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CASE NO.: Appeal (civil)  3043 of 2008

PETITIONER: Govt. of A.P. & Ors.

RESPONDENT: K. Brahmanandam & Ors.

DATE OF JUDGMENT: 29/04/2008

BENCH: S.B. Sinha & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T  REPORTABLE

CIVIL APPEAL NO.  3043     OF 2008 [Arising out of  SLP (Civil) No. 20561 of 2006]

S.B. SINHA, J :          1.      Leave granted.

2.      Whether the State or the Educational Institution is liable to bear the  financial burden for payment of wages to the concerned respondents herein  is the question involved in this appeal which arises out of a judgment and  order dated 25.08.2005 passed by the High Court of Andhra Pradesh in Writ  Appeal No. 1321 of 2001. 3.      Respondents, seven in number, were appointed as Secondary Grade  Teachers in Church of South India, UP Elementary School.  Allegedly, the  provisions of the rules had not been followed in recruiting the teachers.   Indisputably, such rules of recruitment had been laid down by G.O.Ms. No.  1 dated 1.01.1994.  The said rules were framed by the State in exercise of its  power conferred upon it under Section 99 read with Sections 20, 21, 79, 80  and 83 of the Andhra Pradesh Education Act, 1982 known as the Andhra  Pradesh Educational Institutions (Establishment, Recognition,  Administration and Control Of Schools Under Private Managements) Rules,  1993 (for short "the Rules"). 4.      The Rules categorized several schools; Upper Primary Schools being  one of them.  The Rules defines the "Educational Agency" in Rule 2(1)(b) to  mean "the Society/ Trust/ Association including Endowment, Board/ Wakf  Board and Christian Mission (Church/ Diocese or Congregation) and the  like, sponsoring/ managing/ running the schools".  "Minority Educational  Institution" has been defined in Rule 2(f) of the Rules to mean "any  educational agency of which at least 2/3rd members belong to a religious /  linguistic minority". 5.      Rule 7 of the Rules provides for scrutiny and grant of permission on  an application filed therefor by the institution in question.  Rule 9 provides  for the manner in which recognition can be granted.  Rule 10 provides for  the conditions for grant of permission and recognition.  Rule 12 provides for  the appointment of staff.  Sub-Rule (3) of Rule 12 mandates that  advertisement for recruitment shall be made at least in two newspapers  having large circulation.  The Employment Exchange is also required to be  notified in regard to the vacancies.  A Staff Selection Committee constituted  for undertaking the recruitment process is to consist of a nominee of the  District Educational Officer not below the rank of Deputy Educational  Officer.  Sub-Rule (8) of Rule 12 provides that all appointments should be  subject to the approval of the competent authority.   6.      It is stated that the management of the institution, before the  recruitment of the respondents, neither obtained any prior permission from  the District Educational Officer nor made advertisement in two newspapers

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nor notified the vacancies to the Employment Exchange.  Even no order of  approval as regards the said appointments was obtained from the District  Education Officer.           The State contends that the selection process had been undergone  hurriedly, which created a lot of suspicion.           Respondents, however, contend that they were appointed as  Secondary Grade Teachers at different places through due selection process  and they had been performing their duties to the utmost satisfaction of the  authorities of the concerned schools.  Indisputably, their salaries had not  been paid.  They made representations therefor.  Their representations were  rejected by the District Education Officer by an order dated 10.12.1999. 7.      Respondents thereafter filed writ petitions before the High Court.  The  State filed a counter affidavit wherein it was inter alia contended that the  writ petitioners \026 respondents had been appointed through side door(s) by  the then Correspondent Rev. Prasad Rao in collusion with the teachers  concerned as also the then Education Officer.           A learned Single Judge of the High Court relying on the principles  laid down by this Court in Ashok Kumar Yadav v. State of Haryana [AIR  1987 SC 454] as also on the premise that the said respondents have been  working for several years and as furthermore they possessed minimum  qualification held that only because the procedural aspects had not been  followed as per the said GOMs No. 1 dated 1.01.1994 and other directions  from time to time, the same would not be a bar for grant of relief in their  favour, stating: "In my considered view, the same principle will  also apply to the facts of this case.  Admittedly, the  petitioners are continuing in service for more than  8 years and it would be inequitable to disturb them  at this distance of time."

8.      On an intra court appeal having been filed, a Division Bench of the  said Court dismissed the appeal, stating : "The main grievance of the respondents is that  though they were appointed as Secondary Grade  Teachers, through due selection process, neither  their appointments were approved nor they were  paid any salary till date.  In earlier round of  litigation, in W.P. No. 9616 of 1995, this court  directed the authorities concerned to consider the  proposals sent by the Management on 1.4.1996  and take appropriate decision.  In pursuance  thereof, the fourth appellant passed orders on  10.12.1999 rejecting the cases for approval.  The  case of the respondents is that they have put up  sufficient length of service.  The learned Single  Judge placed reliance on the Judgment cited supra  and held that it would be unjust to disturb the  respondents after eight years of service and  accordingly set aside the impugned order passed  by the fourth appellant.  In the above background  of the case, we are of the opinion that the learned  Single Judge has arrived at a just conclusion and  the same, in our considered opinion, deserves no  interference."

9.      Mr. R. Sundraravardhan, learned senior counsel appearing on behalf  of the appellants, would submit that the State has no liability to pay the  salary of the concerned teachers keeping in view the fact that their services  had not been approved.  The learned counsel would further contend that it is  not even a case where paragraph 53 of the Constitution Bench decision of  this Court in Secretary, State of Karnataka and Others v.  Umadevi (3) and  Others  [(2006) 4 SCC 1] would apply. 10.     Mr. G. Ramakrishna Prasad, learned counsel appearing on behalf of  the respondents, on the other hand, would contend that in view of passage of

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time and particularly in view of the fact that the respondents had been  continuing to work for a long time, this Court should not interfere with the  impugned judgment. 11.     The liability of the State to pay salary to a teacher appointed in the  recognized schools would arise provided the provisions of the statutory rules  are complied with, subject to just exception.  The right to claim salary must  arise under a contract or under a statute.  If such a right arises under a  contract between the appointee and the institution, only the latter would be  liable therefor.  Its right in certain situation to claim reimbursement of such  salary from the State would only arise in terms of the law as was prevailing  at the relevant time.  If the State in terms of the statute is not liable to pay the  salary to the teachers, no legal right accrues in favour of those who had been  appointed in violation of mandatory provisions of the statute or statutory  rules.   12.     The equality clause contained in Articles 14 and 16 of the  Constitution of India, it is trite, must be scrupulously followed.  The court  ordinarily would not issue a writ of or in the nature of mandamus for  regularization of the service of the employee which would be violative of the  constitutional scheme.   13.     Appointments made in violation of the mandatory provisions of a  statute would be illegal and, thus, void.  Illegality cannot be ratified.   Illegality cannot be regularized, only an irregularity can be.           The said legal principle has been enunciated by a Constitution Bench  of this Court in Umadevi (3) (supra), para 53 whereof reads as under: "53. One aspect needs to be clarified. There may  be cases where irregular appointments (not illegal  appointments) as explained in S.V. Narayanappa,  R.N. Nanjundappa  and B.N. Nagarajan and  referred to in para 15 above, of duly qualified  persons in duly sanctioned vacant posts might have  been made and the employees have continued to  work for ten years or more but without the  intervention of orders of the courts or of tribunals.  The question of regularisation of the services of  such employees may have to be considered on  merits in the light of the principles settled by this  Court in the cases abovereferred to and in the light  of this judgment. In that context, the Union of  India, the State Governments and their  instrumentalities should take steps to regularise as  a one-time measure, the services of such  irregularly appointed, who have worked for ten  years or more in duly sanctioned posts but not  under cover of orders of the courts or of tribunals  and should further ensure that regular recruitments  are undertaken to fill those vacant sanctioned posts  that require to be filled up, in cases where  temporary employees or daily wagers are being  now employed. The process must be set in motion  within six months from this date. We also clarify  that regularisation, if any already made, but not  sub judice, need not be reopened based on this  judgment, but there should be no further bypassing  of the constitutional requirement and regularising  or making permanent, those not duly appointed as  per the constitutional scheme."  [Emphasis supplied]              

14.     We are not unmindful of the fact that the said paragraph has been  interpreted differently by different Benches.  Some benches have remitted  the matter back to the tribunal/authorities for consideration of the matter  afresh in the light of the said observations, e.g., in Mineral Exploration  Corporation Employees’ Union v. Mineral Exploration Corporation. Ltd. and  Anr. [(2006) 6 SCC 310], it was directed : "We, therefore, direct the Tribunal to decide the

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claim of the workmen of the Union strictly in  accordance with and in compliance with all the  directions given in the judgment by the  Constitution Bench in Secy., State of Karnataka v.  Umadevi (3) and in particular, paras 53 and 12  relied on by the learned Senior Counsel appearing  for the Union. The Tribunal is directed to dispose  of the matter afresh within 9 months from the date  of receipt of this judgment without being  influenced by any of the observations made by us  in this judgment. Both the parties are at liberty to  submit and furnish the details in regard to the  names of the workmen, nature of the work, pay  scales and the wages drawn by them from time to  time and the transfers of the workmen made from  time to time, from place to place and other  necessary and requisite details. The above details  shall be submitted within two months from the  date of the receipt of this judgment before the  Tribunal."

15.     On the other hand, in some of the cases, the said paragraph, for  example, in the decision of this Court in Municipal Corporation, Jabalpur v.  Om Prakash Dubey [(2007) 1 SCC 373] had been applied to the following  effect: "The question which, thus, arises for  consideration, would be : Is there any distinction  between ’irregular appointment’ and ’illegal  appointment’? The distinction between the two  terms is apparent. In the event the appointment is  made in total disregard of the constitutional  scheme as also the recruitment rules framed by the  employer, which is State within the meaning of  Article 12 of the Constitution of India, the  recruitment would be an illegal one; whereas there  may be cases where, although, substantial  compliance of the constitutional scheme as also the  rules have been made, the appointment may be  irregular in the sense that some provisions of the  rules might not have been strictly adhered to."

[See also Punjab Water Supply & Sewerage Board v. Ranjodh Singh and  Others etc. (2007) 2 SCC 491, Punjab State Warehousing Corp., Chandigarh  v. Manmohan Singh and Anr., 2007 (3) SCALE 401 and Post Master  General, Kolkata & Others v. Tutu Das (Dutta) 2007 (6) SCALE 453]

16.     In the light of the decision of this Court in Umadevi (3) (supra), para  53 thereof would be applicable subject to the condition that the matter had  not been pending before any court or tribunal.  Indisputably, the litigation  between the parties was pending since January, 2000.  The institution’s  application for approval of the said appointments had been rejected.   Therefore, para 53 of Umadevi (3) (supra) has no application. 17.     Even in relation to application of the concept of equal pay for equal  work, the Constitution Bench held: "44. The concept of "equal pay for equal work"  is different from the concept of conferring  permanency on those who have been appointed on  ad hoc basis, temporary basis, or based on no  process of selection as envisaged by the rules. This  Court has in various decisions applied the principle  of equal pay for equal work and has laid down the  parameters for the application of that principle.  The decisions are rested on the concept of equality  enshrined in our Constitution in the light of the

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directive principles in that behalf. But the  acceptance of that principle cannot lead to a  position where the court could direct that  appointments made without following the due  procedure established by law, be deemed  permanent or issue directions to treat them as  permanent. Doing so, would be negation of the  principle of equality of opportunity. The power to  make an order as is necessary for doing complete  justice in any cause or matter pending before this  Court, would not normally be used for giving the  go-by to the procedure established by law in the  matter of public employment. Take the situation  arising in the cases before us from the State of  Karnataka. Therein, after Dharwad decision the  Government had issued repeated directions and  mandatory orders that no temporary or ad hoc  employment or engagement be given. Some of the  authorities and departments had ignored those  directions or defied those directions and had  continued to give employment, specifically  interdicted by the orders issued by the executive.  Some of the appointing officers have even been  punished for their defiance. It would not be just or  proper to pass an order in exercise of jurisdiction  under Article 226 or 32 of the Constitution or in  exercise of power under Article 142 of the  Constitution permitting those persons engaged, to  be absorbed or to be made permanent, based on  their appointments or engagements. Complete  justice would be justice according to law and  though it would be open to this Court to mould the  relief, this Court would not grant a relief which  would amount to perpetuating an illegality."

18.     In view of the decision in Umadevi (3) (supra), we are of the opinion  that the question of regularizing the services of the respondents does not  arise.  Respondents \026 writ petitioners (teachers), however, are entitled to  salary from the school authorities as they have worked even if no valid  contract had come into being.  The salary amount would be payable in terms  of Section 70 of the Indian Contract Act.  The principles of quasi-contract,  however, must apply keeping in view the relationship between the parties.   The doctrine of quasi-contract cannot be applied in a situation of this nature  as against the State.   

19.     For the reasons aforementioned, the appeal is allowed to the  aforementioned extent.  It would, however, be open to the school authorities  to take such action, as it may deem fit and proper, in the light of the decision  of this Court in Umadevi (3) (supra).  No costs.