IMPORTANT POINTS
Article 14 of the Constitution envisages only positive equality.
Concept of adverse possession of lien on post or holding over are inapplicable in service jurisprudence.

Headnote:(a) Education law – Need to maintain high academic standard of education for survival of democracy cannot be overemphasized – Cosntitution of India, Article 21A. (Para 29, 33, 34)
       AIR 1976 SC 10; AIR 1987 SC 311; AIR 1987 SC 2034; (2009) 1 SCC 59; AIR 1998 SC 1153; AIR 2000 SC 634 – Relied upon
       (b) Service law – Appointment – Requirements of Articles 14 and 16 of the Constitution – Applications must be invited from all eligible persons for appointment even on temporary or ad hoc basis – Merely inviting names from the Employment Exchange or putting a note on the Notice Board etc. will not meet the requirement of Articles 14 and 16 of the Constitution. (Para 35, 36)
       AIR 1992 SC 789; AIR 1992 SC 2130; (1996) 6 SCC 216; AIR 1998 SC 331; AIR 2005 SC 2103; AIR 2006 SC 2319; (2008) 8 SCC 402; (2009) 5 SCC 65; (2009) 15 SCC 214 – Relied upon
       (c) Administration of Justice – Judicial propriety – If an order is bad in law ab initio, all consequential proceedings will be non est in law – Concept of adverse possession is not applicable to service jurisprudence – Continuation of a person wrongly appointed on post does not create any right in his favour. (Para 37)
       AIR 1998 SC 1289; AIR 2005 SC1964; AIR 2010 SC 3823; AIR 2010 SC 3783 – Relied upon
       (d) Service Law – Appointment – Appointing a person lacking eligibility as per the rules/advertisement – Is illegality and not irregularity – Cannot be cured at any stage – Essential qualifications cannot be relaxed. (Para 40)
       1993 Supp (1) SCC 714; AIR 2008 SC 1817; (2006) 4 SCC 1; (2006) 5 SCC 493; (2007) 5 SCC 317 – Relied upon
       (e) Service Law – Essential qualifications – Can be relaxed, if statutorily provided – Even then relaxation cannot be made arbitrarily – Relaxation can also not be made after selection process is over. (Para 42 to 50)
       AIR 1980 SC 2141; 1993 Supp (3) SCC 168; AIR 1984 SC 541; (2005) 4 SCC 154; (2006) 8 SCC 671; AIR 2005 SC 2775; (2001) 8 SCC 532; (2009) 4 SCC 170; AIR 1956 SC 44; (2003) 2 SCC 412; AIR 2008 SC 1470; AIR 2010 SC 3714 – Relied upon
       (f) Constitution of India – Article 226 – Delay and laches – Although Limitation Act does not apply to writ jurisdiction, principles enshrined therein are applicable – A writ petition is liable to be dismissed for unexplained delay and laches – Petition filed after inordinate delay after coming to know of relief granted in similar case cannot be allowed – Respondent claiming relief after 19 years wef 1986 – High Court not only entertaining petition but also granting relief wef 1984 instead of 1986 as sought for – Not permissible. (Para 51, 52, 53)
       AIR 1944 Privy Council 24; (2008) 12 SCC 577; AIR 1989 SC 674; (1996) 6 SCC 267; AIR 1997 SC 2366 – Relied upon
       (g) Constitution of India – Article 226 – As a rule, relief not founded on the pleadings should not be granted – Thus relief not claimed cannot be granted. (Para 54)
       (1898) 25 Ind. App. 195; AIR 1953 SC 235; AIR 2005 SC 3165 – Relied upon
       (h) Constitution of India – Article 14 – Not meant to perpetuate illegality – It applies to courts also – If a wrong order has been passed, court is duty bound to rectify the same rather than perpetuating the same (Para 55, 56)
       AIR 1995 SC 705; AIR 2003 SC 1241; AIR 2005 SC 565; AIR 2006 SC 898; (2008) 9 SCC 24; (2009) 5 SCC 65; AIR 2010 SC 3455; AIR 1993 SC 1048; (1995) 3 SCC 619; (2004) 7 SCC 558; AIR 2006 SC 2449 – Relied upon
       (i) Constitution of India – Article 14 – Arbitrariness – Arbitrary State action is liable to be invalidated – Order passed by adopting procedure offending fundamental fairness or established ethos or shocking the conscience, stands vitiated. (Para 58)
       AIR 1988 SC 157; (1994) 5 SCC 267; (1994) 6 SCC 651; AIR 1967 SC 1458; AIR 1997 SC 1446 – Relied upon
       (j) Words and Phrases – Per incuriam – "Incuria" literally means "carelessness" – In practice per incuriam is taken to mean per ignoratium – Courts have developed` this principle in relaxation of the rule of stare decisis – Thus the "quotable in law", is avoided and ignored if it is rendered, in ignoratium of a Statute or other binding authority. (Para 62)
       AIR 1975 SC 907; AIR 1997 SC 2071 – Relied upon
       (k) Service law – Appointment – Rules of recruitment not followed – Some appointed on the basis of notice inviting application put up on the notice board only – No respondent having minimum requirement of 54% marks at the time of appointment – Approval to appointment accorded after more than a decade – Eligibility criteria fixed by State under Rules 1974 could not be relaxed by University – High Court passing the order without considering delay and laches – In some cases High Court granting relief not even asked for – Although terminating services of the respondents after such a long time may not be desirable, they would be entitled to benefits of UGC scale only on acquiring the minimum qualification – Directions given. (Para 65 to 67)

       Facts of the case:
       The respondent was appointed as a Lecturer on 9.7.1979 and she was granted the benefit of receiving 1/3rd grant-in-aid.
       A revised pay scale enforceable with effect from 1.1.1986 as per the recommendations of UGC was notified. The Notification was applicable only in such cases where the post was granted the benefit of grant-in-aid Scheme by 1.4.1989 and person manning that post had a good academic record i.e. 54 per cent or its equivalent grade in a Masters’ Course.
       Respondent without making any representation before any authority approached the High Court by filing Writ Petition seeking a direction to the State Government to pay the pre-revised pay scale with effect from 1.1.1986.
       High Court allowed the said writ petition giving the benefit of the U.G.C. pay scale to her w.e.f. 1.6.1984.
       Finding of the Court:
       The whole exercise done by the State authorities suffers from the vice of arbitrariness and thus is violative of Article 14 of the Constitution. Therefore, it cannot be given effect to.
       Result:
       Appeals disposed of.

Judgement Key Points

Key Points: - The Selection Board under Rules 1974 is the proper body for recommending candidates and institutional appointments, not the Managing Committee, with appointments transferable across state colleges (p_13, p_19, p_18, p_31, p_136, p_132). - Appointment of personnel lacking the minimum eligibility (54% in Master’s) cannot be cured by later condonation or relaxation; such appointments are illegal and cannot be regularized (p_71, p_40, p_41, p_39, p_68, p_70). - Grant of UGC pay scales cannot be granted prior to acquiring the deficiency/eligibility and after a long delay; relaxation cannot alter the fundamental eligibility or the date of grant-in-aid; delays and laches affect relief (p_69, p_70, p_52, p_53, p_55, p_56). - Relaxation of essential qualifications is not a general power and must be expressly provided; improper relaxation after the selection process is vitiating (p_42 to p_50, p_43, p_47, p_85). - If an order is bad in inception, subsequent actions cannot validate it; illegality at inception taints all further proceedings (p_37, p_63, p_64, p_65). - Article 14 demands positive equality; arbitrary/irrational orders violate Article 14 (p_55, p_58, p_59, p_60, p_63). - The Court directs specific four-month timelines to complete the examination of deficiencies and grant of UGC pay scale, with arrears to follow within four months (p_151, p_152, p_153).

How to determine whether appointments in Orissa aided colleges complied with Rule 1974 recruitment procedures?

What is the legal status of granting UGC pay scales to teachers who did not initially meet 54% in Master’s degree and relied on later relaxations or condonation?

What are the consequences when an order of appointment is bad in inception and cannot be cured by later relaxations or condonation?

JUDGMENT:

Dr. B.S. CHAUHAN, J.

1. All the aforesaid appeals have been filed against the judgments and orders of the High Court of Orissa at Cuttack which have been passed placing reliance on its earlier judgments in similar cases. The facts and legal issues involved herein are the same. Thus, they are heard together and are being disposed of by the common judgment and order. However, for convenience, Civil Appeal No. 1272 of 2011 is taken to be the leading case and some reference to facts would be taken from other appeals as and when necessary in the context of legal issues involved herein.

2. The appeal has been preferred against the judgment and order dated 22.3.2006 of the High Court of Orissa at Cuttack in Writ Petition (Civil) No. 14157 of 2005.

FACTS:

3. (A) The respondent was appointed as a Lecturer in Niali College, Niali, on 9.7.1979 and her appointment as such was approved by the Director of Higher Education, Orissa, a statutory authority - the appellant No. 2, vide order dated 18.12.1985, and she was granted the benefit of receiving 1/3rd grant-in-aid.

(B) In order to provide better facilities to teachers and enhance the standard of higher education, the Government of Orissa, came out with a Notification dated 6.10.1989 with a revised pay scale enforceable with effect from 1.1.1986 as per the recommendations of UGC. However, the said Notification was applicable only in such cases where the post has been granted the benefit of grant-in-aid Scheme by 1.4.1989 and person manning that post had a good academic record i.e. 54 per cent or its equivalent grade in a Masters' Course.

(C) Respondent did not make any representation before any authority to get the benefit of the said Notification dated 6.10.1989, rather approached the High Court on 11.11.2005 by filing Writ Petition (Civil) No. 14157 of 2005 seeking a direction to the State Government to pay the pre-revised pay scale with effect from 1.1.1986 placing reliance on the various orders passed by the High Court earlier in cases of other persons e.g. in case OJC No. 3705 of 1987.

(D) The present appellants contested the said writ petition pointing out that the respondent had secured only 40 per cent marks in her Master's course. She was by no means, eligible for appointment. Her appointment, being not in consonance with law, remained illegal.

(E) The High Court placing reliance on its earlier judgments, allowed the said writ petition giving the benefit of the U.G.C. pay scale to her w.e.f. 1.6.1984. Hence, this appeal.

4. The submissions made in all these appeals, particularly by the respondents are that the High Court had been dealing with the subject matter for a long time and judgments of the High Court have been upheld by this court. Once the SLPs against the judgments of the High Court which had been relied upon by the High Court while deciding these cases, have been dismissed in limine, judicial discipline and decorum demand that this Court should follow the same order. Thus, the judgments and orders impugned herein did not warrant any interference.

5. On the other hand, it has been submitted by learned counsel for the appellants that factual and legal issues involved in these cases have never been considered either by the High Court or by this Court in proper perspective. For example, in Civil Appeal No. 1274 of 2011, State of Orissa v. Mrs. Manju Patnaik, the matter had initially been filed before the Orissa Education Tribunal. Therein, the question arose as to whether the respondent herein had been appointed by following the procedure prescribed by the law for making the appointment. As the State had raised the issue that respondent had been appointed without following any procedure known in law for this purpose her appointment itself was illegal and void. The vacancy on the post of Lecturer in Chemistry in Paramananda College, Bolgarh, Dist. Khurda was never advertised nor were the names of eligible candidates requisitioned from the Employment Exchange. Admitt

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2011 Supreme(SC) 160

IMPORTANT POINTSArticle 14 of the Constitution envisages only positive equality. Concept of adverse possession of lien on post or holding over are inapplicable in service jurisprudence.

How to determine whether appointments in Orissa aided colleges complied with Rule 1974 recruitment procedures?

What is the legal status of granting UGC pay scales to teachers who did not initially meet 54% in Master’s degree and relied on later relaxations or condonation?

What are the consequences when an order of appointment is bad in inception and cannot be cured by later relaxations or condonation?

Cases Referred (56)

IMPORTANT POINTS
Article 14 of the Constitution envisages only positive equality.
Concept of adverse possession of lien on post or holding over are inapplicable in service jurisprudence.