Yogendra Singh vs District Inspector of Schools Muzaffarnagar and others

Nobody is present on behalf of the petitioner even in the revised reading of the cause list.

This writ petition was earlier dismissed under an order dated 27.11.2003 and recall application was filed, which was rejected by means of a reasoned order by the Hon'ble Single Judge on 27.8.2010. The Hon'ble Single Judge also touched the merits of the petition while disposing of the restoration application. Special Appeal No. 1644 of 2010 was filed by petitioner which has been allowed and the writ petition was restored to its original number.

The petition is of the year 1989 and on the strength of the interim order the petitioner has been availing salary from the State exchequer till today.

However, since the salary to the petitioner has been paid because of the intervention of this Court and further since this Court finds that the petitioner was not qualified for the post of Lecturer on the date of appointment qua the subject concerned. It is necessary that the benefit drawn by the petitioner under the interim order must be neutralised. Therefore, it is directed that the entire salary paid to the petitioner, which he has drawn on the strength of the interim order, must be recovered by the authorities at the earliest possible.

Writ petition is dismissed. Interim order, if any, stands vacated.

पत्रांक 727/86-87

दिनांक 21.10.86

विषय: जीव विज्ञान प्रवक्ता पद पर नियुक्ति के सम्बन्ध में।

महोदय,

आपको सूचित किया जाता है कि आपके साक्षात्कार दिनांक 19.10.86 के अनुसार जीव विज्ञान प्रवक्ता पद पर आपकी अस्थायी रूप से 20.5.87 तक अथवा इससे पूर्व आराक्षी समूह अध्यापक या आयोग द्वारा चयनित अभ्यर्थी के कार्यभार ग्रहण करने की तिथि से जो पूर्ववर्ती हो के लिये विभाग द्वारा स्वीकृत वेतन तथा महंगाई भत्ता देय पर नियुक्ति की जाती है।

यह भी प्रतिबंध है कि आपको नियुक्ति का अनुमोदन जिला विद्यालय निरीक्षक मु०नगर द्वारा वेतन वितरण हेतु अनुमन्य होने पर ही आपके कार्यभार ग्रहण करने की तिथि या दिनांक से वेतन दिया जायेगा।

आप पत्र प्राप्ति के 10 दिन के भीतर अपना कार्यभार ग्रहण कर लें।

प्रबन्धक

के०एस० इण्टर कालिज,

कुरालसी (मु०नगर)

(i)

A writ order or direction in the nature of certiorari quashing the termination notice dated 31.7.89 issued by the Management.

(ii)

A writ order or direction of a suitable nature commanding the respondents not to interfere in the functioning of the petitioner on the post of Lecturer in Biology in Kalyankari Shakumbhara Inter College, Kuralsi, District Muzaffarnagar.

Until further orders of this Court the operation of the order dated 31.07.1989 is stayed.

सेवा में,

उप जिला निदेशक,

प्रथम मण्डल, मेरठ।

सेवा में,

जिला विद्यालय निरीक्षक,

मुजफ्फरनगर।

पत्रांकः माध्यमिक/ 9859/94-95

दिनांक 4.9.95

विषय: उत्तर प्रदेश अध्यादेश संख्या 28 मई 1991 द्वारा उ०मा०वि० माध्यमिक शिक्षा आयोग और.. अधिनियम 1982 की धारा 33 के अन्तर्गत तदों नियुक्ति/प्रोन्नति अध्यापकों के विनियमितिकरण।

महोदय,

उत्तर प्रदेश शासन द्वारा निर्गत अध्यादेश संख्या 28 मई 1984 दिनांक 6.4.91 के प्राविधानों के अनुसार उ०प्र० माध्यमिक शिक्षा सेवा आयोग और चयन अधिनियम 1982 की धारा क एवं अवर शिक्षा निदेशक (मा०) इलाहाबाद के अ० पत्रांक / सामान्य (1) / तृतीय /शिविर/3906-4085 / 91-92 दि० 26.4.91 में दिए गये निर्देशानुसार निम्नांकित अध्यापकों को आपके तथा विद्यालय के प्रबन्धतन्त्र छायाप्रति अभिलेखों के आधार पर विनियमितिकरण हेतु अर्ह पाया है:-

क्र०सं०	अध्यापक का नाम	पद	संदर्भ पदोन्नति नियुक्ति तिथि	शैक्षिक योग्यता	विद्यालय का नाम
1	2	3	4	5	6
1.	योगेन्द्र सिंह	प्रवक्ता जीव विज्ञान	01.11.86	एम०एस०सी०	के०एस० इण्टर कालेज कुरालसी (मु०नगर)

विनियमितिकरण की वह संस्तुति अभ्यर्थी, प्राचार्य एवं प्रबन्धक द्वारा प्रस्तुत करें प्रमाणित अभिलेखों के आधार पर की गई है, अतः यदि किसी स्तर पर अभिलेखों में कोई त्रुटि पायी जाती है, अथवा कोई असत्य सिद्ध होती है तो, तो उसका उत्तरदायित्व अभ्यर्थी, प्राचार्य/प्रबन्धक का होगा।

संलग्नकः- 1 प्रति। भवदीय

ह०अपठनीय

उप शिक्षा निदेशक प्रथम मण्डल, मेरठ

पृ० सं०/ /94-95 तददिनांक

प्रतिलिपि प्रबन्धक के०एस० इण्टर कालेज कुरालसी (मु०नगर) को सूचना एवं आवश्यक कार्यवाही हेतु प्रेषित।

ह०अपठनीय

उप शिक्षा निदेशक प्रथम मण्डल, मेरठ।

निर्णय

उपर्युक्त विवेचन से स्पष्ट है कि श्री योगेन्द्र सिंह की प्रवक्ता जीव विज्ञान के पद पर नियुक्ति का प्रकरण माननीय न्यायालय इलाहाबाद में योजित याचिका सं० 17212/89 माननीय न्यायालय के निर्णयाधीन है, ऐसी स्थिति में श्री योगेन्द्र सिंह को प्रधानाचार्य पद पर किये गये चयन अर्ह/अनर्ह के सम्बन्ध में निर्णय किया जाना विधिसंगत न होगा।

In para 4 of the affidavit filed in support of the restoration application it is stated that the petitioner had Microbiology and Entomology at graduation level, which are equivalent to Zoology. The subjects studied by the petitioner at graduation level as appear from mark sheet of B.Sc (Ag) are as under:-

Part I - (i) Plant Pathology* Microbiology (ii) Agricultural Economics (iii) Entomology (iv) Plant protection - (a) disease control (b) insect-pest control (v) Olericulture & Flori culture (vi) Biochemistry including Dairy chemistry (vii) Soil and water conservation and (viii) General course – Basic Statistics.

Part- II (i) Elements of genetics (ii) Production of Field Crops (iii) Production of Fruit Crops and Fruits (iv) Dairy Cattle production (v) Plant Breeding and crop systematics (vi) Market Milk and Milk production (vii) Extension Education and community development. In M.Sc the petitioner studied the following subjects -

Part-I (i) Mathematics (ii) Principle of Genetics (iii) Cytobrid (iv) Stat. methods & exp. design and Morp. Anat & Emp., (v) Prin. of Bio & Eco. Botany;

Part-II (i)Principle of Plant breeding, (ii) Plant physiology (ii) Biochem. Mol. genetics (iv) Breeding of plant (iv) population biometrics.

In the Appendix A, amended Schedule - III under the U.P. Intermediate Education Act, the essential qualifications for the Zoology Teacher for Intermediate College are given, as follows:-

1.

M.sc. in Botany or Zoology, or 2. Trained with Agricultural Botany, Zoology in B.Sc, or 3. M.Sc with Agricultural Zoology, Botany in B.Sc, or 4. B.Sc with post-graduate diploma in Zoology conducted by Education Department, U.P., in any University or degree college.

The petitioner does not possess any of the qualification for being appointed as Lecturer in Zoology. He was informed that he was not qualified for the post of Lecturer Zoology in the year 1989 itself. The petitioner therefore was not eligible to be appointed as Lecturer in 'Zoology'. Where the petitioner's appointment on the initial stage itself was illegal, he did not have a right to be regularized and considered for appointment as Principal.

The delay condonation application, and restoration application are rejected.

We are of the view that if the application for condonation of delay is dismissed and consequentially the application for restoration, the question for examining the matter on merits would not arise.

Here, in the instant case, there was an order of regularization in favour of the appellant herein. Parties agree that considering the cause shown, the delay be condoned and the petition be restored to file.

In the light of that, impugned order dated 27.08.2010 is set aside. The delay as explained in the filing of the restoration application is accepted. The delay is accordingly condoned. The order dated 27.11.2003 is set aside. The writ petition shall stand restored to its original number. Matter is remanded back to the learned Single Judge for reconsideration according to law.

We make it clear that while deciding the matter on merits, the issues should be considered independently.

Appeal stands disposed of accordingly.

SUBMISSION ADVANCED ON BEHALF OF THE APPELLANT-WRIT PETITIONER

7.

I have considered the rival submissions made by learned counsel for the parties and in my opinion the submission made on behalf of the respondents that petitioner was not promoted to the post of principal cannot be accepted. There is no dispute that petitioner is senior most teacher of the College and she was entitled to officiate as principal. By resolution dated 5-12-1991 and the order dated 9-12-1991 the committee of management in fact had given effect to this legal position. Even if for the sake of argument, the contention of learned counsel for respondents is accepted that petitioner was only allowed to take charge and she was not appointed, after 14-7-1992 she became ad-hoc principal of the College in view of the amendment of Section 18 by Amending Act, i.e. U.P. Act No. 24 of 1992. Sub-section (4) of the Amended Section 18 leaves no doubt that a vacancy for the post of principal may be filled by promoting the senior most teacher in lecturer's grade. The facts that petitioner is senior-most teacher and she was working in lecturer grade are not disputed. For the aforesaid facts, it has not been left either for the management or the District Inspector of Schools to do any exercise except to promote the senior-most teacher in the lecturer grade to occupy the post of principal. In view of the aforesaid legal position, the petitioner was working in capacity of ad-hoc principal. The fact that she has not been paid salary for the office of principal could not change the aforesaid legal position as she has already claimed payment of the emoluments which she may be legally entitled. The terminology used in Section 21 of the Act is so wide that it shall cover even the impugned order dated 28-6-1992, Annexure 4 to the writ petition. Any order having effect of reduction in emoluments or in rank could not have effect until it was approved by the competent authority. In my opinion, respondent No. 1 was not justified in taking any decision on the fact being communicated to her by the Committee of management. The communication dated 5-7-1993, Annexure X to the counter affidavit, by the Regional Inspectress of Girls Schools, III Region, Bareilly was wholly misconceived. The respondent No. 1 ought to have taken action on the intimation of the committee of Management with regard to approval. If she could accord approval herself, decision should have been taken by her and papers should have been forwarded to the Commission for necessary approval under Section 21 of the Act. The case relied on by learned counsel for petitioner could not be applied in the present case as it was with regard to the legal position prior to amendment of Section 18 and the promotion which was subject matter of dispute in that case was with regard to lecturer appointed under the orders of principal. The facts of the present case are entirely different. Here the committee of management itself authorised petitioner to assume charge of the office of principal and discharge functions. Petitioner without any objection acted for a year. In these circumstances the position of petitioner with regard to principal could not be doubted.

SUBMISSION ON BEHALF OF THE RESPONDENT-STATE

वनस्पति विज्ञान अथवा जन्तु विज्ञान में एम०एस०सी० (प्रशिक्षित) अथवा कृषि विषयक वनस्पति विज्ञान के साथ एम०एस०सी०, बी०एस०सी० में जन्तु विज्ञान (प्रशिक्षित) अथवा कृषि विषयक जन्तु विज्ञान के साथ एम०एस०सी०, बी०एस०सी० में वनस्पति विज्ञान (प्रशिक्षित) अथवा यू०जी०सी० द्वारा मान्यता प्राप्त विश्विद्यालय/डिग्री कालेज से एम०एस०सी० (लाइफ साइंस) अथवा किसी विश्वविद्यालय या डिग्री कालेज में शिक्षा विभाग, उत्तर प्रदेश द्वारा आयोजित जीव विज्ञान में स्नातकोत्तर डिप्लोमा के साथ बी०एस०सी०।

15.

Mr. S.R. Singh, the learned senior counsel appearing on behalf of the respondents, on the other hand, submitted :

(a)

Appellant having not possessed any valid degree from a University recognised by the University Grants Commission, his appointment was illegal.

(b)

Rule 3 of 1993 Rules providing for a degree from a recognised university as a sine quo non for appointment to a post. A subsequent acquisition, therefore, would not come to his rescue.

(c)

Appellant having not fulfilled the conditions precedent for regularization of his services in terms of the provisions of the Uttar Pradesh Secondary Education Selection Board Act, 1982, the High Court has rightly rejected the said prayer.

18.

If the essential educational qualification for recruitment to a post is not satisfied, ordinarily the same cannot be condoned. Such an act cannot be ratified. An appointment which is contrary to the statute/statutory rules would be void in law. An illegality cannot be regularized, particularly, when the statute in no unmistakable term says so. Only an irregularity can be. {See Secretary, State of Karnataka and others Vs. Umadevi and others (2006) 4 SCC 1, National Fertilizers Ltd. And otehrs Vs. Somvir Singh (2006) 5SCC 493 and Post Master General, Koltakata and others Vs. Tutu Das (Dutta) (2007) 5 SCC 317.

21.

It is not in dispute that the said institution was not recognized by any University. A degree is recognized only if it is granted by a University constituted in terms of the University Grants Commission Act, 1956 or under any State or Parliamentary Act. No University can be established by a private management without any statutory backing.

22.

The management of the school, when it came to learn that the appellant did not possess a degree of B.Ed. from a recognised University, should have terminated his services forthwith. It did not do so for reasons best known to it. It has not been shown to us that the management of the school had any authority to allow the appellant to obtain the requisite degree from any other University during the tenure of his services. Even the Commission in its counter affidavit, although otherwise supports the case of the appellant, did not say so.

23.

Our attention has been drawn to a decision of the Punjab and Haryana High Court in Ram Bhagat Sharma and Others Vs. State of Haryana and Others [1997 (4) RSJ 134] wherein it was directed :

"With a view to protect the interest of the students community, we direct the Government of Haryana to take steps to prevent future recruitment of persons possessing qualifications awarded by Hindi Sahitya Sammelan, Allahabad, and/or Hindi Sahitya Sammelan, Prayag, Allahabad, and at the same time take appropriate measures to dispense with the services of the unqualified teachers. For this purpose, the Government of Haryana is directed to issue written instructions to all concerned that in future no appointment be given to the persons possessing qualifications by the institutions referred to herein above. We also direct the Government of Haryana to take steps for terminating the services of all such teachers who have secured employment on the basis of degrees/diplomas/certificates issued by Hindi Sajhitya Sammelan, Allahabad and/or Hindi Sahitya Sammelan, Prayag, Allahabad. However, those who have completed three years service should be given an opportunity to acquire the requisite qualification within a stipulated time. In case they fail to acquire such qualification, then appropriate order be passed to dispense with the services of such persons."

We, with respect, do not subscribe to the said view. In any event, it is not a case where, this Court is to protect the interest of the students. The question herein is as to whether the services of the appellant can be said to have been illegally terminated or not.

24.

A departmental proceeding against the appellant might have been initiated after the change of management. We will also assume that the said proceeding was initiated after the contempt proceeding was initiated. Appellant, however, has filed a writ application for issuance of or in the nature of a writ of mandamus. He, therefore, must establish existence of a legal right in himself and a corresponding legal duty in the State. If he did not possess the requisite qualification to hold a post, he could not have any legal right to continue. It was, therefore, immaterial as to why and when the said proceeding had been initiated against him.

25.

Reliance placed by Mr. P.S. Patwalia on Shainda Hasan Vs. State of Uttar Pradesh and others [(1990) 3 SCC 48] is not apposite. Therein a concession was made on behalf of the State that the University had agreed that asking the appellant therein to leave the job after 16 years will be doing injustice to her. Such a view might have been taken by this Court in exercise of its extra ordinary jurisdiction under Article 142 of the Constitution of India. The question, however, that arose therein was as to whether the Selection Committee could grant relaxation of the educational qualification vis-`-vis the experience required to be obtained. It was held that such a power did not exist in the Selection Committee.

26.

It was, therefore, a case where relaxation in regard to experience was sought for and granted. It was not a case where the appellant therein lacked basic educational qualification. Herein, we are concerned with a case where the appellant lacked basic educational qualification.

27.

Reliance has also been placed by Mr. Patwalia on Dr. M.S. Mudhol and Another Vs. S.D. Halegkar and Others [(1993) 3 SCC 591]. Therein a writ of quo warranto was sought for in a case involving the question as to whether a degree granted in favour of the appellant therein was equivalent to another degree or not. It was found that as public interest would not suffer, a writ of quo warranto may not be issued. The Court, therefore, did not exercise its discretionary jurisdiction.

11.

There can be no dispute to the settled legal proposition that the selection process commences on the date when applications are invited. Any person eligible on the last date of submission of the application has a right to be considered against the said vacancy provided he fulfils the requisite qualification.

12.

In U.P. Public Service Commission v. Alpana [(1994) 2 SCC 723 : 1994 SCC (L&S) 742 : (1994) 27 ATC 101], this Court, after considering a large number of its earlier judgments, held that eligibility conditions should be examined as on the last date for receipt of applications by the Commission. That too was a case where the result of a candidate was declared subsequent to the last date of submission of the applications. This Court held that as the result does not relate back to the date of examination and eligibility of the candidate is to be considered on the last date of submission of applications, therefore, a candidate, whose result has not been declared up to the last date of submission of applications, would not be eligible.

14.

In Harpal Kaur Chahal v. Director, Punjab Instructions [1995 Supp (4) SCC 706 : 1996 SCC (L&S) 226 : (1996) 32 ATC 172] this Court held : (SCC p. 707, para 2)

"2.

… It is to be seen that when the recruitment is sought to be made, the last date has been fixed for receipt of the applications. Such of those candidates, who possessed of all the qualifications as on that date, alone are eligible to apply for and to be considered for recruitment according to the rules."

(emphasis supplied)

22.

It also needs to be noted that like the present appellant there could be large number of candidates who were not eligible as per the requirement of rules/advertisement since they did not possess the required eligibility on the last date of submission of the application forms. Granting any benefit to the appellant would be violative of the doctrine of equality, a backbone of the fundamental rights under our Constitution. A large number of such candidates may not have applied considering themselves to be ineligible adhering to the statutory rules and the terms of the advertisement.

ANALYSIS/REASONING

The legislative journey of section 18 from 1982 till this date is quite interesting. The original section 18 stood as follows :-

"18.

(1) Where the management has notified a vacancy to the Commission in accordance with the provisions of this Act, and-

(a)

the Commission has failed to recommend the name of any suitable candidate for being appointed as a teacher specified in the Schedule within one year from the date of such notification; or

(b)

the post of such teacher has actually remained vacant for more than two months, then, the management may appoint, by direct recruitment or promotion, a teacher on purely ad hoc basis from amongst the persons possessing qualifications prescribed under the Intermediate Education Act, 1921 or the regulations made thereunder.

(2)

The provisions of sub-section (1) shall also apply to the appointment of a teacher (other than a teacher specified in the Schedule) on ad hoc basis with the substitution of the expression 'Board' for the expression "Commission".

(3)

Every appointment of an ad hoc teacher under sub-section (1) or sub-section (2) shall cease to have effect from the earliest of the following dates, namely-

(a)

when the candidate recommended by the Commission or the Board, as the case may be, joins the post;

(b)

when the period of one month referred to in sub-section (4) of section 11 expires;

(c)

thirtieth day of June following the date of such ad hoc appointment."

2.

Vacancies in which ad hoc appointment can be made: The management of an institution may appoint by promotion or by direct recruitment, a teacher on purely ad hoc basis in accordance with the provisions of this Order in the following cases, namely,-

(a)

in the case of a substantive vacancy existing on the date of commencement of this Order caused by death, retirement, resignation or otherwise;

(b)

in the case of a leave vacancy, where the whole or unexpired portion of the leaves is for a period exceeding two months on the date of such commencement;

(c)

where a vacancy of the nature specified in clause (a) or clause (b) comes into existence within a period of two months subsequent to the date of such commencement.

3.

Duration of ad hoc appointments: Every appointment of an ad hoc teacher under paragraph 2 shall cease to have effect from the earliest of the dates, namely,-

(a)

when the candidate recommended by the Commission or the Board joins the post; or

(b)

when the period of six months from the date of such ad hoc appointment expires.

5.

Ad hoc appointment by direct recruitment.-

(1)

Where any vacancy cannot be filled by promotion under paragraph 4, the same may be filled by direct recruitment in accordance with clauses (2) to (5).

(2)

The management shall, as soon as may be, inform the District Inspector of Schools about the details of the vacancy and such Inspector shall invite applications from the local Employment Exchange and also through public advertisement in at least two newspapers having adequate circulation in Uttar Pradesh.

(3)

Every application referred to in clause (2) shall be addressed to the District Inspector of Schools and shall be accompanied-

(a)

by a crossed postal order worth ten rupees payable to such Inspector;

(b)

by a self-addressed envelope bearing postal stamp for purposes of registration.

(4)

The District Inspector of Schools shall cause the best candidates selected on the basis of quality points specified in Appendix. The compilation of quality points may be done on remunerative basis by the retired Gazetted Government servants under the personal supervision of such Inspector.

(5)

If more than one teacher of the same subject or category is to be recruited for more than one institution, the names of the selected teachers and names of the institution shall be arranged in Hindi alphabetical order. The candidate whose name appears on the top of the list shall be allotted to the institution the name whereof appears on the top of the list of the institution. This process shall be repeated till both the lists are exhausted.

Explanation. In relation to an institution imparting instruction to women the expression 'District Inspector of Schools' shall mean the 'Regional Inspector of Girls' Schools'.

6.

Eligibility for appointment: Every appointment of teacher under paragraph 4 or 5 shall be subject to the following conditions, namely:

(a)

The candidate sought to be appointed by promotion or by direct recruitment must fulfil the essential qualifications laid down in Appendix A referred to in the regulation (1) of Chapter II of the regulations made under the Intermediate Education Act, 1921.

(b)

The candidate sought to be appointed by direct recruitment under paragraph 5 shall not be related to any member of the Committee of Management in the manner indicated in Schedule II to the Intermediate Education Act, 1921.

(c)

The candidate sought to be appointed by promotion under paragraph 4 must have been serving the institution in substantive capacity from before the date of commencement of this Order.

21.

Restriction on dismissal etc. of teachers. The management shall not, except with the prior approval of the Board, dismiss any teacher or remove him from service, or serve on him any notice of removal from service, or reduce him in rank or reduce his emoluments or withhold his increment for any period (whether temporarily or permanently) and any such thing done without such prior approval shall be void.

teacher means a person employed for imparting instructions in an Institution and includes a Principal or a Headmaster

Void ab initio (ab i-nish-ee-oh). (17C) Null from the beginning, as from the first moment when a contract is entered into. A contract is void ab initio if it seriously offends law or public policy, in contrast to a contract that is merely voidable at the election of one party to the contract.

34.

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. Reference in this respect could be made to the judgments of this Court in Ayurvidya Prasarak Mandal v. Geeta Bhaskar Pendse [Ayurvidya Prasarak Mandal v. Geeta Bhaskar Pendse, (1991) 3 SCC 246 : 1991 SCC (L&S) 900], J&K Public Service Commission v. Narinder Mohan [J&K Public Service Commission v. Narinder Mohan, (1994) 2 SCC 630 : 1994 SCC (L&S) 723], Official Liquidator v. Dayanand [Official Liquidator v. Dayanand, (2008) 10 SCC 1 : (2009) 1 SCC (L&S) 943] and Union of India v. Raghuwar Pal Singh [Union of India v. Raghuwar Pal Singh, (2018) 15 SCC 463 : (2018) 2 SCC (L&S) 823] .

35.

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 are applicable to aided educational institution. Undisputedly, the institutions in which the applicants/teachers were appointed, were recognised as aided M.E. Schools vide G.O. dated 12-9-1980. It is also not in dispute that the appointments so made were subsequent to the schools being recognised as aided schools. As such, the contention in that regard deserves to be rejected.

(emphasis added)

7.

Existence of statutory rules is not a condition precedent to appoint an eligible and fit person to a post. The executive power is co-extensive with legislative power of the State and under Article 162, the State can create civil posts and fill them up according to executive instructions consistent with Articles 14 and 16 of the Constitution. It is settled law that once statutory rules have been made, the appointment shall be only in accordance with the rules. The executive power could be exercised only to fill in the gaps but the instructions cannot and should not supplant the law, but only supplement the law. The Governor exercising the power under proviso to Section 125 (Article 309 of the Constitution of India) made the rules which do not expressly give the power to the State Government to make ad hoc appointments. No such rule has been brought to our notice. No express power was conferred and in fact cannot be conferred to relax the rules of recruitment. Having made the rules the executive cannot fall back upon its general power under Article 162 to regularise the ad hoc appointments under the Rules. Rule 9(3) empowers only to relax the qualification of age in particular exigencies which cannot be called in aid to relax the rules of recruitment. To tide over unforeseen exigencies, power to make ad hoc appointments, may be visualised as envisaged by Explanation (b) to Rule 4 but it expressly states that by virtue of such appointment, the ad hoc appointee does not become member of the service. The Rules prescribe direct recruitment/promotion by selection as the mode of recruitment which would be done only by PSC or promotion committee duly constituted and by no other body. Therefore, ad hoc employee should be replaced as expeditiously as possible by direct recruits. A little leeway to make ad hoc appointment due to emergent exigencies, does not clothe the executive Government with power to relax the recruitment or to regularise such appointment nor to claim such appointments to be regular or in accordance with rules. Back door ad hoc appointments at the behest of power source or otherwise and recruitment according to rules are mutually antagonistic and strange bed partners. They cannot co-exist in the same sheath. The former is in negation of fair play. The later are the product of order and regularity. Every eligible person need not necessarily be fit to be appointed to a post or office under the State, selection according to rules by a properly constituted commission and fitment for appointment assures fairness in selection and inhibits arbitrariness in appointments. In view of the Explanation (b) to Rule 4, the ad hoc appointments to any post in any of the three wings of the services under the Rules are therefore de hors the Rules. Appointments of Respondents 1 to 6 cannot be held to be in accordance with the Rules.

31 . The jurisprudence around irregular v. illegal appointments must not be blurred. An irregular appointment is one where procedure is not strictly followed but the appointee is otherwise qualified and the post is sanctioned. An illegal appointment, on the other hand, is void ab initio, such as where the appointee is ineligible or the post does not exist. When appointments are questioned on grounds of irregularity, the inquiry must not end with detecting the infirmity but must proceed further to distinguish those whose appointments are unimpeachable. Justice demands separation, not erasure.

35.

It must be underscored that the jurisprudential divide between irregular and illegal appointments is neither artificial nor academic. An appointment may be irregular if it deviates from established procedure, but it crosses into the realm of illegality only where it violates statutory mandates, is made without the existence of a sanctioned post, or is tainted by fraud. Conflating the two categories leads to manifest injustice, particularly when individuals, who have no role in the procedural defect, are visited with the severest consequence of termination.

(emphasis added)

67.

The Act lays down an elaborate procedure for making appointment on the post of a teacher. Section 10 provides that the Management of the institution has to notify the vacancy to the Commission and Section 11 provides that the Commission after holding interview shall prepare a panel. After receipt of panel, name of the candidate selected shall be intimated to the Management which shall issue an appointment letter to him. Under Section 2(k) teacher means a person employed for imparting instruction in an institution and includes a Principal or a Headmaster and under Rule 2(hh) of U.P. Secondary Education Services Commission Rules (hereinafter referred to as the Rules) vacancy means a vacancy arising out as a result of death, retirement, resignation, termination, dismissal, creation of new post or appointment/promotion of the incumbent to any higher post in a substantive capacity. Since under Section 10 a vacancy has to be notified to the Commission, it follows as a corollary that the Commission has to make selection of teacher, Headmaster or Principal, as the case may be, only for a substantive vacancy as defined in rule 2(hh) and not for a short term ivacancy. Sub-section (1) of Section 16 lays down that subject to provisions of Sections 18, 21B, 21C, 21D and 33 and 33A every oppointment of a teacher specified in ihe Schedule shall be made by the Management only on the recommendation of the Commission. Sub-section (2) of Section 16 lays down that every appointment of a teacher, in contravention of the provisions of sub-section (1), shall be void. So the appointment is to be made only on the recommendation of the Commission otherwise it would be void. The only exception is Section 18, where the Management has been given the right to make ad hoc appointment of teacher, if the conditions enumerated therein are satisfied. Therefore, Section 18 is the repository of power of the Management to make ad hoc appointment of a teacher on a substantive vacancy. In absence of such a provision the Management will have no authority to make even an ad hoc appointment on a substantive vacancy.

68.

Though Section 18 empowers the Management it makes ad hoc appointment on a substantive vacancy, the procedure to make such appointment has, however, not been given therein. A short term vacancy may arise on account of grant of leave or suspension of a teacher and such a vacancy cannot be filled through the Commission nor the procedure for filling up such a vacancy has been given in the Act or Rules. As the procedure for making ad hoc appointment on substantive or short term vacancy had not been given there was difficulty and necessary condition for exercise of power under Section 33 came into existence.

69.

The Government of U.P. has issued three Removal of Difficulties Orders on July 31, 1981; September 11, 1981; and January 30, 1982 (hereinafter referred to as the First Order, Second Order and Third Order respectively) under sub-section (1) of Section 33 of the Act. The First Order governs the case of a substantive vacancy as will be evident from para 2 thereof. Para 4 of this Order gives the procedure for filling in the vacancy by promotion and para 5 gives the procedure for filling in the vacancy by direct recruitment. During the course of argument much emphasis has been laid on the word 'may occurring in para 4. It has been urged that use of word 'may' shows that the provision is directory and not mandatory. But reading it together with para 5 would show that first the vacancy has to be filled in by promotion and only where it is not possible to do so that the Management can take recourse to direct recruitment. It is a well known principle of interpretation that every clause of a statute is to be construed with reference to context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute. Construction is to be made of all the parts together and not of one part only by itself. Individual words are not considered in isolation but may have their meaning determined by other words in the section in which they occur (see Maxwell on Interpretation of Statutes 12th Edn. pages 47 and 58). In Societe De Traction v. Kamani Engineering, AIR 1964 SC 558, it has been held as under (para 9):

"The use of the expression 'may' is not decisive. Having regard to the context the expression 'may' used in a Statute has varying significance. In some context it is purely permissive, in other, it may confer a power and make it obligatory upon the person invested with the power to exercise it as laid down."

81.

Under the Scheme of the Act the Management has no power of selection and it is bound to appoint a person as a teacher : whose name has been forwarded in the panel prepared by the selection Commission after holding a process of Selection. Since under Section 18 a power to make ad hoc appointment is conferred on the management its provision must be strictly followed. It was Held in Taylor v. Taylor, (1875) 1 Ch. D 426 that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This was reiterated by Privy Council in Nazir Ahmad v. Emperor, AIR 1936 PC 253 (2) and by Supreme Court in Ram Chandra v. Govind, (1975) 1 SCC 559: AIR 1975 SC 915, Hukam Chand v. Union of India, (1976) 2 SCC 128: AIR 1976 SC 789 and in several other cases.

82.

The opening part of Section 18 of the Principal Act uses the expression — where the Management has notified a vacancy to the Commission in accordance with the provision of the Act. Sub-section (1) of Section 10 says that management shall notify the vacancy to the Commission in such manner and through such officer or authority as may be prescribed. Rule 4 provides that management shall determine and, intimate to the Commission the vacancies existing or likely to fall vacant in proforma given in Appendix 'A', which is a Requisition Form. The Management has to furnish all the details like number of students, number of teachers, subjects and sections etc. as mentioned in Appendix 'A'. Only after the notification had been done by sending the Requisition Form (Appendix A) and the period mentioned in sub-clause (a) or (b) of sub-section (1)-of Section 18 had elapsed that the management became entitled to proceed in accordance with the First order in the period prior to July 14, 1992. The notification of the vacancy has to be done in the same manner even after enforcement of U.P. Act 24 of 1992. The provisions of Removal of Difficulties Orders, whichever and wherever applicable should be strictly followed, failing which the ad hoc appointment so made would be invalid. This view finds support from the observation made by a Division Bench in Santosh Kumar Singh v. State of U.P., 1993 (2) ESC 158, which while considering the provisions of Section 16 of U.P. Higher Education Services Commission Act which is somewhat similar to Section 18 of the Act, held that ad hoc appointment made without notifying the vacancy would be illegal.

74.

It is well settled principle in law that issuance of a writ or quashing/setting aside of an order if revives another pernicious or wrong or illegal order then in that eventuality the writ court should not interfere in the matter and should refuse to exercise its discretionary power conferred upon it under Article 226 of the Constitution of India. The writ court should not quash the order if it revives a wrong or illegal order. Vide : Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828; Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar, (1999) 8 SCC 16: AIR 1999 SC 3609: 1999 AIR SCW 3623; M.C. Mehta v. Union of India, (1999) 6 SCC 237: AIR 1999 SC 2583; Mallikarjuna Mudhagal Nagappa v. State of Karnataka, (2000) 7 SCC 238: AIR 2000 SC 2976: 2000 AIR SCW 3289; and Chandra Singh v. State of Rajasthan, (2003) 6 SCC 545: AIR 2003 SC 2889: 2003 AIR SCW 3518 and Raj Kumar Soni v. State of U.P., (2007) 10 SCC 635.

Section 33A – Regularisation of Certain Appointments

(1)

Every teacher directly appointed, before the commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Ordinance, 1985, on ad hoc basis against a substantive vacancy in accordance with Paragraph 2 of the Uttar Pradesh Secondary Education Service Commission (Removal of Difficulties) Order, 1981, as amended from time to time, who possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with, the provisions of the Intermediate Education Act, 1921, shall, with effect from the date of such commencement, be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such appointment up to the date of such commencement.

(emphasis added)

(1-A) Every teacher appointed by promotion, on ad hoc basis against a substantive vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, as amended from time to time, who possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with the provisions of, the Intermediate Education Act, 1921 shall, with effect from the date of commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Act, 1991, be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such ad hoc appointment to the date of such commencement.

(1-B) Every teacher directly appointed after June 12, 1985 and before May 13, 1989 on ad hoc basis against a substantive vacancy in the Certificate of Teaching grade, in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, as amended from time to time, who possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with the provisions of, the Intermediate Education Act, 1921 shall, with effect from the commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Act, 1991, be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such ad hoc appointment to the date of such commencement.

(1-C) Every teacher appointed by promotion or by direct recruitment before July 31, 1988 on ad hoc basis against a substantive vacancy in accordance with Section 18, who possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with the provisions of the Intermediate Education Act, 1921 shall, with effect from the date of commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Act, 1991 be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such ad hoc appointment to the date of such commencement.

(2)

Every teacher deemed to have been appointed in a substantive capacity under sub-section (1) or (1-A) or (1-B) or (1-C), shall be deemed to be on probation from the date of commencement referred to in sub- section (1) or (1-A) or (1-B) or (1-C) as the case may be.

(3)

Nothing in this section shall be construed to entitle any teacher to substantive appointment-

(a)

if on the date of commencement referred to in sub-section (1) or (1-A) or (1-B) or (1-C) as the case may be), such post had already been filled or selection for such post had already been made in accordance with this Act, or

(b)

if such teacher was related to any member of the Committee of Management or the Principal or Head Master of the institution concerned.

Explanation- For the purposes of this sub-section a person shall be deemed to be related to another, if-

(i)

they are members of a Hindu undivided family; or

(ii)

they are husband and wife; or

(iii)

the one is related to the other in the manner indicated in the Second Schedule to the Intermediate Education Act, 1921.

18.

Ratification, in its ordinary legal signification, denotes the confirmation or adoption, by a person or body possessing the requisite authority, of an act earlier done on its behalf without such authority, or done irregularly, so that the act is treated as valid from its inception. Black's Law Dictionary describes ratification as "the confirmation of a previous act done either by the party himself or by another". The doctrine finds its origin in the maxim ratihabitio mandato aequiparatur, a subsequent ratification is equivalent to a prior command, refined further by the maxim omnis ratihabitio retrotrahitur et mandato priori aequiparatur, which imports the principle of relation- back: a ratified act is deemed valid from the date of the original, unauthorised act, and not merely from the date of ratification.

19.

This Court has, on more than one occasion, applied the doctrine in the above sense. From these decisions, following legal principles about doctrine of ratification can be culled out:

(i)

Ratification means making a previously invalid act valid. It is the subsequent approval of an act that was initially done without authority.

(ii)

A subsequent ratification is equivalent to prior authority. Once the competent authority ratifies an act, the law treats it as though the authority had existed from the beginning. This is based on the maxim ratihabitio mandato aequiparatur.

(iii)

Ratification operates retrospectively. It relates back to the date on which the original act was performed and cures the defect arising from the absence of prior authority.

(iv)

Only the competent authority can ratify an invalid act. The authority which is legally empowered to perform the act must itself approve or adopt the earlier unauthorised action.

Sri Parmeshwari Prasad Gupta v. Union of India, (1973) 2 SCC 543; High Court of Judicature for Rajasthan v. P.P. Singh & Anr., (2003) 4 SCC 239; Maharashtra State Minin Corpn. v. Sunil S/o Pundikarao Pathak, (2006) 5 SCC 96, National Institute of Technology & Anr. v. Pannalal Choudhury & Anr., (2015) 11 SCC 669 and Municipal Commissioner, Jamnagar Municipal Corporation (supra)

(v)

Express approval of the earlier action is sufficient. It is not necessary for the competent authority to pass a fresh order. A resolution or decision approving the earlier unauthorised act amounts to valid ratification.

(vi)

Ratification cures defects of authority, not acts that are inherently illegal. The doctrine applies where the act could have been validly performed by the competent authority in the first place. It cannot validate an act that is void because it is prohibited by law or beyond the power of the authority.

(emphasis added)

20.

Another principle which arises for consideration in these appeals may be stated. A resignation, even where accepted in the first instance by one not clothed with authority to accept it, may nonetheless become a consummated and irrevocable transaction where both sides have, by their conduct, treated it as final and altered their positions upon that footing. In such a case, an employee is precluded, not by any doctrine of curative ratification, but by the ordinary principle against approbation and reprobation, from later impugning the very transaction he brought about and from which he has already taken the entire benefit.

21.

This principle finds support in a decision of the House of Lords4 which is noted in a decision of this Court5. There, a resignation tendered on the footing that formal acceptance would follow at a later date was held incapable of unilateral withdrawal, the resigner having, in Lord Halsbury's words, already "consummated" the arrangement by his own conduct before he purported to revoke. Lord Watson likewise held that a resigner who has done all that lay in his power to complete a transaction cannot later be permitted to upset it merely because formal acceptance was still awaited.

Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.

173.

The argument in fact ask to ignore a blatant breach of law that the beneficiaries of such breach should be given benefit. The mere fact of continuing in service ignoring statuary provision is of no legal consequence. None can claim a benefit arising from an illegality which continued to be flouted by them. In the cases where continuance was on account of interim orders passed by Court, argument suggests that the principle of Actus Curiae Neminem Gravabit should be ignored and an interim order of Court should be read as if it has conferred different right upon the beneficiary though ultimately his continuance was found erroneous and illegal and contrary to statuary provision contained in Para 3 of Second Order. We have no hesitation in rejecting this submission.

175.

Even otherwise, no interpretation of statutory provision can be made, which may encourage blatant breach of statute. When a person is bound to cease to continue as ad-hoc appointee, if any condition under Para 3 of Second Order is attracted, he could not have validly continued thereafter, at all. His legal termination comes into effect by operation of law. A declaration has been made in statutory provision about cessation and that has to be given effect to if rule of law has to prevail.

177.

The question, whether an interim order can confer a new right, which is not otherwise ultimately found in favour of such beneficiary and the case found liable for dismissal, has been considered time and again and issue has been answered against such beneficiaries. We do not propose to burden this judgment with all such authorities and we refer to a judgment of Apex Court dealing with this issue directly. In Raghvendra Rao etc. Vs. State of Karnataka and others, JT 2009 (2) SC 520 Court has observed: "It is now a well-settled principle of law that merely because an employee had continued under cover of an order of Court, he would not be entitled to any right to be absorbed or made permanent in the service."

(emphasis added)

19.

It is true that the appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and thus, void ab initio. If his appointment has not been granted approval by the statutory authority, no exception can be taken only because the appellant had worked for a long time. The same by itself, in our opinion, cannot form the basis for obtaining a writ of or in the nature of mandamus; as it is well known that for the said purpose, the writ petitioner must establish a legal right in himself and a corresponding legal duty in the State. (See Food Corpn. of India v. Ashish Kumar Ganguly, (2009) 7 SCC 734. Sympathy or sentiments alone, it is well settled, cannot form the basis for issuing a writ of or in the nature of mandamus. (See State of M.P. v. Sanjay Kumar Pathak, (2008) 1 SCC 456)I.

18.

...An appointment which is contrary to the statute/statutory rules would be void in law. An illegality cannot be regularized, particularly, when the statute in no unmistakable term says so. Only an irregularity can be. [See Secy., State of Karnataka v. Umadevi (3), (2006) 4 SCC 1, National Fertilizers Ltd. v. Somvir Singh (2006) 5 SCC 493 and Post Master General, Kolkata v. Tutu Das (Dutta), (2007) 5 SCC 317.]

115.

We are afraid the High Court fell in grave error in allowing the aforesaid four officers to continue their services in the PW(B&R) Department even after declaring their deputation and absorption as illegal and bad in law. Illegality means something which is contrary to law; something which is wrong right from the inception. It is void ab initio. Illegality cannot be cured and made legal and valid by lapse of time. Illegality, which is distinct and different from irregularity, cannot be regularized by taking a sympathetic view on the ground of long continuance in service. This position has been explained by a Constitution Bench of this Court in Uma Devi. If the appointment itself is in infraction of the rules, in this case the 1965 Rules, it is an illegality. Such an illegality cannot be cured by resorting to the novel method of absorption which has been explained as appointment by transfer.