1. Ad hoc headmasters sought regularization and challenged recruitment via executive instructions in the absence of statutory rules under the Orissa Education Act, 1969. (Para 1 )
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1997 Supreme(SC) 1175
SUPREME COURT OF INDIA
Mrs. SUJATA V. MANOHAR AND D.P. WADHWA, JJ.
State of Orissa and others, Appellants
VERSUS
Mamtarani Sahoo and another, Respondents.
Civil Appeals Nos. 9002-9003 of 1994 with C. A. Nos. 9004, 9005-9008 of 1994, D/- 3-9-1997.
Important Points
Administrative instructions can supplement statutory rules to fill gaps where the rules are silent, provided they are not inconsistent with the existing rules. Consequently, District Selection Boards may function under executive instructions to fill procedural voids, even if specific statutory rules for such boards have not yet been framed.
Subject
Education Law - Teacher Recruitment and Service Conditions
Act Referred
ORISSA EDUCATION ACT: S.10(3)(2), S.27
Headnote
Orissa Education Act, 1969 – Section 10 (3) – Appeals arise from a batch of Writ Petitions which were filed before the Orissa High Court by ad hoc Headmasters/Headmistresses who were appointed for a period of six months at a time by the Managing Committee of the concerned schools and were continued in that fashion for a number of years with the approval of the Inspector of Schools – All these appointments expressly contained a term to the effect that they would continue till regularly selected candidates were appointed to the posts in question – Respondents prayed for regularisation and they further prayed for a declaration that the new mode of recruitment set out in executive instructions should be quashed and that no new appointments should be made under these executive instruction –Held, In the premises the judgment of the High Court is set aside and the Writ Petitions are dismissed. However, all those headmasters/headmistresses who are functioning on an ad hoc basis with the prior approval of the Inspector of Schools, will be entitled to continue until regular appointments are made – They will also be eligible for consideration for regular appointment by the concerned District Selection Board along with other applicants – They will be entitled for such consideration by the District Selection Board which shall waive the age bar, provided at the time of their initial appointment, they were within the prescribed age limit – District Selection Board any take into account their record of service while functioning as such ad hoc headmasters or headmistresses – Court also make it clear that if any scheme for regularisation of such ad hoc headmasters/headmistresses is framed, all those who were functioning as such ad hoc headmasters/headmistresses with the approval of the Inspector of Schools on the date of the High Court judgment which is impugned before us, will be entitled to be considered for regularisation if they are qualified under that scheme for such consideration – Appeals allowed.
Legal Category Hierarchy
Table of Contents
2. Respondents argued that administrative instructions cannot substitute statutory rules under Section 10(3) of the Orissa Education Act, rendering District Selection Boards' functions invalid. (Para 8 )
3. Administrative instructions may supplement statutory rules to fill gaps where rules are silent, provided they are not inconsistent with the existing statutory framework. (Para 9 , 10 )
4. Government may issue administrative instructions to fill gaps in statutory rules, provided such instructions do not amend or supersede the existing rules. (Para 10 )
5. High Court judgment set aside; ad hoc headmasters may continue until regular appointments and are eligible for consideration for regular appointment or regularization schemes. (Para 12 )
6. Can administrative instructions be used for recruitment if statutory rules are silent?
Yes, the government can issue administrative instructions to fill gaps and supplement statutory rules, provided the instructions are not inconsistent with the rules already framed. (Para 10 )
7. Do existing statutory rules remain valid if new administrative instructions are issued to supplement them?
Yes, statutory rules continue to operate unless they are abrogated; administrative instructions only supplement the rules in areas where they are silent or modified by law. (Para 9 , 10 )
8. What is the status of ad hoc appointees when regular recruitment processes are established?
Ad hoc appointees may continue in their posts until regular appointments are made and should be considered for regular appointment or regularization schemes if qualified. (Para 12 )
Judgement
JUDGMENT :- All these appeals arise from a batch of Writ Petitions which were filed before the Orissa High Court by ad hoc Headmasters/Headmistresses who were appointed for a period of six months at a time by the Managing Committee of the concerned schools and were continued in that fashion for a number of years with the approval of the Inspector of Schools. All these appointments expressly contained a term to the effect that they would continue till regularly selected candidates were appointed to the posts in question. The respondents prayed for regularisation and they further prayed for a declaration that the new mode of recruitment set out in executive instructions dated 1-9-90 and 5-6-91 should be quashed and that no new appointments should be made under these executive instructions. The High Court in its impugned judgment has held that until rules are framed under Section 10 (3) of the Orissa Education Act, 1969 the District Selection Board cannot function under executive instructions. It has further directed that the appellants should be continued as Headmasters/Headmistresses until regular appointees are appointed to the said posts.
2. The State of Orissa has filed the present appeal.
3. Section 10 of the Orissa Education Act, 1969, prior to its amendment by Act 15 of 1989 provided as follows :
"Conditions of service of the staff of aided institutions. (1) The qualification required for appointment as teachers and other members of the staff of aided educational institutions and their conditions of service relating to salary, leave, pension, provident fund, age of retirement, disciplinary action and other matters shall be as may be prescribed :
"Provided that the terms and conditions of 3371 service prescribed in respect of teachers and other members of the staff who, on the condition of a common cadre, have been absorbed in such cadre, shall not in any way be less favourable than the terms and conditions which were applicable to them immediately prior to such condition."
(2) The State Government may constitute a Selection Board consisting of such members as may be prescribed.
(3) The Selection Board shall prepare in the prescribed manners a list of candidates for appointment as teachers in aided educational institutions and all such appointments shall be made in accordance with the rules made in that behalf from out of the candidates included in the list so prepared.
Section 10 (2) of the Orissa Education Act, after the Amendment made by Act 15 of 1989, was replaced by the following :
"Section 10 (2) : The State Government shall by notification constitute a Selection Board for the State to select teachers for recognised Private Higher Secondary Institutions and College and one such Board for each district to select teachers for recognised Private High School and Upper Primary Schools. Such Boards may consist of such members as may be specified by such notifications."
4. Section 10 (3) provided that appointments shall be made in accordance with rules made in that behalf from out of the candidates in the list prepared by the Selection Board. The rule-making power is contained in Section 27 which enables the State Government, after previous publication, to make rules for carrying out all or any of the purposes of the Act. In exercise of this power, the State Government has published the Orissa Education (Recruitment and Conditions of Service of Teacher and Members of the Staff of Aided Educational Institution) Rules, 1974 (hereinafter referred to as the Rules of 1974). These Rules which have been in existence long prior to the amendment of Section 10 (2) provide, inter alia, for constitution of the Selection Board, procedure for application to the Board and appointment of staff in aided institutions. The Rules also prescribe drawal of pay and allowances, conduct of employees, their probation and confirmation, maintenance of confidential character roll in the service book, termination of service, superannuation and provis
