REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2568 OF 2006

Pramod Kumar …Appellant

  Versus

U.P. Secondary Education Services  Commission & Ors. …Respondents

J U D G M E N T

S.B. SINHA,  J :

1. Appellant was appointed as an Assistant Teacher in C.T. Grade in an

Intermediate  College.    Admittedly,  essential  qualifications  and  other

conditions  for  recruitment  therefor  are  prescribed  by  Uttar  Pradesh

Secondary Education Services Selection Boards Act, 1982 (the Act) and the

Rules framed thereunder.  Section 16 of the Act provides for the essential

qualifications.    In terms of the Act, rules were framed by the State of Uttar

Pradesh in 1993 known as the Uttar Pradesh Secondary Education Services

Commission Rules (the Rules).

Section 16 of the Act reads, thus :

“16. Appointments  to  be  made  only  on  the recommendations  of  the  Board  –  (1) Notwithstanding anything to the contrary contained in  the  Intermediate  Education  Act,  1921  or  the regulations  made  thereunder  but  subject  to  the provisions of Sections 12, 18, 21-B, 21-C, 21-D, 33, 33-A,  33-B,  33-C,  33-D,  33-E  and  33-F,  every appointment of a teacher, shall on or after the date of  the  commencement  of  the  Uttar  Pradesh Secondary  Education  Services  Selection  Board (Amendment)  Act,  2001  be  made  by  the management  only  on  the  recommendation  of  the Board”:

Provided  that  in  respect  of  retrenched employees, the provisions of Section 16-EE of the Intermediate  Education  Act,  1921,  shall  mutatis mutandis apply:

Provided  further  that  the  appointment  of  a teacher by transfer from one Institution to another, may be  made  in  accordance  with  the  regulations made under Clause (c) of sub-section (2) of Section 16-G of the Intermediate Education Act, 1921:

(2)Any appointment  made in  contravention  of  the provisions of sub-section (1) shall be void.”

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2. The minimum qualification for Masters and Teachers were laid down

in the Rules as prescribed under Section 16E, 16F and Section 16FF of the

Act.  

Rule 3 of the Rules reads as under:-

“3. Qualifications  and  experience,  etc.  for appointment as teacher. - (1) The minimum academic qualification for appointment as teacher shall be as given in  Regulation  1  under  Chapter  II  of  the  Regulations, framed under the Intermediate Education Act, 1921.

(2) No male person shall be eligible for appointment to the post of the head of an institution or teacher in a girls institution.

Provided  that  nothing  contained  in  this  sub-rule  shall apply in relation to –

(i) a  teacher  already  working  in  a  permanent capacity  in  a  girls  institution  for  promotion  or appointment to any higher post of a teacher not being the post of the head of an institution in the same institution.

(ii) Appointment  as  a  teacher  for  the  subject  of music in an institution to a person who is blind.

Provided further that when a suitable lady candidate is not available for appointment in a girls institution for the  post  of  a  teacher,  not  being  the  post  of  head  of institution,  or  for  any  other  sufficient  reason,  the Commission is  satisfied that  it  is  in the interest  of the students  so to do, it  may recommend a male candidate for such post:

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Provided  also  that,  before  recommending  a  male candidate in accordance with the preceding proviso, the Commission may obtain and consider  the views of the Director and Management.”

4. It is neither in doubt nor in dispute that prior to coming into force of

the said Act, the matters relating to recruitment of Assistant Teachers used

to be governed by the U.P. Intermediate Education Act, 1921 (1921 Act).

A bare perusal of the aforementioned provisions read with those of 1921

Act  would  clearly show that  the possession of  a graduate  degree from a

University recognized under the University Grants Commission Act (UGC

Act) or any other State Act was at all material and still is imperative.  

5. Appellant  admittedly  did  his  B.Ed.  Degree  from  Maithili  Vishwa

Vidyapeeth, Sankat Mochan Dham Darbhanga, Bihar.    The name of the

said institution allegedly figured in a ‘Directory of Institutions for Higher

Education’, published by Ministry of Education and Culture, Government of

India  in  the  year  1982.   It,  however,  stands  admitted  that  it  was  not  an

institution recognized under the UGC Act.

6. He  was  appointed  on  29.11.1988  by  the  Principal/Manager,  Shri

Jawahar Inter College Bamnauli (Meerut) stating;

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“You  are  hereby  informed  with  pleasure  that  the teacher’s  selection  committee  of  the  college  has appointed  you  in  short  term  vacancy  as  ad-hoc assistant  teacher  in  C.T.  Grade  on  the  basis  of interview held on 20.11.1988 up to the reversion of Sh. Shiv Kumar Sharma at his post or vacancy filled up and joined with a person selected by commission at the above post.

Please  join  the  duty  at  above  post  within  10  days, otherwise  this  appointment  letter  of  yours  will  be deemed as cancelled.”

7. It became known to the University that he had not been possessing a

degree granted by a university recognized by the Commission.

He was asked to obtain a B.Ed. degree from a recognized University

within a period of two years.   An opportunity was granted to him to obtain

such a degree by a letter dated 18.2.1993 stating;

“You, Shri Pramod Kumar, Asst. Teacher CT Grade, know  that  you  have  acquired  B.Ed.  degree  from Maithili Vishwavidyapeeth Darbhanga.  We came to know from reliable sources that the said University from where you have acquired B.Ed. degree has not been recognized by University Grants Commission.

Earlier  also  by  the  Manager  of  Institution  Shri Naresh Singh Rathi has also directed you to acquire B.Ed. degree from a recognized University within a period of two years.   Now I, as a last opportunity, direct  you  to  acquire  B.Ed.  degree  from  a recognized  University.    You  are  requested  to acquire B.Ed. degree in future otherwise Managing

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Committee shall be constrained to take appropriate action.”

8. He  prayed  for  appearing  in  the  said  examination  in  B.Ed.

Correspondence Examination from Maharshi Dayanand University, Rohtak

(Haryana).   Allegedly,  such  permission  was  granted  and  he  obtained  a

requisite  degree.    Before  us,  however,  only  a  marksheet  issued  by the

Controller of Examination of Maharshi  Dayanand University, Rohtak has

been  placed.    Whether  the  Correspondence  Course  for  B.Ed.  Degree

granted by the said University is valid and recognized by the State of U.P.

or not is not known.

9. Inter alia on the premise that he had not been paid his salary, he filed

a Writ Petition before the High Court of Judicature at Allahabad which was

marked  as  Civil  Miscellaneous  Writ  Petition  No.  1338  of  1989.   Upon

noticing that he had been getting his salary from 1.1.1991, by a Judgment

and Order dated 5.7.1996, the High Court directed the respondents to pay

the arrears of salary from 1.12.1988 to 31.12.1990.

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10. Allegedly,  as  the  said  Order  was  not  complied  with,  a  Contempt

Petition  was  filed  wherein  a  show cause  notice  was  issued by the  High

Court.    

It is, however, not in dispute that a notice to show cause was served

upon him on or about 11.1.1987, on the premise charge that he had obtained

his appointment on the basis of a fabricated and illegal B.Ed. degree.  Cause

was shown by him on 16.1.1997.

11. A  departmental  proceeding  was  thereafter  initiated  against  the

appellant.  On completion thereof, his services were terminated by an order

dated 12.2.1997.   He filed a Writ Petition questioning the correctness of the

said order.   By reason of a judgment and order dated 9.3.1997, a learned

Single Judge of the High Court dismissed the said Writ Petition stating :

“After  considering  respective  contentions  of  the parties and in view of the admitted facts, I find that the  petitioner  was  appointed  originally  when admittedly he was not having proper qualification. The  petitioner  has  failed  to  show  under  what circumstances he could be validly appointed on the basis of such qualification of bachelor of education degree  awarded  by  a  university  which  was  non recognised.   That being so the appointment itself is bad.   No question of estoppel  also arises  in such case.   The law in this connection has been decided in the case of Ravinder Sharma and Another versus State  of  Punjab  and  Others  reported  on  1995  1 S.C.C. 138.

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In present case the petitioner’s appointment was not having  an  approval  and  he  was  only  paid  salary under the court’s order.   Moreover, admittedly the petitioner’s appointment was without there being a proper qualification and as such the appointment of the petitioner was in violation of section 16-E of the U.P.  Intermediate  Education  Act,  1921.    In  the circumstances,  the  petitioner  is  not  entitled  to protection under section 16-C(3) of the said act.”  

12. The High Court, furthermore, in its judgment took into consideration

the  contention  of  the  appellant  that  his  services  should  have  been

regularised in terms of Section 33-A and Section 33-B of the Uttar Pradesh

Secondary Education Services Selection Board Act, 1982, as he had been

possessing the prescribed qualification at the material point of time.

13. A Special Appeal preferred by the appellant against the said judgment

and order has been dismissed by the Division Bench holding;

“Considering  the  totality  of  the  facts  and circumstances  as  discussed  above,  we  are  of  the view that  the initial  appointment of the petitioner, being wholly illegal and void by virtue of its being de hors the rules his appointment to the said post of assistant  teacher  in  the  Institution  could  not  be permitted  to  continue  any  more,  even  if  he  had managed  subsequently  to  obtain  another  of  B.Ed. We are in full agreement with the Ld. Single Judge who has not found any good ground for interference under  the  extra  ordinary  jurisdiction  envisaged under Article 226 of the Constitution of India.   The

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decision  given in  the  writ  petition,  thus,  does  not require  to  be  disturbed  in  the  present  intra  court appeal, which lacks merits and is hereby dismissed with no order as to cost.”

14. Mr. P.S. Patwalia, the learned senior counsel appearing on behalf of

the appellant in support of this appeal inter alia submitted :

(i) Keeping  in  view  the  fact  that  the  appellant  did  not  conceal  any

material  fact  and  the  management  was  aware  that  the  degree

possessed by him was not granted by a recognized university, it is not

a  case  where  he  can  be  said  to  have  committed  a  fraud  upon  the

institution.   

(ii) In any event, as the management had permitted him to obtain a fresh

degree which having been obtained,  his services  should have been

directed to be continued.   

(iii) The  action  of  the  management  was  mala  fide  as  the  departmental

proceeding was initiated only after the change in management and in

view of institution of a contempt petition against the management of

the institution.    

(iv) Appellant having served the institution for more than nine years from

1988, the High Court should have allowed the writ application.

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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.

17. The qualifications for holding a post  have been laid down under a

statute.   Any appointment in violation thereof would be a nullity.

18. It is a matter of some concern that appointments are being offered by

the  authorities  of  the  State  without  verifying  the  fact  as  to  whether  the

degree(s) possessed by the candidate(s) are valid or not.  It was an ad hoc

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appointment.  Why despite the same, he was allowed to obtain degree from

another university is not known

19. 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 (3) and Others

[(2006)  4  SCC  1]  National  Fertilizers  Ltd.  and  Ors. Vs. Somvir  Singh

[(2006)5SCC493] and Post Master General, Kolkata and Ors.

Vs. Tutu Das (Dutta) [(2007)5SCC317] }

20. Various  institutions  have  sprung  up  in  different  parts  of  India

representing  that  their  degrees  are recognized.    However,  even no such

representation  appears  to  have  been  made  to  the  appellant  by  the  said

institution.  The directory of institutions for higher education merely gives

details  of  the  institutions.   No statement  was  made therein  that  it  was  a

recognised university.   

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21. Maithili Vishwa Vidyapeeth Sankat Mochan Dham was a name given

to an institution.   It was not a University.   It is said to have been founded in

the year 1962.    

Admittedly, it is a privately managed institution.  Although it offered

a  large  number  of  courses  like  Madhyama,  Visarad,  Shastri,  Acharya,

Vidyabhaskar,  Vidyaratna,  Vidyavaridhi,  Vidyavachaspati,

Mahamahopadhyaya, the number of teachers therein were nine only.   What

sort of education was imparted therein is not known.   How an institution

could be run with a teacher strength of nine can very well be imagined.

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

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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.    

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.”

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23. 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.    

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

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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-à-vis the experience required to be obtained.   It was held

that such a power did not exist in the Selection Committee.

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.  

25. 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.

26. Yet again reliance has been placed on Santosh Yadav (Smt.) Vs. State

of Haryana and Others [(1996) 9 SCC 320].   Appellant therein was having

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a diploma which was not approved by the State of Haryana and despite the

same, teachers were appointed to meet the State’s educational needs.   The

validity of the said degree was not in question.  Not only appointments were

made  but  also  appointment  to  the  appellant  was  offered  in  1980.   His

services were confirmed in 1984 and sought to be terminated in the year

1990.   This Court noticed that a relaxation was granted by the State itself

which  was  available  to  her  and  others  similarly  situated.   She,  having

obtained regularisation in her service, it was wrong and arbitrary on the part

of educational department and the school to deprive her of the job.   The

same is not the case here.

27. A  similar  question,  on  the  other  hand,  came  up  for  consideration

before  this  Court  in  Ravinder  Sharma  (Smt.)  and  Another Vs.  State  of

Punjab and Others [(1995) 1 SCC 138] wherein a three Judges’ Bench held;

“12. The appellant  was directly appointed.    In such a case, the qualification must be either:

(i) A Graduate/Intermediate second class or, (ii) Matric first class.

Admittedly,  the  appellant  did  not  possess  this qualification.   That  being  so,  the appointment  is bad.    The  Commission  recommended  to  the Government  for  relaxation  of  the  qualification under  Regulation  7  of  the  Regulations.   The Government  rejected  that  recommendation.

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Where,  therefore,  the  appointment  was  clearly against Regulation 7, it was liable to be set aside. That being so, no question of estoppel would ever arise.   We respectfully agree with the view taken by the High Court.”

28. Almost to the same effect is the decision of this Court in Mohd. Sartaj

and Anr. Vs. State of U.P. and Others [JT 2006 (1) SC 331] holding;

“It is settled law that the qualification should have been seen which the candidate possessed on the date of recruitment and not at a later stage unless rules to that  regard  permit  it.   The minimum qualification prescribed under Rule 8 should be fulfilled on the date  of  recruitment.   Equivalence  of  degree  of Moallium-e-Urdu, Jamia Urdu Aligarh with that of B.T.C. in the year 1994 would not entail the benefit to the appellants on the date they were appointed. The appellants could not have been appointed to the post  of  Asstt.  Teachers  without  having  training required  under  Rule  8.    That  being  the  case,  the appointments  of  the  appellants  were  de  hors  the Rules and could not be treated to be continued.   For the aforesaid reasons, we do not find any substance in the appeals and are, accordingly, dismissed.”  

29. Recently   again  in  Ashok  Kumar  Sonkar Vs.  Union  of  India  and

Others [(2007) 4 SCC 54], it was held;

“16.  Indisputably, the appellant herein did not hold the requisite qualification as on the said cut-of date. He was, therefore, not eligible therefor.”

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30. Some arguments  have  also  been  advanced  before  us  in  regard  to

applicability of Removal of Difficulties Orders Issued under U.P. Secondary

Education  Services  Selection  Board  Act,  1982.   The  services  of  the

appellant had been terminated in the year 1997 and the cut off date having

been fixed on 1998, the said act,  in our opinion,  is  not  applicable.   The

benefits rendered thereunder would not be not applicable in view of the Full

Bench  decision  of  the  High  Court  in  Radha  Raizada Vs. Committee  of

Management, Vidyawati Darbari Girls’ College [1994 All. L.J. 1077] which

has been approved by this Court in Prabhat Kumar Sharma and Others Vs.

State of U.P. and Others [(1996) 10 SCC 62].

32. For the reasons aforementioned, there is no merit in this appeal.   The

appeal is dismissed.  However, in the facts and circumstances of the case,

there shall be no order as to costs.

    ……………….……….J. [ S.B. SINHA ]

  …..……………..……...J.     [ HARJIT SINGH BEDI ]

New Delhi;

March 7, 2008

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