachers are entitled to regular government service.
Legislation cited
Subjects
service lawappointmentaided educational institutionvoid ab initiotribunalhigh courtspecial leave petitionOdisha Education RulesHindi teachersgrant-in-aidjudicial propriety
Judgment
[2022] 19 S.C.R. 343 343
STATE OF ODISHA & ORS. ETC.ETC. A
v.
SULEKH CHANDRA PRADHAN ETC.ETC.
(Civil Appeal Nos. 3036-3064 of 2022)
APRIL 20, 2022 B
[L. NAGESWARA RAO AND B. R. GAVAI, JJ.]
Odisha Education (Recruitment and Conditions of Service of
Teachers and Members of the Staff of Aided Educational Institutions)
Rules, 1974 – rr.5, 6 – Tribunal allowed the Original Applications
C
filed by the respondents, thereby setting aside their termination and
allowing them to continue as Government servant as third teacher/
Assistant Teacher in Middle English Schools (M.E. Schools) as
regular teacher, same relief was granted to 137 Hindi Teachers also
– Writ petitions filed by the appellants, dismissed – On appeal, held:
Perusal of the approval order of the Government of Orissa, D
Education and Youth Service Department, would reveal that for
each M.E. School, only two posts, i.e., one post of a Trained
Graduate Headmaster and one post of a Trained Matric Teacher,
have been sanctioned – The order clearly provides that no other
post of teaching and non-teaching staff would be permitted – It is
E
not in dispute that the appointment of all the applicants/respondents/
teachers have been made directly by the respective Management
without following the procedure as prescribed under the Rules/
Statute – Appointments made in contravention of the statutory
provisions are void ab initio – Tribunal erred in allowing the Original
Applications of the applicants/teachers – Similarly, the High Court F
also erred in dismissing the petitions filed by the appellants –
Impugned judgment of the High Court and the orders of the Tribunal
are set aside – Constitution of India – Article 136 – Service Law.
Allowing the appeals, the Court
HELD: 1.1 Perusal of the approval order dated 12th G
September, 1980 of the Government of Orissa, Education and
Youth Service Department, would reveal that for each M.E.
School, only two posts, i.e., one post of a Trained Graduate
Headmaster and one post of a Trained Matric Teacher, have been
sanctioned. The order clearly provides that no other post of H
343
344 SUPREME COURT REPORTS [2022] 19 S.C.R.
A teaching and non-teaching staff would be permitted. It is not in
dispute that the appointment of all the applicants/respondents/
teachers have been made directly by the respective Management
without following the procedure as prescribed under the Rules/
Statute. It is a trite law that the appointments made in
contravention of the statutory provisions are void ab initio. The
B
contention raised that since the applicants/teachers were
appointed on posts which were not on grant-in-aid basis, the said
Rules are not applicable is not accepted. The said Rules would
clearly show that they are applicable to Aided Educational
Institution. Undisputedly, the institutions in which the applicants/
C teachers were appointed, were recognized as Aided M.E. Schools
vide G.O. dated 12th September, 1980. It is also not in dispute
that the appointments so made were subsequent to the schools
being recognized as Aided Schools. As such, the contention in
that regard deserves to be rejected. [Paras 31-33][356-E-G; 357-
B-C]
D
1.2 The Tribunal, while delivering the judgment and order
dated 18th May, 2017 and 30th January, 2018, has failed to take
into consideration the earlier orders dated 25th June, 2013 and
23rd September, 2013 delivered by the same Tribunal. In the
said orders of 2013, the Tribunal had elaborately considered the
E provisions of the said Rules and found no merit in the contentions
raised on behalf of the applicants therein. The orders passed by
the Tribunal ignoring its earlier orders, which were passed
elaborately considering the scheme of the said Rules, are totally
contrary to the well-established norms of judicial propriety. The
F situation becomes graver, inasmuch as, the Tribunal has allowed
O.A. No.2270 OF 2015 by its order dated 18th May, 2017 filed
by Sri Antaryami Bal, whose earlier application being O.A. No.
4029(2) of 1996 with regard to the same relief was rejected by
the Tribunal vide its earlier order dated 12th April, 2012. The
orders passed by the Tribunal are, therefore, totally unsustainable.
G Not only this, the Tribunal as well as the High Court has failed to
take into consideration the order passed by this Court on 2nd
December, 1996 in Civil Appeal No. 15712 of 1996. The impugned
order passed by the High Court depicts total non-application of
mind. Whereas the cause title would itself show that a Writ
H Petition (Civil) No.6557 of 2018 is disposed of by the impugned
STATE OF ODISHA & ORS. ETC.ETC. v. SULEKH CHANDRA 345
PRADHAN ETC.ETC.
judgment, the High Court observed that the order dated 18th A
May, 2017, passed by the Tribunal in O.A. No.2266 of 2015, has
not been challenged by the State. Whereas the teachers have
hardly worked for four years and a substantial part thereof on
account of interim orders passed by the High Court, the High
Court goes on to observe that the teachers have worked for a
B
period of more than 20 years. No reasons, leave aside sound
reasons, are reflected in the impugned order while dismissing
the writ petitions filed by the State. [Paras 34, 35][357-D-G; 358-
A-B]
1.3 That leaves the Court with the submission that since
the view taken by the Tribunal has been affirmed by the High C
Court and the Special Leave Petition challenging the same has
been dismissed, the view of the Tribunal has become final. A mere
dismissal of the Special Leave Petition would not mean that the
view of the High Court has been approved by this Court. As such,
the contention in that regard is rejected. The Tribunal has erred D
in allowing the Original Applications of the applicants/teachers.
Similarly, the High Court has also erred in dismissing the petitions
filed by the appellants. The impugned judgment and order of the
Division Bench of the High Court dated 20th December, 2018
passed in a batch of writ petitions and the judgments and orders
dated 18th May, 2017 and 30th January, 2018 of the Tribunal E
passed in a batch of Original Applications are quashed and set
aside. The Original Applications filed by the respondents/
applicants before the Tribunal are dismissed. [Paras 36-39][358-
C; 359-D-F]
Ayurvidya Prasarak Mandal and Another v. Geeta F
Bhaskar Pendse (Mrs) and Others (1991) 3 SCC 246 :
[1991] 2 SCR 282; J & K Public Service Commission
and Others v. Dr. Narinder Mohan and Others (1994)
2 SCC 630 : [1993] 3 Suppl. SCR 900; Official
Liquidator v. Dayanand and Others (2008) 10 SCC 1 : G
[2008] 15 SCR 331; Union of India and another v.
Raghuwar Pal Singh (2018) 15 SCC 463 : [2018] 4
SCR 1012; Kunhayammed and Others v. State of Kerala
and Another (1997) 2 SCC 635 : [1996] 9 Suppl. SCR
434 – relied on.
H
346 SUPREME COURT REPORTS [2022] 19 S.C.R.
A Case Law Reference
[1991] 2 SCR 282 relied on Para 32
[1993] 3 Suppl. SCR 900 relied on Para 32
[2008] 15 SCR 331 relied on Para 32
B [2018] 4 SCR 1012 relied on Para 32
[1996] 9 Suppl. SCR 434 relied on Para 36
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3036-
3064 of 2022.
C From the Judgment and Order dated 20.12.2018 of the High Court
of Orissa at Cuttack in W.P. (C) Nos.6557, 10792, 8037, 8040, 9163,
10844, 10876, 10880, 10970, 11394, 11399, 11400, 11401, 11546, 11554,
11556, 11796, 11798, 12520, 13672, 13848, 13850, 13999, 14107, 14108,
14109, 14448, 14449 and 14450 of 2018.
D Chander Uday Singh, Sr. Adv., Shibashish Misra, Amjid Maqbool,
Advs. for the Appellants.
R. Balasubramanian, Sr. Adv., Gaurav Agrawal, Javedur Rahman,
Pabitra Kumar Biswal, Shivendra Singh, Hitendra Nath Rath, Advs. for
the Respondents.
E The Judgment of the Court was delivered by
B. R. GAVAI, J.
1. Leave granted.
2. The appellants – State of Odisha and others have approached
F this Court, being aggrieved by the judgment and order dated 20 th
December, 2018, delivered by the Division Bench of the High Court of
Orissa at Cuttack in a batch of writ petitions being Writ Petition (Civil)
No. 6557 of 2018 along with connected matters, thereby dismissing the
said writ petitions filed by the appellants – State of Odisha and others,
challenging the judgments and orders delivered by the Odisha
G
Administrative Tribunal (hereinafter referred to as “the Tribunal”),
Bhubaneswar Bench, Bhubaneswar/Cuttack Bench, Cuttack dated
18th May, 2017 in O.A. No. 2266 of 2015 along with connected matters
and 30th January, 2018 in O.A. No.3420 (C) of 2015 along with connected
matters.
H
STATE OF ODISHA & ORS. ETC.ETC. v. SULEKH CHANDRA 347
PRADHAN ETC.ETC. [B. R. GAVAI, J.]
3. Vide order dated 18th May, 2017, delivered in O.A. No.2266 of A
2015 along with connected matters, the Tribunal, Bhubaneswar Bench
had allowed the Original Applications filed by the applicants therein
(respondents herein), thereby setting aside the termination of the
applicants (respondents herein) and directing/allowing them to continue
as Government servant as third teacher/Assistant Teacher in Middle
B
English Schools (hereinafter referred to as “M.E. Schools”) with effect
from 1st April, 2011, as regular teacher. Vide order dated 30th January,
2018, the Tribunal, Cuttack Bench followed its earlier order dated 18th
May, 2017 and granted the same relief to 137 Hindi Teachers.
4. The parties are referred herein as they are referred to in the
Original Applications. C
5. The facts giving rise to the present appeals are as under:
6. All the applicants joined the Aided M.E. School as Hindi
Teachers, in or around 1988-89. The applicant-Sulekh Chandra Pradhan
(respondent No.1 herein) in the lead case before the Tribunal, D
Bhubaneswar Bench, i.e., O.A. No.2266 of 2015, was appointed on 21 st
June, 1988 and joined on 23rd June, 1988, as Hindi Teacher at Nrusingha
Jena M.E. School, Naginipur in District Kendrapada. The appointment
of the said applicant was made by the Managing Committee of the said
School.
E
7. On 12th May, 1992, the Government of Orissa, Education
Department issued a resolution, thereby taking over all M.E. Schools
situated in the State of Odisha with effect from 1st April, 1991. Though
the Government took over all the teachers including non-teaching staff
of the M.E. School as Government servants, Hindi Teachers were not
taken over as Government servants and therefore, the services of the F
applicants were automatically terminated. Aggrieved thereby, on 2nd July,
1993, Sulekh Chandra Pradhan (respondent No.1 herein), approached
the High Court of Orissa at Cuttack by way of Writ Petition being OJC
No. 3042 of 1993, thereby raising a grievance that the benefits extended
to Hindi Teachers in terms of the letter of the Deputy Director, Sanskrit, G
Hindi and Special Education (hereinafter referred to as “the Deputy
Director”) dated 1st May, 1992 were not being extended to him. It was
asserted that though he possessed the requisite qualification, he was not
being absorbed against the third teacher post in the M.E. School where
he was earlier working. The Division Bench of the High Court, vide
H
348 SUPREME COURT REPORTS [2022] 19 S.C.R.
A judgment and order dated 2nd July, 1993, disposed of the said writ petition
by directing the Director of Elementary Education, Orissa (hereinafter
referred to as “the Director”), to look into the grievances of the petitioner
therein (i.e. Sulekh Chandra Pradhan) within four months from the date
of receipt of the order.
B 8. On 7 th January, 1994, the Government of Orissa issued a
clarification that the letter dated 1st May, 1992 of the Deputy Director
addressed to all Inspectors of Schools/all District Inspector of Schools,
was applicable only to the teachers, who were appointed against
sanctioned posts and were drawing their salaries from the Government
fund under Plan and non-plan scheme. By the said communication dated
C 1st May, 1992, the Deputy Director had clarified that Hindi being a non-
examinable subject in M.E. Schools, there was no need to allow the
existing Hindi Teachers in M.E. Schools to continue further.
9. It appears that in pursuance to the orders of the High Court,
the Government of Orissa addressed a letter dated 29th September, 1995
D to the Director, thereby informing that the Government had decided to
adjust such Hindi Teachers appointed by the Managing Committee within
the yardstick in UP (ME) Schools as Assistant Teachers in the taken
over M.E. Schools either in vacant posts of Assistant Teacher or in the
post of Hindi Teacher to be created in such schools or in other schools in
E relaxation of the qualifications, prescribed for the third teachers. Vide
the said communication dated 29th September, 1995, the Director was
asked to ascertain the names of the Hindi Teachers along with their
qualification from the concerned District Inspector of Schools. In response
to the same, the Director immediately informed the Government that
since the appointments were made beyond the yardstick and against the
F provisions of Odisha Education (Recruitment and Conditions of Service
of Teachers and Members of the Staff of Aided Educational Institutions)
Rules, 1974 (hereinafter referred to as “the said Rules”), the reference
to District Inspector of Schools to furnish the names and qualifications
of such Hindi Teachers would lead to every possibility for manipulation
G of the office records. It was also pointed out that such an exercise may
enable to sponsor names of Hindi Teachers for approval by making back-
dated appointments. It was therefore recommended that cases of only
such Teachers who had filed the writ application between 12th May,
1992 and 12th May, 1993, i.e., within a year after taking over of the
schools should be considered as one time measure.
H
STATE OF ODISHA & ORS. ETC.ETC. v. SULEKH CHANDRA 349
PRADHAN ETC.ETC. [B. R. GAVAI, J.]
10. Vide communication dated 21st May, 1996, the Government of A
Orissa informed the Director that the Government has decided to adjust
137 Hindi Teachers in M.E. Schools. It appears that vide communication
dated 17th June, 1996, the Government of Orissa also informed the
Director that while examining the original papers of Hindi Teachers,
their Acquaintance Roll should be verified by the District Inspector of
B
Schools. It further appears that vide communication dated 21st August,
1996, the Government of Orissa informed the Director that no action be
taken in pursuance to its earlier letters/communications dated 21st May,
1996 and 17th June, 1996, until further orders of the State Government.
11. Ignoring the letter/communication dated 21st August, 1996,
the respective District Inspector of Schools issued appointment order C
dated 27th August, 1996 in favour of the applicant – respondent No. 1
herein. Noticing this, the Directorate of Elementary Education, Orissa,
Bhubaneswar addressed a communication/letter dated 1 st October, 1996
to the District Inspector of Schools informing that all appointments made
by them should be kept in abeyance. It appears that on the basis of the D
said communication dated 1st October, 1996, the services of the applicants/
Hindi Teachers were discontinued with effect from 4 th November, 1996.
On 5 th September, 1998, the Government of Orissa addressed a
communication to the Director, stating therein that the Government has
withdrawn its G.O. No.31360 SME dated 29th September, 1995.
E
12. It is the contention of the State Government that the Joint
Secretary to the Government of Orissa, Department of School and Mass
Education addressed a communication dated 7th July, 2009 to the Director,
stating therein that the Government had decided to adjust the services of
137 Hindi Teachers in M.E. Schools as Assistant Teachers against the
vacant posts. Vide another communication dated 2 nd February, 2011, the F
office of the Director informed the District Inspectors of Schools that a
committee constituted and headed by them should scrutinize the original
papers of Hindi Teachers and acquaintance roll of the incumbents should
be verified with reference to the cash book of the School from the date
of their joining before the adjustment of such teachers. In pursuance to G
the aforesaid communication dated 2nd February, 2011, the applicants/
respondents were appointed on 31st March, 2011 as Assistant Teachers.
13. It appears that certain teachers had approached the Tribunal
by filing various applications, thereby challenging the order dated
1st October, 1996 and 4th November, 1996, vide which the appointment H
350 SUPREME COURT REPORTS [2022] 19 S.C.R.
A of teachers were kept in abeyance. One of such applications being O.A.
No.4029(2) of 1996 came to be rejected by the Tribunal by order dated
12th April, 2012. It appears that one another application being O.A.
No.3800 (C) of 2012 was filed by one Nimai Charan Dash, seeking a
direction to quash the order dated 21st August, 2012 whereby the
representation of the applicant therein to adjust him as a regular teacher
B
came to be rejected. The said application came to be rejected by the
Tribunal, Cuttack Bench vide order dated 23rd September, 2013. While
rejecting the said O.A. the Tribunal, Cuttack Bench, directed a detailed
enquiry to be conducted through the Vigilance Department.
14. In the enquiry, it was found that the letter dated 7th July, 2009
C of the Government of Orissa addressed to the Director to adjust 137
Hindi Teachers as Assistant Teachers against vacant posts was issued
by suppressing its earlier letter dated 5th September, 1998, whereby the
letter dated 29th September, 1995 to adjust the Hindi Teachers was
withdrawn. The Government of Orissa, therefore, vide communication
D dated 26th February, 2014, directed the Director to remove 137 Hindi
Teachers, who were illegally adjusted by the concerned District Inspector
of Schools. Accordingly, the services of the applicants/Teachers came
to be terminated with effect from 15th March, 2014.
15. The applicants, being aggrieved by their termination approached
E the High Court by way of Writ Petitions being Writ Petition (Civil) No.6747
of 2014 and other writ petitions. The High Court vide order dated 9th
May, 2014, delivered in Writ Petition (Civil) No.6747 of 2014, found that
the termination was done without following the principles of natural justice
and as such, set aside the same. However, liberty was granted to the
State to proceed against the petitioner therein (i.e., Ramesh Kumar
F Mohanty) by complying with the Rules governing the employment of the
petitioner therein and the requirement of the rule of natural justice. The
High Court further directed that the services/appointments of such of
the teachers would be continued till the decisions were taken by the
authorities after remand.
G 16. In pursuance thereof, the applicants/teachers were reinstated
on 15th December, 2014. In view of the liberty granted by the High
Court, show cause notices were issued to the applicants on 22nd July,
2015. Some of the applicants filed their replies and appeared for personal
hearing. Many of them chose not to do so. The services of the applicants
H came to be terminated with effect from 22 nd August, 2015. Being
STATE OF ODISHA & ORS. ETC.ETC. v. SULEKH CHANDRA 351
PRADHAN ETC.ETC. [B. R. GAVAI, J.]
aggrieved, a batch of Original Applications came to be filed before the A
Tribunal. The same came to be allowed by the Tribunal, Bhubaneswar
Bench, vide order dated 18th May, 2017, thereby quashing the show
cause notices dated 22nd July, 2015 and holding that the applicants were
entitled to continue as regular Government servants as third teacher/
Assistant Teacher in M.E. School with effect from 1st April, 2011.
B
17. Vide another order dated 30th January, 2018, the Tribunal,
Cuttack Bench, followed the abovementioned order dated 18th May, 2017,
passed by the Tribunal, Bhubaneswar Bench and granted similar relief
to 137 Hindi Teacher.
18. Being aggrieved by the judgments and orders dated 18th May, C
2017 and 30th January, 2018 of the Tribunal, the State of Odisha filed
writ petitions before the High Court. The same were dismissed by the
impugned judgment and order dated 20th December, 2018. Being
aggrieved thereby, the present appeals by way of special leave are filed.
Vide order dated 20th September, 2019, this Court issued notice and
granted stay to the impugned judgment and order. D
19. We have heard Shri Chander Uday Singh, learned Senior
Counsel appearing on behalf of the appellants, Shri Gaurav Agrawal,
learned counsel appearing on behalf of the respondents/teachers and
Shri R. Balasubramanian, learned Senior Counsel appearing on behalf
of the Interveners/applicants. E
20. Shri Chander Uday Singh, learned Senior Counsel appearing
on behalf of the appellants would submit that the High Court has grossly
erred in holding that the State had not challenged the judgment and order
dated 18th May, 2017, passed by the Tribunal, Bhubaneswar Bench, in
O.A. No.2266 of 2015 and other connected cases. He submitted that, F
as a matter of fact, Writ Petition (Civil) No.6557 of 2018 was filed
challenging the judgment and order dated 18th May, 2017, passed by the
Tribunal in O.A. No.2266 of 2015 and other connected cases. He
submitted that the High Court has erred in holding that the teachers had
discharged service under the State Government for more than two G
decades. He further submitted that the Division Bench of High Court
has erred in holding that the State had meted out discriminatory treatment
amongst the teachers. He therefore submits that the judgments and
orders passed by the Tribunal as well as the High Court are not sustainable
in law and liable to be set aside.
H
352 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 21. Shri Singh further submitted that the appointments made are
contrary to Rules 5 and 6 of the said Rules and as such, the appointments
made, de hors the said Rules, cannot be sustained. He further submitted
that the Tribunal, while delivering the judgments and orders dated 18th
May, 2017 and 30th January, 2018, has failed to take into consideration
the earlier orders of the Tribunal dated 25th June, 2013 and 23rd September,
B
2013, vide which the Tribunal had rejected similar claims made by the
Hindi Teachers. He further submits that, as a matter of fact, Sri Antaryami
Bal, whose O.A. (No. 2270 of 2015) has been allowed by the Tribunal
vide judgment and order dated 18th May, 2017, was the applicant in O.A.
No.4029 (2) of 1996, which was rejected by the Tribunal, Cuttack Bench
C by a well-reasoned judgment and order dated 12th April, 2012. He
therefore submits that the judgments and orders of the Tribunal, which
were impugned before the High Court, would also not be sustainable on
the ground of judicial propriety.
22. On facts, Shri Singh submitted that the applicants/teachers
D have worked only between 27th August, 1996 and 4th November,1996;
between 31st March, 2011 and 15th March, 2014; and lastly from 15th
December, 2014 till 25th August, 2015. The third period was on account
of the orders passed by the High Court. He therefore submits that, at
the most, the applicants/teachers have worked approximately for a period
of four years.
E
23. Shri Gaurav Agrawal, learned counsel, would submit that though
the M.E. Schools had a sanction of two posts, i.e., one post of Headmaster
and one post of Assistant Teacher; the posts of Hindi Teacher were
filled in by the Management on non-grant basis. He submits that the said
Rules would be applicable only to the appointments made on grant-in-
F aid basis and as such, to the post of Headmaster and to the one post of
Assistant Teacher. Since the applicants/teachers, who were appointed
on a third post, which was on non-grant basis, they would not be governed
by the said Rules.
24. Shri Agrawal further submits that in pursuance to the order
G passed by the Division Bench of the High Court in O.J.C. No. 3042 of
1993 dated 2nd July, 1993, the State had framed a policy for absorption
of these teachers as a one-time measure. He submits that prior to their
absorption, a detailed scrutiny and enquiry was required to be done. He
submits that if applicants/teachers were absorbed in pursuance to the
H policy, which was framed in pursuance to the directions of the High
STATE OF ODISHA & ORS. ETC.ETC. v. SULEKH CHANDRA 353
PRADHAN ETC.ETC. [B. R. GAVAI, J.]
Court, the termination would be bad in law. He therefore submits that no A
interference would be warranted with the judgments and orders passed
by the Tribunal and the High Court.
25. Shri R. Balasubramanian, learned Senior Counsel appearing
on behalf of the interveners/applicants would submit that similar matters,
i.e., O.A. No. 3420(C) of 2015 and other connected matters have been B
allowed by the Tribunal vide order dated 30th January, 2018. He submits
that the order of the Tribunal was confirmed/affirmed by the High Court
vide order dated 11th April, 2018 passed in Writ Petition (Civil) No.21661
of 2017. He submits that the Special Leave Petition (Civil) D. No.40252
of 2018 challenging the same has been rejected by this Court vide order
dated 19th July, 2019. He therefore submits that the issue has reached a C
finality and therefore, it will not be permissible for the State to do away
with the services of the Assistant Teachers. He further submits that the
applicants/interveners in the present appeals, who have succeeded before
the Tribunal, the High Court, and this Court have not been reinstated.
26. For appreciating the rival submissions, it will be necessary to D
refer to Rules 5 and 6 of the said Rules, which read thus:
“5. Procedure of application to the Board and appointment of
Staff in aided institutions –
(1) The Secretary of the Managing Committee or the Governing E
Body, as the case may be, of an Aided Educational Institution
shall, on or before the thirty-first day of August every year
apply to the Selection Board with copy of each application
to the concerned Inspector of Schools in respect of Schools
[Director of Higher Education] in respect of Colleges in
such manner as the Selection Board may prescribe for F
selection of a candidate for appointment in the vacancy or
vacancies in teaching post, and the concerned Inspector of
Schools and [Director of Higher Education] shall process
the applications so received and transmit the same to the
Selection Board by thirtieth day of September every year G
with certificate of genuineness of the vacancy or vacancies
along with a statement of the vacancy position in the
Educational Institutions within his jurisdiction.
(2) The Selection Board shall, on receipt of applications and
certificates referred to in Sub-rule () recommend a list of
H
354 SUPREME COURT REPORTS [2022] 19 S.C.R.
A candidates in order of merit strictly according to the number
of vacancies, to the concerned Directors who shall
thereupon, allot candidates to the concerned institutions
strictly in order of merit as per vacancy.
(3) Appointment shall be made by the Managing Committee or
B the Governing Body as the case may be, of the candidates
allotted under Sub-rule (2).
(4) [***]
(5) In the extent of non-acceptance of offer of appointment by
any candidate, report to that effect shall be sent to the
C [Director concerned] by the Secretary of the Managing
Committee or the Governing Body, as the case may be, and
upon receipt of such intimation, the name of the candidate
shall be struck off the list. The consequential vacancies
shall then be filled up by candidates allotted by the Director
D concerned from an additional list obtained from the Selection
Board from the list of persons in the waiting list with it.
(6) If instance of default in the appointment of candidates
allotted by the Director, come to his notice, he shall be
competent to withhold the individual teacher’s cost of the
E grant-in-aid to be paid to the institution concerned and to
take steps to supersede the Managing Committee or the
Governing Body, as the case may be, under Section 11 of
the Act.
(7) Where a vacancy was not foreseen by thirty-first day of
F August the Secretary of the Managing Committee or the
Government Body, as the case may be, shall apply to the
Selection Board through the concerned Inspector or the
Director, as the case may be, for allotment of candidates
whereupon, the Selection Board shall recommend
candidates out of the waiting list maintained by it, through
G the concerned Director.
(8) It shall not be necessary to apply to the Selection Board for
appointments to vacancies [for a period of six months or till
the date of receipt of the list referred to in Sub-rule (2)
from the Selection Board whichever is earlier] and all such
H appointments may be made by the Managing Committee or
STATE OF ODISHA & ORS. ETC.ETC. v. SULEKH CHANDRA 355
PRADHAN ETC.ETC. [B. R. GAVAI, J.]
the Government Body, as the case may be, with the prior A
approval of the Inspector in respect of an Institution other
than a College and of the Director in respect of a College.
[Provided that where it appears to the Inspector or the
Director, as the case may be, that the appointment to a
vacancy or vacancies in accordance with the provisions of B
this rule is being circumvented by making appointments in
pursuance to this Sub-rule, the Director suo motu or on the
receipt of a report from the Inspector as the case may be,
shall be competent to proceed against the Managing
Committee or the Governing Body under Section 11 of the
Act.] C
(9) Notwithstanding anything contained in Sub-rule (8), it shall
be competent for the Managing Committee or the Governing
Bode, as the case may be to extend in terms of appointment
beyond six months till the recommendation of the Selection
Board is received with the prior approval of Government. D
6. Procedure of selection of candidates –
(1) The Selection Board shall, at such intervals as it deems
proper call for applications for various posts in respect of
which vacancies are likely to arise in the course of the next E
one year in such manner as may be determined in the
regulation of the Selection Board.
(2) The Selection Board shall conduct examinations
including a viva voce examination of any candidate or all
candidates with a view to determine their merit and F
suitability in the matter appointed in its regulations.”
27. Perusal of the sub-rule (1) of Rule 5 of the said Rules would
show that the Secretary of the Managing Committee or the Governing
Body, as the case may be, of an Aided Educational Institution, is required
to apply to the Selection Board on or before the thirty-first day of August G
every year with copy of each application to the concerned Inspector of
Schools and Director of Higher Education. The Inspector of Schools
and the Director of Higher Education are required to process the
applications so received and transmit the same to the Selection Board
by thirtieth day of September every year with certificate of genuineness
H
356 SUPREME COURT REPORTS [2022] 19 S.C.R.
A of the vacancy/vacancies. Perusal of sub-rule (2) of Rule 5 of the said
Rules would show that the Selection Board shall recommend a list of
candidates in order of merit strictly according to the number of vacancies
to the concerned Directors, who shall thereupon allot candidates to the
concerned institutions strictly in order of merit as per vacancy.
B 28. Perusal of sub-rule (6) of Rule 5 of the said Rules would
reveal that if the Management defaults in making appointment of
candidates allotted by the Director, he shall be competent to withhold
the individual teacher’s cost of the grant-in-aid to be paid to the institution
concerned. He is also entitled to take steps to supersede the Managing
C Committee or the Governing Body, as the case may be. Under sub-rule
(8) of Rule 5 of the said Rules, the relaxation is granted for filling up the
vacancies for a period of six months or till the date of receipt of the list
as referred to in sub-rule (2) of Rule 5 of the said Rules. However, the
same has to be with the prior approval of the Inspector in respect of an
institution other than a College and of the Director in respect of a College.
D
29. Rule 6 of the said Rules prescribes the procedure for selection
of candidates.
30. It could thus be clearly seen that a detailed selection procedure
is prescribed for making appointment of vacancies arising in Aided
E Educational Institution.
31. Perusal of the approval order dated 12th September, 1980 of
the Government of Orissa, Education and Youth Service Department,
would reveal that for each M.E. School, only two posts, i.e., one post of
a Trained Graduate Headmaster and one post of a Trained Matric
F Teacher, have been sanctioned. The order clearly provides that no other
post of teaching and non-teaching staff would be permitted.
32. It is not in dispute that the appointment of all the applicants/
respondents/teachers have been made directly by the respective
Management without following the procedure as prescribed under the
G Rules/Statute. It is a trite law that the appointments made in contravention
of the statutory provisions are void ab initio. Reference in this respect
could be made to the judgments of this Court in the cases of Ayurvidya
Prasarak Mandal and another vs. Geeta Bhaskar Pendse (Mrs)
and others1, J & K Public Service Commission and others vs. Dr.
H 1
(1991) 3 SCC 246
STATE OF ODISHA & ORS. ETC.ETC. v. SULEKH CHANDRA 357
PRADHAN ETC.ETC. [B. R. GAVAI, J.]
Narinder Mohan and others2, Official Liquidator vs. Dayanand and A
others3, and Union of India and another vs. Raghuwar Pal Singh4.
33. We are unable to accept the contention raised by Shri Gaurav
Agrawal and Shri R. Balasubramanian that since the applicants/teachers
were appointed on posts which were not on grant-in-aid basis, the said
Rules are not applicable. The said Rules would clearly show that they B
are applicable to Aided Educational Institution. Undisputedly, the
institutions in which the applicants/teachers were appointed, were
recognized as Aided M.E. Schools vide G.O. dated 12th September, 1980.
It is also not in dispute that the appointments so made were subsequent
to the schools being recognized as Aided Schools. As such, the contention
C
in that regard deserves to be rejected.
34. We further find that the Tribunal, while delivering the judgment
and order dated 18th May, 2017 and 30th January, 2018, has failed to take
into consideration the earlier orders dated 25th June, 2013 and 23rd
September, 2013 delivered by the same Tribunal. In the said orders of
D
2013, the Tribunal had elaborately considered the provisions of the said
Rules and found no merit in the contentions raised on behalf of the
applicants therein. The orders passed by the Tribunal ignoring its earlier
orders, which were passed elaborately considering the scheme of the
said Rules, are totally contrary to the well-established norms of judicial
propriety. The situation becomes graver, inasmuch as, the Tribunal has E
allowed O.A. No.2270 OF 2015 by its order dated 18th May, 2017 filed
by Sri Antaryami Bal, whose earlier application being O.A. No. 4029(2)
of 1996 with regard to the same relief was rejected by the Tribunal vide
its earlier order dated 12th April, 2012. The orders passed by the Tribunal
are, therefore, totally unsustainable in view of the law laid down by this
Court in the case of Official Liquidator vs. Dayanand and others F
(supra). Not only this, the Tribunal as well as the High Court has failed
to take into consideration the order passed by this Court on 2nd December,
1996 in Civil Appeal No. 15712 of 19965.
35. The impugned order passed by the High Court depicts total
non-application of mind. Whereas the cause title would itself show that G
a Writ Petition (Civil) No.6557 of 2018 is disposed of by the impugned
2
(1994) 2 SCC 630
3
(2008) 10 SCC 1
4
(2018) 15 SCC 463
5
(1997) 2 SCC 635 H
358 SUPREME COURT REPORTS [2022] 19 S.C.R.
A judgment, the High Court observed that the order dated 18th May, 2017,
passed by the Tribunal in O.A. No.2266 of 2015, has not been challenged
by the State. Whereas the teachers have hardly worked for four years
and a substantial part thereof on account of interim orders passed by the
High Court, the High Court goes on to observe that the teachers have
worked for a period of more than 20 years. No reasons, leave aside
B
sound reasons, are reflected in the impugned order while dismissing the
writ petitions filed by the State.
36. That leaves us with the submission of Shri R. Balasubramanian,
learned Senior Counsel that since the view taken by the Tribunal has
been affirmed by the High Court and the Special Leave Petition
C challenging the same has been dismissed, the view of the Tribunal has
become final. In this respect, reliance could be placed on the judgment
of this Court in the case of Kunhayammed and others vs. State of
Kerala and another6, wherein this Court has held as under:
“27. A petition for leave to appeal to this Court may be dismissed
D by a non-speaking order or by a speaking order. Whatever be the
phraseology employed in the order of dismissal, if it is a non-
speaking order, i.e., it does not assign reasons for dismissing
the special leave petition, it would neither attract the doctrine
of merger so as to stand substituted in place of the order put
E in issue before it nor would it be a declaration of law by the
Supreme Court under Article 141 of the Constitution for there
is no law which has been declared. If the order of dismissal be
supported by reasons then also the doctrine of merger would not
be attracted because the jurisdiction exercised was not an appellate
jurisdiction but merely a discretionary jurisdiction refusing to grant
F leave to appeal. We have already dealt with this aspect earlier.
Still the reasons stated by the Court would attract applicability of
Article 141 of the Constitution if there is a law declared by the
Supreme Court which obviously would be binding on all the courts
and tribunals in India and certainly the parties thereto. The
G statement contained in the order other than on points of law would
be binding on the parties and the court or tribunal, whose order
was under challenge on the principle of judicial discipline, this
Court being the Apex Court of the country. No court or tribunal or
parties would have the liberty of taking or canvassing any view
6
H (2000) 6 SCC 359
STATE OF ODISHA & ORS. ETC.ETC. v. SULEKH CHANDRA 359
PRADHAN ETC.ETC. [B. R. GAVAI, J.]
contrary to the one expressed by this Court. The order of Supreme A
Court would mean that it has declared the law and in that light the
case was considered not fit for grant of leave. The declaration of
law will be governed by Article 141 but still, the case not being
one where leave was granted, the doctrine of merger does not
apply. The Court sometimes leaves the question of law open. Or
B
it sometimes briefly lays down the principle, may be, contrary to
the one laid down by the High Court and yet would dismiss the
special leave petition. The reasons given are intended for purposes
of Article 141. This is so done because in the event of merely
dismissing the special leave petition, it is likely that an argument
could be advanced in the High Court that the Supreme Court has C
to be understood as not to have differed in law with the High
Court.”
[emphasis supplied]
37. It is thus clear that a mere dismissal of the Special Leave
Petition would not mean that the view of the High Court has been approved D
by this Court. As such, the contention in that regard is rejected.
38. We are, therefore, of the considered view that the Tribunal
has erred in allowing the Original Applications of the applicants/teachers.
Similarly, the High Court has also erred in dismissing the petitions filed
by the appellants. E
39. In the result, the appeals are allowed. The impugned judgment
and order of the Division Bench of the High Court dated 20th December,
2018 passed in a batch of writ petitions and the judgments and orders
dated 18th May, 2017 and 30th January, 2018 of the Tribunal passed in a
batch of Original Applications are quashed and set aside. The Original F
Applications filed by the respondents/applicants before the Tribunal are
dismissed.
40. All pending applications, including applications for intervention,
shall stand disposed of. There shall be no order as to costs.
G
Divya Pandey and Anurag Bhaskar Appeals allowed.
(Assisted by : Iram Jan, LCRA)
H
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