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CASE NO.: Appeal (civil)  8425 of 2002

PETITIONER: Sultan Sadik                                              

RESPONDENT: Sanjay Raj Subba and Ors.                                

DATE OF JUDGMENT: 05/01/2004

BENCH: CJI & S.B. Sinha.

JUDGMENT: J U D G M E N T

S.B. SINHA :

       The appellant herein was elected from 110 Naoboicha  Legislative Assembly Constituency in the State of Assam.  An  election petition was filed by the first respondent herein  questioning the election of the appellant in terms of  Sections 100 (1) of the Representation of the People Act,  1951 (hereinafter referred to and called as ’the said Act’,  for the sake of brevity), on the ground that he stood  disqualified being the holder of a post of profit under the  State of Assam.

BACKGROUND FACTS :          The appellant was said to have been appointed as an  Assistant Teacher in ’Pabha Chariali M.E. Madarassa School’  (hereinafter referred to as ’the said School’).  He was  working therein as an Assistant Teacher without any  remuneration.  Primary education is imparted in the said  School.  It appears that the primary education in the State  of Assam used to be governed by three Acts, known as ’Assam  Basic Education Act, 1954’, Assam, Elementary Education Act,  1962’ and ’Assam Elementary Education Act, 1968’.

       In terms of the 1968 Act, the Regional Boards of  Elementary Education were constituted which took over the  management of elementary schools and pre-primary schools.   There also existed a State Board of Elementary Education  constituted under Section 4 of Assam Elementary Education  Act, 1968.

       The State thereafter enacted the Assam Elementary  Education (Provincialisation) Act, 1974 (Assam Act No. VI of  1975) to provide for provincialisation of the elementary  education in the State of Assam, in terms whereof the  services of employees of the different categories of the  State Board and Regional Boards for Elementary Education  were to be provincialised for the purpose of bringing them  under the direct management and control of the State  Government.  Pursuant to or in furtherance of the said Act,  all assets and liabilities of the State Board and all  Regional Boards vested in the State Government.  In terms of  Section 3 of the 1974 Act, the services of all teachers of  elementary schools and pre-primary schools maintained by the  Regional Boards of Elementary Education, all employees of  the State Board of Elementary Education, all teachers

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appointed by the Regional Boards of Elementary Education and  all ministerial staff appointed by the State Board of  Elementary Education were provincialised under the said Act.  The consequence of vesting of the institutions maintained by  the authorities under the aforementioned three Acts is  provided in Section 4A thereof which reads thus :

"Services of all teachers and employees  who rendered services under the  following repealed Acts and whose  services are taken over by the  Government on provincialisation on 5th  September, 1975 under the principal Act  shall be deemed to be services under the  Government and shall qualify and count  for pension and other retirement  benefits."           

       Section 27 (1) of the 1974 Act provides for rule making  power.  Pursuant to or in furtherance thereof, the State of  Assam made rules for regulating the terms and conditions of  services of teachers of elementary schools and employees  employed therein known as ’the Assam Elementary Education  (Provincialisation) Service and Conduct Rules, 1981  (hereinafter referred to as ’the 1981 Rules’).

       "Service" has been defined in Rule 2(xii) of the 1981  Rules to mean :

"’Service’ means service rendered under  the State Board for Elementary Education  constituted under the Assam Elementary  Education Act, 1968 and service rendered  under the Government before or after  provincialisation both in respect of  teachers and other employees."

       Rule 3(i) of the said Rules reads thus :

"Terms and Conditions : The services of  all teachers of Elementary Education  taken over by the Government on  provincialisation on 5th September,  1975, as provided under Section 3 of the  Assam Elementary Education  (Provincialisation) Act, 1974, as  amended, shall be subject to the  following conditions :

(a)     Services rendered during the repealed  Acts :-

The Assam Basic Education Act, 1954 (Act  XXVI of 1954), the Assam Elementary  Education Act, 1962 (Act XXX of 1962),  and the Assam Elementary Education Act,  1968 (Act XVIII) of 1969) shall be  counted towards pension and other  retirement benefits provided such  services are substantive and permanent.

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Explanation : Services rendered  temporarily against leave or deputation  vacancies  shall be excluded.

(b)     They shall be entitled to such scales of  pay and allowances and other benefits as  may be admissible to the teachers of  corresponding rank of the Government  School services with effect from the  date of provincialisation.

(c)     They shall be superannuated on   attaining 58 years of age."

The said school was not being maintained by any  authority constituted under any of the aforementioned  statutes.  A notification, however, was issued on or about  19.11.1991 whereby and whereunder the said school was  provincialised. Indisputably, the names of the appellant  herein and a large number of teachers were dropped from the  list of approved teachers and their services had not been  provincialised under the provisions of the 1974 Act.

All Assam Middle English School Association of which  the appellant is said to be a member filed a writ petition  before the Assam High Court for regularization of services  of the dropped teachers, which was marked as Writ Petition  No.2833 of 1997. The said writ petition was dismissed where- against an appeal before the Division Bench was filed being  Writ Appeal No.474 of 1997. The Division Bench while  reversing the judgment of the learned Single Judge by reason  of a judgment and order dated 13.11.1998, inter alia,  directed :

"For the purpose of enabling the  Government to complete process of  regularization/provincialisation, the  appellants association will furnish all  necessary documents and particulars  including names of concerned assistant  teachers to the Director of Elementary  Education, Assam, within two weeks from  today.  It will be open for the State  Government to consider  regularization/provincialisation of  Assistant Teachers dropped at the time  of provincialisation of ME and ME   Madrassas during the year 1991-92 in  addition to 1123 Assistant Teachers in  case they find genuineness in the claims  of such additional Assistant Teachers.   

       The impugned order dated 25.6.97 of  the learned Single Judge passed in CR  No.2833/97 is set aside and the writ  appeal is disposed of in terms of the  aforesaid directions.  But considering,  however, the facts and circumstances of  the case, the parties shall bear their  own costs."          

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Pursuant to or in furtherance of the said directions,  the services of 190 working teachers were sought to be  regularized w.e.f. 24.4.1998 by an order dated 8.1.1999  stating :

"...The services of the teachers may be  regularized out of the posts already  allotted to you vide this office letter  No.EPD/OB/6/98/156 dated 24.4.98.   Before issuing the regularization order  to the working teacher concern the Dist.  Ele. Edn. Oficer should authenticate the  same.  The name of the teachers and the  name of the schools as furnished the  list received from Govt.  The  regularization of service of working  teachers should be made on seniority  basis as per physical verification  report of Dist. Ele. Edn. Officer  concerned and were working before the  date of provincialisation of school and  duly approval of the posts against  section.  No teachers should be  regularized in case of readjustment of  schools as per need of enrolment without  prior approval of this Directorate..."

       It appears that the District Elementary Education  Officer by a letter dated 16.12.1999 addressed to the  Secretary to the Government of Assam allegedly informed the  latter about regularization of 97 numbers of dropped  teachers and brought to his notice that it may be necessary  to take steps for regularization of other teachers by  creating posts therefor.  As, allegedly, the order of the  High Court was not complied with, a contempt petition was  filed wherein in his affidavit the District Elementary  Education Officer alleged that in compliance with the order  of the court dated 13.11.1998, the services of 105 dropped  teachers were regularized w.e.f. 24.4.1998 by an order dated  30.10.2000, and therein the name of the appellant found  place at Sl. No.28.  It, however, appears that the appellant  herein stopped attending the said school whereafter the Head  Master of the said School by letters dated 2.5.2000,  12.6.2000 and 21.8.2000 asked the appellant to come to the  school with sufficient cause for his absence failing which  action would be taken against him.  The appellant neither  joined the School nor replied to the said notices. The  Managing Committee of the said School  adopted a resolution  to the following effect :

       "Since Md. Sultan Sadique,  Assistant Teacher has unauthorisedly  been absent from his duty without any  notice/intimation and it has been  informed him on 2.5.2000, 12.6.2000 and  21.8.2000 by serving written notices.   But no reply has been received from him  in this regard.

       The matter has thoroughly been  discussed in today’s and unanimously  decides that in the interest of the

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school, Md. Sultan Sadik, Assistant  Teacher of the Pabha Charali M.E.  Madrassa has been released from his post  with immediate effect.

       It has also been decided to inform  the authority concerned to take  necessary action."

       A copy of the said resolution was forwarded to the  appellant herein and a copy thereof was sent to the District  Elementary Education Officer and the Block Elementary  Education Officer by the Head Master of the said School by  letter dated 30.8.2000, which is to the following effect :

"Office of the Head Master and  Secretary Pabha Charali ME Madrassa,  P.O. Kutubpur : Dist. Lakhimpur

                       Date : 30.8.2000

To

Md. Sultan Sadik Assistant Teacher Pabha Charali M.E. Madrassa

Subject : Release from service

Sir,

       With reference to the subject cited  above and due respect it has been  informed you that the Managing Committee  of Pabha Charali M.E. Madrassa vide its  resolution No.1 passed in its meeting  held on 25.8.2000 decided to release you  from the post of Assistant Teacher from  Pabha Charali M.E. Madrassa.

       This decision will be implemented  with immediate effect.

                       Sincerely yours,                          Sd/- illegible                         Seal : Headmaster                         Pabha Charali M.E.                         Madrass, PO Kutubpur                         Dist. Lakhimpur"  

       It is not in dispute that that the appellant herein   despite receipt of the said purported order dated 30.8.2000  did not question the legality or validity thereof. He  accepted the said order.          A notification for holding an election was issued on  16.4.2001. The appellant and the first respondent herein  amongst others pursuant thereto filed their nomination  papers.  The first respondent herein filed objections to the  nomination of the appellant on the ground that he was a  Government employee and hence ineligible for contesting the  election.  The appellant herein took the stand that as  despite order of regularization passed in his favour, he did  not join duties nor received any salary, he was not a

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Government employee.  The said plea was accepted.  In the  election, as noticed hereinbefore, the appellant was elected  whereafter the election petition was filed by the first  respondent.

ISSUES :

       The High Court having regard to the pleadings of the  parties, inter alia, framed the following issues:

"(5)    Whether the Respondent No.1 on the  date of his nomination held any  office of profit ?

(6)     Whether on the date of scrutiny of  nomination papers and also on the  date of election the Respondent  No.1 was disqualified for being  chosen to the Legislative Assembly  of the 191(1)(A) of the Indian  Constitution and Section 100(1)(a)  and Section 100(1((d)(iv) of the  Act ?"

HIGH COURT JUDGMENT :

The High Court in its impugned judgment held that : (i)  an Assistant Teacher in the school whose services had been  provincialised by the Government of Assam would be holder of  an office of profit under the State of Assam, in view of the  order of the High Court in Writ Appeal No.474 of 1997  whereby and whereunder the State was directed to consider  cases of 1123 dropped teachers for  regularization/provincialisation; (ii) As pursuant to or in  furtherance thereof the services of several teachers  including that of the appellant were regularized in terms of  order dated 8.1.1999 (Ext.9) as also the order dated  30.10.2000 (Ext.14) wherein the name of the appellant found  place at Sl. No.28, he would be deemed to have become an  Assistant Teacher with retrospective effect from 24.4.1998.   Keeping in view the fact that the appellant was in  Government service on 25.8.2000, the Managing Committee of  the said school had no authority to terminate his services  without approval of the appropriate authority of the  Government thereabout; (iii) Although proceedings of the  Managing Committee bore the endorsement of the Block  Elementary Education Officer, it had no authority to  terminate the services of the appellant. Even if the  appellant was a dropped teacher, the question of the  Managing Committee releasing or relieving him would not  arise and, thus, the said order dated 25.8.2000 is of no  legal effect; (iv) There is no explanation as to why even  after 30.8.2000 the Head Master requested the District  Elementary Education Officer to take action against the  appellant for his absence from duty, which also shows that  the Head Master considered him to be a regularized teacher  on that day; (v) The letter dated 30.10.2000 must be  presumed to have been served upon the appellant in terms of  Section 114 of the Evidence Act; (vi) As the effect of  regularization of provincialisation/regularization has been  provided for under the Act, the non-joining or non-drawing  of any salary by the appellant was irrelevant.

On the aforementioned findings, the election petition

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was allowed by the High Court.

SUBMISSIONS :          Mr. V.A. Mohta, learned Senior Counsel appearing on  behalf of the appellant would submit that having regard to  the fact that the appellant had been served with notices on  2.5.2000, 12.6.2000 and 21.8.2000 by the School and  furthermore in view of the order dated 30.8.2000 as also the  resolution of the Managing Committee dated 25.8.2000, the  purported order of regularization dated 30.10.2000 cannot be  said to have been acted upon.  The learned counsel would  urge that the High Court committed a manifest error insofar  as it failed to consider the purport of the letter dated  30.8.2000 (Ext.G), genuineness whereof is not in dispute.   Mr. Mohta would submit that as the appellant has accepted  the said order of termination, the first respondent had no  locus standi to question the same.  Our attention in this  behalf has also been drawn to the show cause filed by the  District Elementary Education Officer, Lakhimpur in the  contempt proceedings.  The learned counsel would contend  that as the order of regularization was passed only on  30.10.2000, the same was non est in the eye of law.  It was  further submitted that even from the said order dated  30.10.2000, it would appear that one Naseema Begum claimed  seniority over the appellant on the ground that he  superseded her and, thus, even the order of regularization  did not attain finality.  The learned counsel would submit  that in terms of Rule 8 of 1981 Rules, a register is  required to be opened at the beginning of service by the DI  of School and as no service records had been opened the  appellant cannot be said to be holder of an office of profit  under the State.  Relying on or on the basis of a decision  in R.P. Moidutty vs. P.T. Kunju Mohammad and Another [(2000)  1 SCC 481], the learned counsel would argue that the first  respondent herein has failed to discharge his heavy onus.   Mr. Mohta would also contend that the High Court committed  an error in setting aside the election on mere surmises and  conjectures.   

       Mr. U.N. Bachawat, learned Senior Counsel appearing on  behalf of the respondents, on the other hand, would submit  that the expression ’regularization’ connotes that the  services of a person who has irregularly been appointed  would be made regular and, thus,  such an order can be given  to have a retrospective effect.  Strong reliance, in this  regard has been placed on State of  Mysore and Another vs.  S.V. Narayanappa [AIR 1967 SC 1071] and B.N. Nagarajan and  Others etc. vs. State of Karnataka and Others  etc. [AIR  1979 SC 1676].

       The learned counsel would contend that as the  institution stood provincialised in terms of notification  dated 19.11.1991 issued by the  State of Assam, as would  appear from the deposition of the Head Master of the School,  the consequences provided for in Section 4A of the Act and  Rule 3 of the 1981 Rules shall ensue in terms whereof the  appellant would be deemed to be a Government servant with  retrospective effect from 24.4.1998. Mr. Bachawat would urge  that keeping in view of the provisions of Section 87 of the  Representation of the People Act and having regard to the  pleadings of the parties as contained in Para 16 of the  election petition and para 18 of the written statement  wherefrom it would appear that the factum of provincialism  had not been denied or disputed and, thus, the same would be

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deemed to have been admitted and, in that view of the matter  it was not necessary for the High Court to consider the  effect of  mode of provincialisation  of teachers. The  learned counsel would contend that the role of the Managing  Committee of a provincialised school being a limited one,  the purported resolution dated 25.8.2000 and letter dated  30.10.2000 being wholly illegal and without jurisdiction ,  the same would be non est in the eye of law.  Strong  reliance in this behalf has been placed on Mysore State Road  Transport Corporation vs. Mirja Khasim Ali Beg and Another  [AIR 1977 SC 747].  The learned counsel would submit that in  view of the aforementioned legal position, it was not even  necessary for the authorities of the State of Assam to  communicate the order of regularization dated 30.10.2000  insofar as the same would be deemed to be communicated as  soon as it went out of the control of the  District  Elementary Education Officer.  Reliance has been placed on  State of Punjab vs. Khemi Ram [AIR 1970  SC 214].  Non- receipt of salary by the appellant is also not relevant in  view of the fact that the State has made budgetary provision  therefor according to Mr. Bachawat and in support of his  aforementioned contention he relied upon M.V. Rajashekaran &  Ors. vs. Vatal Nagaraj & Ors. [JT 2002 (1) SC 237].   

ANALYSIS :

       The parties have not brought on records the offer of  appointment, if any, issued in favour of the appellant  herein by the Managing Committee of the said School at the  time of his joining.  Admittedly, he had been rendering his  services in the School without any remuneration.  The terms  and conditions of his job are not known.  It is admitted  from the records that he fought election in the year 1998  and during the relevant period he discontinued going to the  School  but thereafter again he started going to the School.   It is also not disputed he had not been going to the School  for a long time, as a result whereof the said letters  2.5.2000,  12.6.2000 and 21.8.2000 came to be issued .  The  authenticity of the letter of the Head Master dated  30.8.2000 is not in dispute.   

The question in the aforementioned situation would be  as regard the effect thereof vis-‘-vis his purported  regularization in terms of letter dated 30.10.2000 w.e.f.  24.4.1998.

LEGAL IMPLICATIONS :          The statutory provisions, as referred to hereinbefore,  ex facie demonstrate that the 1974 Act was enacted for the  purpose of  the provincialisation of services of employees  of different categories of the State Board and Regional  Boards for Elementary Education and bringing them under  direct management and control of the State Government.  

The pleadings of the parties before the High Court do  not reveal that the School in question was maintained by the  Regional Board. Had it been so, the question of the  appellant being a dropped teacher would not have arisen.   Furthermore, no occasion would have also arisen for the  State of Assam to issue a separate notification dated  19.11.1991 for provincialisation of the said school.  We  have also not been shown any provision of law in terms

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whereof such a notification could be issued.  Be  that as it  may, the fact remains that the appellant herein was not  recognised as a teacher working in the said School.  He  continued to render voluntary services without receiving any  remuneration.  It may be that such rendition of service by  the appellant or the teachers similarly situated was on the  hope or belief that their services would also be  provincialised by the State one day or the other. But only  by reason thereof, it is difficult to conceive that a  relationship of a master and servant came into being by and  between the management of the School and the appellant.   Even if such a relationship existed, the same was a fragile  one.  The services of the appellant in terms of the 1974 Act  or the rules framed thereunder were not protected..  He did  not enjoy any status; his services could be dispensed with  by the Managing Committee of the said School at any time.  Even after provincialisation of the School, keeping in view  the admitted fact that the appellant was not an approved  teacher,  it must be held that he was merely rendering some  services and, thus, either in law or on fact, no jural  relationship between the State and the appellant came into  being.

The High Court, however,  proceeded on the basis that  such a relationship existed.  It opined that the order of  the Division Bench dated  13.11.1998 was mandatory in  character.  The fact that the said order attained finality  is not in dispute but a bare perusal of the directions  issued therein would reveal that the Association was asked  to furnish necessary documents and particulars including  names of the concerned teachers so as to enable the State to  consider and complete the process of  regularization/provincialisation of ME Madrassas during the  year 1991-92 in addition to 1123 Assistant Teachers in case  they find genuineness of claims of such Assistant Teachers.

The order dated 8.1.1999 of the Director of Elementary  Education  stated that the services of the teachers should  be regularized out of the posts already allotted to the  concerned District Elementary Education Officer.  He was  asked to authenticate  list of working teachers before  regularization of services of such teachers.  Despite that  the name of the appellant appeared at Sl. No.56 thereof,  such a direction was not final.  The letter of the District  Elementary Education Officer dated 16.12.1999, although  discloses that he had finalized the list of 97 names, no  order pursuant thereto had been issued.  Even the order  dated 30.10.2000 says that such purported  provincialisation/regularization was provisional in nature.   Such regularization was further subject to the outcome of  order dated  25.9.2000 in Writ Appeal No.474 under C.R.  No.2833 of 1997 in Contempt Case (C) No. 420 of 2000 of the  High Court of Gauhati.  From the list of dropped teachers  purported to have been regularized from 24.4.1998, it  appears that there existed a factual dispute  as to whether  the appellant superseded one Mst. Naseema Begum who had  joined the said School on 1.4.1984 or not.  The appellant  contended that he even did not receive the said purported  order of regularization. The  High Court having regard to  the provisions contained in Section 114 of the Evidence Act,  was of the opinion that a presumption that he had received  the said order could be drawn but it failed to take into  consideration that such presumption stood rebutted when the  appellant stated on oath that he did not receive such

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letter.  In such an event, the onus was on the election  petitioner to show that the same had been delivered or  tendered to him by the postal peon of the concerned post  office.  It is not a case where the High Court directed  regularization of  services of the appellant.  It is  furthermore not a case where the posts were existing on the  date on which the appellant joined the said School.  The  additional posts, admittedly, had been created by the State  in the year 1998.  Prior to 30.10.2000, thus, there existed  no relationship of master and servant.  The offer came to be  made by the State to the appellant only on the issuance of  the said order. The said offer was not only required to be  communicated but also was required to be accepted by the  appellant.   

It is true that the school in question stood  provincialised in terms of the notification issued by the  State of Assam but the same by itself would not lead to the  conclusion that the services of the Assistant Teachers  working therein stood automatically provincialised.   Had   such consequences of provincialisation of the school been  flown from the notification, it would not have been  necessary for the teachers to approach the High Court.  The  very fact that even in terms of the order of the High Court,  the genuineness of claims of the concerned Assistant  Teachers was required to be verified is itself a pointer to  the fact that no order of regularization could be passed  pursuant to or in furtherance of the judgment of the High  Court only.

It is not a case, it will bear repetition to state,  where the State or its authorised officer made an  appointment of an employee either on ad hoc basis or on  daily wages or on contract basis or otherwise.  Only in   cases of such irregularities in the matter of appointment,  the employees can be regularized in their services.   

In S.V. Narayanappa (supra) whereupon Mr. Bachawat  strongly relied, this Court stated that for the purpose of  application of a Government order, it must be shown  that  the local candidate claiming the benefit thereof must  satisfy that he was initially appointed  prior to  31.12.  1959 and  was in service on 1.1.1960 and continued till  22.9.1961.  It was held :

"...This construction finds support from  sub-cl. (iii) which provides that local  service prior to regularization would be  counted for the purposes of leave,  pension and increments though not for  seniority as seniority was to be fixed  from the length of service calculated  from the date of regularization.  It is  manifest that unless the local service  was continuous such service could not be  taken into account for the purposes, in  particular of pension and increments.   How would increments, for example, be  granted unless the service prior to such  increments was continuous?  The same  consideration would also apply in the  case of pension.  It had, therefore, to  be provided as has been done in sub-cl.  (iv) that a break in service would not

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be condoned for a period howsoever  short.  Continuity of service is thus a  condition for both sub-cls. 2 and 3..."         

        Yet again in B.N. Nagarajan (supra), this Court  repelled the argument that regularization gives a colour of  permanence and the appellants therein must be deemed to have  acquired  substantive rights stating :

"...The argument however is unacceptable  to us for two reasons.  Firstly the  words "regular" or "regularization" do  not connote permanence.  They are terms  calculated to condone any procedural  irregularities and are meant to cure  only such defects as are attributable to  the methodology followed in making the  appointments.  They cannot be construed  so as to convey an idea of the nature of  tenure of the appointments...."     

It is interesting to note that therein this Court  quoted with approval a decision of this Court in  R.N.  Nanjundappa vs. T. Thimmaiah [(1972) 2 SCR 799], which is to  the following effect :

"...If the appointment itself is in  infraction of the rules or if it is in  violation of the provisions of the  Constitution illegality cannot be  regularized.  Ratification or  regularization is possible of an act  which is within the power of province of  the authority but there has been some  non-compliance with procedure or manner  which does not go to the root of the  appointment.  Regularization cannot be  said to be a mode of recruitment.  To  accede to such a proposition would be to  introduce a new head of appointment in  defiance of rules or it may have the  effect of setting at naught the rules."

       These decisions of this Court do not support  the  contention of Mr. Bachawat  and in fact run counter thereto.   It is not the case of the parties that there existed even   semblance of any legal  right of the appellant and there  existed a relationship of  employer and  employee between  the State and him.  In law the appellant did not enjoy any  status.  His services had not been recognized by the State.   The terms and conditions of his services were not governed  by any statute and, thus, the same were not protected.  The  relationship of employer and employee, if any, between the  State and the appellant was to come into being (may be with  retrospective effect) only upon receipt of the offer of an  appointment dated 30.10.2000 and acceptance thereof by him.   A contract of service in absence of any statutory provisions  must be preceded by an offer and acceptance.  A  contract of  service in absence of any statute, a fortiori is also  governed by the provisions of the Indian Contract Act.  It

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is, therefore, not correct to contend that the order dated  30.10.2000 was not required to be communicated for making a  valid contract of service.  It was absolutely necessary to  communicate the said order to the appellant by the State,  acceptance thereof whether expressly or by necessary  implications by the appellant was also required. The  appellant did not do it  nor it is the case of the State or  the statutory authorities that such a relationship had come  into being.

The decision of this Court in Khemi Ram (supra) relied  upon by Mr. Bachawat is not apposite as therein an order of  suspension was in question.  This Court in the said decision  itself referred to its decision in State of  Punjab vs. Amar  Singh Harika [(AIR 1966 SC 1313], which stated that  communication of an order dismissing an employee from  service is imperative. If communication of an order for  terminating the jural relationship is imperative, a fortiori  it would also be imperative at the threshold.         

       The High Court proceeded to render its opinion on a  wrong premise.  It was not a case  where the High Court  having regard to the provisions contained in Article 191 of  the Constitution of India vis-‘-vis- Section 100 of the  Representation of the People Act was required to determine a  question as to whether the appellant being holder of an  office of profit of the Government of the Assam was  wrongfully dismissed from his services.  Only  holding of an  office of profit under the Government of India or the  Government of any State would render a candidate  disqualified from contesting an election.  Only in that  event,  the High Court could have been entitled to declare  such election as a void one, but the question involved  herein is not so.

What was necessary to be considered by the High Court  was as to whether any relationship of employer and employee  between the State of Assam and the appellant herein came  into being.  The submission of Mr. Bachawat, therefore, to  the effect that the High Court had the requisite  jurisdiction by invoking the doctrine of "implied powers"  to go into the question of termination/dismissal/removal of  the appellant does not arise for consideration in the  instant case.

EFFECT OF RESOLUTION DATED 25.8.2000 :                                                                                                                                                                                                

       Furthermore, even the de facto relationship of employer  and employee (as contra-distinguished from de jure  relationship) existed, the same came to an end in view of  the aforementioned resolution of the Managing Committee of  the said School and the communication thereof by the Head  Master of the said School to the appellant in terms of  letter dated 30.8.2000.  An administrative order can be  challenged in a proper forum only by the right person for a  right remedy.

In Administrative Law, Eighth Edition by HWR Wade &  C.F. Forsyth, at p. 293, it is stated :

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"An officer de facto is one who has the  reputation of being the officer he  assumes to be, and yet is not a good  officer in point of law."   

       The question as to whether the relationship of the  appellant with the said School could be validly terminated  by the Managing Committee or not could have been raised only  in an appropriate proceeding where the State was a necessary  party.   

An order may be void  for one and voidable for the  other.  An invalid order necessarily need not be non est;   in a given situation it has to be declared as such.  In an  election petition, the High Court was not concerned with the  said issue.

In Administrative Law, Eighth Edition by HWR Wade &  C.F. Forsyth, at page 309, it is stated :

"Effect on third parties :  

If an act or order is held to be ultra  vires and void it is natural to assume  that, being a nullity, it is to be  treated as non-existent by all who would  otherwise be concerned.  But the  judgment of a court binds only the  parties to it, so that here also there  are problems of relativity.  Once again  Lord Diplock has supplied the answer.

Although such a decision is directly  binding only as between the parties to  the proceedings in which it was made,  the application of the doctrine of  precedent has the consequence of  enabling the benefit of it to accrue to  all other persons whose legal rights  have been interfered with in reliance on  the law which the statutory instrument  purported to declare.

In effect, therefore, the court’s  judgment of nullity operates erga omnes,  i.e. for and against everyone concerned.

Patent and latent invalidity

In a well-known passage Lord Radcliffe  said :

An order, even if not made in good  faith, is still an act capable of legal  consequences.  It bears no brand of  invalidity upon its forehead.  Unless  the necessary proceedings are taken at  law to establish the cause of invalidity  and to get it quashed or otherwise  upset, it will remain as effective for  its ostensible purpose as the most  impeccable of orders.

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This must be equally true even where the  ’brand of invalidity’ is plainly visible  : for there also the order can  effectively be resisted in law only by  obtaining the decision of the court.   The necessity of recourse to the court  has been pointed out repeatedly in the  House of Lords and Privy Council,  without distinction between patent and  latent defects.  Lord Diplock spoke  still more clearly, saying that  

it leads to confusion to use such terms  as ’voidable’ ’voidable ab initio’,  ’void’ or ’a nullity’ as descriptive of  the status of subordinate legislation  alleged to be ultra vires for patent or  for latlent defects, before its validity  has been pronounced on by a court of  competent jurisdiction."         

       The appellant herein had accepted the order of  termination.  In that view of the matter, the High Court  could not have proceeded on the basis that the order of  termination was illegal.  So long as the order of  provincialisation was not issued, as noticed hereinbefore,  there was no relationship of employer and employee between  the appellant and the State of Assam.  The appellant had  been working subject to the discretion of the Managing  Committee.  His voluntary services could be refused to be  taken by the Managing Committee of the School.  The question  would have been otherwise, had the purported service  conditions of the appellant been governed by a statute or  statutory rules, regularization of a teacher would be  permissible in law, if he remains a teacher on the day on  which such an order is passed.  Had he been in service on  30.10.2000, the same could have been regularized with  retrospective effect but he was not in service of the School  and on that date the question of his regularization would  not arise.   It is only in that context the High Court was  required to consider as to whether the validity or otherwise  of the order of termination passed by the Managing Committee  could have been the subject matter of a decision by an  Election Tribunal.       

The contention of Mr. Bachawat to the effect that   services of  an employee can only be terminated in certain  situations could have been accepted if the jural  relationship had come into being and not otherwise.   

CONCLUSION :

For the reasons aforementioned, we are of the opinion  that the High Court has committed a manifest error in  holding that the appellant being a holder of an office of  profit disentitled himself from contesting the election in  terms of Article 191 of the Constitution of India.   

The appeal, therefore, is allowed.  The judgment and  order of the High Court under challenge is set aside.   However, in the facts and circumstances of the case, there  shall be no order as to costs.

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