Supreme Court of India
STATE OF ORISSA & ANR.versusMAMATA MOHANTY
- Citation
- 2011 INSC 113
- Decided
- 9 February 2011
- Disposal
- Disposed off
- Bench
- P SATHASIVAM
Holding
A teacher appointed without the requisite qualification at the time of appointment cannot claim the grant‑in‑aid scheme or the UGC pay scale until he acquires the additional qualification, and an order bad in its inception cannot be sanctified later.
Summary
The Supreme Court examined a group of appeals challenging High Court orders that granted UGC pay‑scale benefits to lecturers appointed in aided colleges without meeting the statutory eligibility of 54% marks in their Master's degree and without following the prescribed advertisement procedure. The Court held that appointments made without the requisite qualifications are void ab initio and cannot be regularised by later relaxation or condonation by the university. Consequently, a teacher cannot claim the grant‑in‑aid scheme or the UGC pay scale until he acquires the additional qualification (M.Phil/Ph.D.) required for eligibility. The Court also ruled that the doctrine of limitation and laches applies in writ jurisdiction, and the long delay in filing the petitions barred relief. Finally, the Court dismissed the appeals, directing the authorities to examine individual cases and grant any pay arrears only after the teacher satisfies the eligibility criteria.
Issues considered
- Whether appointments of lecturers without satisfying the statutory eligibility and without proper advertisement are valid.
- Whether the grant‑in‑aid scheme and UGC pay‑scale benefits can be awarded to teachers appointed illegally or without the required qualifications.
- Whether the doctrine of limitation and laches can bar relief in writ petitions filed after a long delay.
- Whether the university’s relaxation or condonation of eligibility requirements is lawful under the Rules.
- Whether the High Court judgments can be upheld despite being per incuriam and contrary to earlier Supreme Court precedents.
Legislation cited
Subjects
service lawgrant‑in‑aid schemeeligibilityUGC pay scaleArticle 14Article 16Article 21Adelaylachesper incuriamrelaxation of eligibilityappointment without advertisementvoid order
Judgment
[2011] 2 S.C.R. 704
A STATE OF ORISSA & ANR.
v.
MAMATA MOHANTY
(CIVIL APPEAL NO. 1272 OF 2011 ETC.)
FEBRUARY 9, 2011
B
[P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]
SERVICE LAW:
C OR/SSA EDUCATION (RECRUITMENT AND
CONDITIONS OF SERVICE OF TEACHERS AND
MEMBERS OF THE STAFF OF AIDED EDUCATIONAL
INSTITUTIONS) RULES, 1974 :
Rules 2(1), 4 to 7 - Lecturers receiving grant-in-aid -
D Claiming UGC pay scale w.e.f 1.1.1986, as per Notification
dated 6.10.1989 - Writ petitions allowed by High Court
placing reliance on earlier decisions - Held : Questions
raised in instant appeals had never been considered by
courts earlier - A teacher who had been appointed without
E possessing the requisite qualification at initial stage, cannot
get the benefit of grant-in-aid scheme unless he/she acquires
the additional qualification and, therefore, question of grant
of UGC pay scale would not arise unless such teacher
acquires the additional qualification for benefit of grant-in-aid
F scheme - However, terminating the services of those who had
been appointed illegally and/or withdrawing the benefit of
grant-in-aid scheme would not be desirable as a long period
has elapsed - But, UGC pay scale cannot be granted prior
to the date of acquisition of higher qualification - Delay/
G /aches -Constitution of India, 1950 - Articles 14, and 16 and
21 - Stare decisis - Rule of per incurium.
CONSTITUTION OF IND/A, 1950 :
Article 226 - Writ petition - Limitation for filing of - Held
H 704
STATE OF ORISSA & ANR. v. MAMATA MOHANTY 705
'
: Doctrine of limitation being based on public policy is A
applicable to writ petitions which may be dismissed at initial
stage on ground of delay and /aches - Relief granted in
similar case cannot furnish a proper explanation for delay/
/aches - Limitation Act, 1963 - s.3
B
Article 226 ..:. Writ petition - Held : Relief not founded on
pleadings should not be granted - Relief - Pleadings.
Article 14 -Held : Does not envisage negative equality
· -The principle also applies to judicial pronouncements ..:.
Once the court comes to the conclusion that a wrong order · C
has been passed, it becomes the solemn duty of the court to
rectify the mistake.
Articles 14 and 16 -Held: Even if names of candidates
are requisitioned from Employment Exchange, in addition o
thereto, it is mandatory on the part of employer to invite
applications from open market by advertising the vacancies
in newspapers having wide circulation or by announcement
in Radio and Television -Service Law -Appointments.
Article 14 and 16 - Relaxation or condoning of deficiency · E
- Held : Granting relaxation subsequently amounts to change
of criteria after issuance of advertisement and is violative of
fundamental rights enshrined under Articles 14 and 16 of
similarly situated persons who did not apply for want of
eligibility - An appointment which is bad in inception does not F
get sanctified at a later stage -Concept of adverse possession
of lien on post or holding over are not applicable in service
jurisprudence - A person not possessing the requisite
qualification cannot hold the post nor can he approach the
court as he does not have a right which can be enforced G
through court - Service Law - Relaxation in eligibility.
Article 21-A -Education -Held : It is not permissible for
State while controlling education to impinge the standard of
education -Paucity of funds cannot be a ground for State not H
706 SUPREME COURT REPORTS (2011) 2 S.C.R.
A to provide quality education to its future citizens -Therefore,
State provides grant-in-aid to private schools -However, while
granting recognition and affiliation, it is mandatory to adhere
to the conditions imposed which include the minimum
eligibility for appointment of teaching staff -The selection of
8 the most suitable persons is essential in order to maintain
excellence and the standard of teaching - Service Law -
Eligibility of teaching staff.
CIRCULARS/GOVERNMENT ORDERS/
NOT/FICA TIONS:
c
Circulars/Letters - Filing of in courts - HELD: Some of
the Circulars/letters! orders filed in court may not be in
conformity with law and may be violative of the mandatory
provisions of the Constitution - Such circulars/letters cannot
o be given effect to.
STARE DEC/SIS :
Rule of per incurium -Held : Courts have developed this
principle in relaxation of the rule of stare decisis -Thus, the
E "quotable in lawn is avoided and ignored if it is rendered in
ignoratium of a statute or other binding authority - The
judgments passed without noticing the judgments in Damodar
Nayak and Bhanu Prasad Panda are held to be not of binding
nature.
F
WORDS AND PHRASES :
Expression 'per incurium' - Connotation of.
Respondent No. 1 in CA No. 1272/2011 was
G appointed as a Lecturer on 9.7.1979 and her appointment
was approved by the Director of Higher Education. By
order dated 18.12.1985 she was granted the benefit of
receiving 1/3rd grant-in-aid Scheme. The Government of
Orissa, by Notification dated 6.10.1989, revised the pay
H scale enforceable with effect from 1.1.1986 as per the
STATE OF ORISSA & ANR. v. MAMATA MOHANTY 707
' ' I•
recommendations of UGC. The Notification was A
applicable only in cases where the post was granted the
benefit of grant-in-aid Scheme by 1.4.1989 and the person
manning that post must have a good academic record
i.e. 54% or its equivalent grade in a Master's Course. The
respondent filed a writ petition before the High Court on B
11.11.2005 seeking a direction from the State Government
to pay her the revised pay scale as per Notification dated
6.10.1989 with effect from 1.1.1986 as had been granted
by the High Court in OJC No. 3705 of 1987 and other
similar cases. The writ petition was contested bythe c
appellants on the ground that since the respondent had
secured only 40% marks in her Master's Course, she was
not eligible for appointment and her appoint~nt being
not in consonance with law, remained illegal. The High
Court, however, placing reliance on its earlier judgments, 0
allowed the writ petition .. Aggrieved, the State
Government filed an appeal. Similarly, the other appeals
were also filed.
It was contended for the respondents that the High
Court had been dealing with the subject matter for a long E
" '
time and once SLPs against judgments of the High Court
had been dismissed by the Supreme Court, in limine,
judicial discipline and decorum would demand the
Supreme Court to follow the same order and, therefore,
the judgment impugned in the instant appeals did not F
warrant any interference. On the other hand, it was
contended for the appellants that factual and legal issues
involved in the instant appeals had never been
considered either by the High Court or by the Supreme
Court. G
The questions for consideration before the Court
were : {i) whether the orders of the High Court could be
given effect to or be considered by the courts to grant a
relief to the persons whose appointments had been
illegal for want of eligibility and for not following the H
708 SUPREME COURT REPORTS [20111 2 s.c.R.
A procedure prescribed by law, i.e. advertisement, etc. and
(ii) whether the delay and laches could be condoned all
together giving the respondents the impetus of the earlier
judgments in cases of persons who had been diligent
enough to approach the court within a reasonable period.
B
Disposing of the appeals, the Court
HELD: 1. The questions raised in the instant appeals
had never been considered by any of the courts,
however, they involve substantial questions of law of
C public importance and, therefore, require proper
adjudication. [para 11) [729-F]
2. STATUTORY PROVISIONS - RELEVANT PARTS
2. In view of the definition of 'University' in Rule 2(i)
D of the Orissa Education (Recruitment and Conditions of
Service of Teachers and Members of the Staff of Aided
Educational Institutions) Rules, 1974, "University" means
all the four universities of Orissa, as enumerated in the
Rules, namely, Utkal University, Behrampur University,
E Sambalpur University and Sri Jagannath Sanskrit Vishwa
Vidyalaya. The instant cases relate to Utkal University. It
is the Selection Board constituted by the Government
under Rule 4 of the Rules 1974, which could call the
candidates for interview/tests and make the selection
F according to merit [Rule 5). The Selection Board shall
make the teachers available to individual colleges as per
their need. Thus, the Committee of Management does not
have a right to make the appointment of a teacher of its
own. More so, under the Rules 1979, the teachers so
G appointed are liable to be transferred throughout the State
of Orissa even to a College which may be affiliated to any
of the four Universities. [para 12) [731-D; 730-A; 731-D-F]
3. EDUCATION :
H 3.1. Education is the systematic instruction,
STATE OF ORISSA & ANR. v. MAMATA MOHANTY 709
schooling or training given to the young persons in A
preparation for the work of life. It also connotes the whole
course of scholastic instruction which a person has
received. Education connotes the process of training and
developing the knowledge, skill, mind and character of·
students by formal' schooling. The excellence of B ·
Instruction provided by an educational institution mainly
depends directly on the excellence of the teaching staff.
Therefore, unless they themselves possess a good
academic record/minimum qualifications prescribed as an
eligibility, it is beyond imagination of anyone that c
standard of education can be maintained/enhanced. [para
14] [733-H; 734-A-C]
The Sole Trustee Loka Shikshana · Trust v. The
Commissioner of Income Tax, Mysore, AIR 1976 SC 10;
Frank Anthony Public School Employees' Association v. D
Union of India & Ors., AIR 1987 SC 311; Osmania University
Teachers' Association v. State of Andhra Pradesh & Anr., AIR
1987 SC 2034; and Director (Studies), Dr. Ambedkar Institute
of Hotel Management, Nutrition & Catering Technology,
' Chandigarh & Ors. v. Vaibhav Singh Chauhan, 2008 (15 ) E
SCR 224 = (2009) 1 SCC 59); Meera Massey (Dr) v. S.R.
Mehrotra (Dr) & Ors., AIR 1998 SC 1153 and Chandigarh
Administration & Ors. v. Rajni Vali & Ors., AIR 2000 SC 634
-relied on
F
Report of the University Education Commission, i.e.,
Radhakrishnan Commission; Report of the Committee on
University Administration 1964(1967) - referred to
3.2. Paucity of funds cannot be a ground for the State
for not providing quality education to its future citizens. G
It is for this reason that in order to maintain the standard
of education, the State Government provides grant-in-aid
to private schools to ensure the smooth running of the
institution so that the standard of teaching may not suffer
for want of funds. Article 21A of the Constitution of India H
;
710 SUPREME COURT REPORTS [2011] 2 S.C.R.
A has been added by amending the Constitution with a view
_ 1o facilitate the children to get proper and good quality
of education. The selection of the most suitable persons
is essential in order to maintain excellence and the
standard of teaching. It is not permissible for the State
B that while controlling the education it may impinge the
standard of education. [para 17] [736-C-G]
3.3. This Court in Damodar Nayak has categorically
held that a person cannot get the benefit of grant-in-aid
unless he completes the deficiency of educational
C qualification. Further, this Court in Dr. Bhanu Prasad
Panda upheld the termination of services of the appellant
therein for not possessing 55% marks in Master Course.
[para 46{xii)] [752-D-E]
D State of Orissa & Anr. v. Damodar Nayak ·& Anr., AIR
1997 SC 2071 and Dr. Bhanu Prasad Panda v. Chancellor,
Sambalpur University & Ors., (2001) 8 SCC 532 -relied on
3.4. In case, a person cannot get the benefit of grant-
E in-aid scheme unless he completes the deficiency of
educational qualification, question of grant of UGC pay .
scale does not arise. [para 46{xiv)] [752-H; 753-A]
4.APPOINTMENT/EMPLOYMENT WITHOUT
ADVERTISEMENT:
F
4.1. Keeping in view the requirements of Article 16 of
the Constitution, there must be a notice published in the
appropriate manner calling for applications and all those
who apply in response thereto should be considered
G fairly. Even if the names of candidates are requisitioned
from Employment Exchange, in addition thereto it is
mandatory on the part of the employer to invite
applications from all eligible candidates from the open
market by advertising the vacancies in newspapers
H having wide circulation or by announcement in Radio
STATE OF ORISSA & ANR. v. MAMATA MOHANTY 711
and Television. An appointment made by merely calling A
the names from the Employment Exchange or putting a
note on the Notice Board etc. violates the mandates of
Articles 14 and 16 of the Constitution as it deprives the
candidates who are eligible for the post, from being
considered. A person employed in violation of these B
provisions is not entitled to any relief including salary.
[para 18-19) [737-A-C; F-H; 738-A]
Delhi Development Horticulture Employees' Union v.
Delhi Administration, Delhi & Ors., AIR 1992 SC 789; State C
of Haryana & Ors. v. Piara Singh & Ors., AIR 1992 SC 2130;
Excise Superintendent Ma/kapatnam, Krishna District, A.P.
v. K.B.N. Visweshwara Rao & Ors., 1996 ( 5) Suppl. SCR
=
73 (1996) 6 SCC 216; Arun Tewari & Ors. V. Zita Mansavi
Shikshak Sangh & Ors., AIR 1998 SC 331; Binod Kumar
Gupta & Ors. v. Ram Ashray Mahoto & Ors., AIR 2005 SC D
2103; National Fertilizers Ltd. & Ors. v. Somvir Singh, AIR
2006 SC 2319;. Telecom District Manager & Ors. v. Keshab
=
Deb, 2008 (7 ) SCR 835 (2008) 8 SCC 402; State of Bihar
v. Upendra Narayan Singh & Ors., 2009 (4 ) SCR 866 =
(2009) 5 SCC 65; and State of Madhya Pradesh & Anr. v. E
. Mohd. Ibrahim, 2009 (8 ) SCR 229 = (2009) 15 SCC 214) -
referred to.
4.2. In the instant matters, the procedure prescribed
under the Rules, 1974 has not been followed in all the F
cases while making appointments of the respondents/
teachers at initial stage. Some of the persons ha~
admittedly been appointed merely by putting some note
on the Notice Board of the College. Some of these
teachers did not face the interview test before the G
· Selection Board. Their appointments were approved by
the statutory authority i.e. Director of Higher Education
after a long long time; in some cases even after 10-12
years of their initial appointment. [para 46 (i) and (iii)] [750-
G-H; 751-B-C]
H
712 SUPREME COURT REPORTS [2011] 2 S.C.R.
A 5. ORDER BAD IN INCEPTION :
5.1. It is a settled legal proposition that if an order is
bad in Its inception, it does not get sanctified at a later
stage. A subsequent action/development cannot validate
an action which was not lawful at its inception, for the
8
reason that the illegalify strikes at the root of the order. If
an order at the initial stage is bad in law, then all further
proceedings consequent thereto will be non est and have
to be necessarily set aside. A right in law exists only and
C only when it has a lawful origin. [para 20] [738-C-D] .
Upen Chandra Gogoi v. State of Assam & Ors., AIR 1998
SC 1289; Mangal Prasad Tamoli (Dead) by L.Rs. v.
NaNadeshwar Mishra (Dead) by L.Rs. & Ors. , AIR 2005 SC
1964; and Ritesh Tiwari & Anr. v. State of U.P. & Ors., AIR
D 2010 SC 3823- relied on
5.2. The concept of adverse possession of lien on
post or holding over is not applicable in service
jurisprudence. Therefore, continuation of a person
E wrongly appointed on post does not create any right In
his favour. [para 20 and 46(xx)] [753-G-H; 738-F]
Dr. M.S. Patil v. Gulbarga University & Ors., AIR 2010
SC 3783 - relied on
F 6. ELIGIBILITY LACKING:
6.1. A person who did not possess the requisite
percentage of marks as per the statutory requirement or
is lacking the eligibility cannot hold the post, nor can he
approach the court for the reason that he does not have
G a right which can be enforced through court. [para 21-22]
[738-H; 739-F-G]
Dr. Prit Singh v. S.K. Manga/ & Ors., 1992 ( 1 ) Suppl.
SCR 337 = 1993 Supp (1) SCC 714; Pramod Kumar v. U.P.
H Secondary Education SeNices Commission & Ors., AIR 2008
STATE OF ORISSA & ANR. v. MAMATA MOHANTY 713
SC 1817 -relied on A
6.2. A candidate becomes eligible to apply for a post
only if he fulfils the required minimum benchmark fixed
by the rules/advertisement. At the relevant time of
appointment of the respondents/teachers there has been .8
- a requirement of possessing good second class i.e. 54%
marks in Master's Course and none of the said
respondents had secured the said percentage. Thus,
none of the respondents could even submit the
application. [para 46 (ii) and (iv)] [751 ·A·C·D]
c
7. RELAXATION :
7.1. In absence of an enabling provision for grant of
relaxation, no relaxation can be made. Even if such a
power is provided under the Statute, it cannot be o
exercised arbitrarily. Such a power cannot be exercised
treating it to be an implied, incidental or necessary power
for execution of the statutory provisions. Even an implied
power is to be exercised with care and caution with
reasonable means to remove the obstructions or to E.
overcome the resistance in enforcing- the statutory
provisions or executing its command. Incidental and
ancillary powers cannot be used in utter disregard of the
object of the Statute. Such power can be exercised only
to make the legislation effective so that the ultimate power F
does not become illusory, which otherwise would be
contrary to the intent of the legislature. [para 30-31) [743·
F-H; 744-A]
Dr. J.P. Kulshrestha & Ors. v. Chancellor, Allahabad
University & Ors., AIR 1980 SC 2141;Rekha Chaturvedi v. G
University of Rajasthan & Ors., 1993 (1) SCR 186 =1993
Supp (3) SCC 168; P.K. Ramachandra Iyer & Ors. v. Union
of India & Ors., AIR 1984 SC 541; Secretary, A.P. Public
Service Commission v. 8. Swapna & Ors., 2005 (2) SCR 991
= (2005) 4 SCC 154; Kendriya Vidya/aya Sangathan & Ors. H
714 SUPREME COURT REPORTS [2011] 2 S.C.R.
A v. Saja/ Kumar Roy & Ors., 2006 (7). Suppl. SCR 607 =
(2006) 8 SCC 671; Food Corporation of India & Ors. v. Bhanu
Lodh & Ors., AIR 2005 SC 2775; Dr. Bhanu Prasad Panda
v. Chancellor, Sambalpur University & Ors. 2001 (3) Suppl.
=
SCR 62 (2001) 8 SCC 532; : Union of India v. Dharam
B Pa/ & Ors., 2009 (2) SCR 193 = (2009) 4 SCC 170); Matajog
Dobey v. H. S. Bhari, AIR 1956 SC 44; and State of Kamataka
v. Vishwabharathi House Building Co-operative Society &
=
Ors., 2003 (1) SCR 397 (2003) 2 SCC 412; K. Manjusree
v. State of Andhra Pradesh & Anr., AIR 2008 SC 1470; and
C Ramesh Kumar v. High Courl of Delhi & Anr., AIR 2010 SC
3714- relied on
7.2. Granting relaxation subsequently amounts to
change of criteria after issuance of advertisement, which
is impermissible in law. More so, it is violative of
D fundamental rights, enshrined under Articles 14 and 16
of the Constitution, of the similarly situated persons, who
did not apply considering themselves to be ineligible for
want of required marks. [para 46 (viii)] [751-G-H; 752-A]
E 7.3. The Circulars/Letters issued by the Government
from time to time fixed the minimum 54% marks in
. Master's Course as eligibility. In the instant matters, the
relaxation has been granted only by Utkal University;
condonation of deficiency had not been exercised by any
F University other than Utkal University. The so-called
relaxation was accorded by the Utkal University by
passing a routine order applicable to large number of
colleges, that too after a lapse of long period i.e. about a
decade. [para 12 and 46 (v)] [733-D; 751-D-E]
G 7.4. Fixation of eligibility falls within the exclusive
domain of the executive and once it has been fixed by
the State authorities under the Rules 1974, the question
of according relaxation by Utkal University could not
arise and, therefore, the order of condonation etc. is
H nullity. [para 46 (vi)] [751-E·F]
STATE OF ORISSA & ANR. v. MAMATA MOHANTY 715
7.5. The power to grant relaxation in eligibility had not A
been conferred upon any authority, either the University
or the State. In absence thereof, such power could not
have been exercised. [para 46 (xi)] [752-C]
8. DELAY/LACHES :
B
8.1. Although Limitation Act does not apply in writ
jurisdiction, however, the doctrine of limitation being
based on public policy, the principles enshrined therein
are applicable and writ petitions are dismissed at initial
stage on the ground of delay and laches. In alike case, C
getting a particular pay scale may give rise to a recurring
cause of action. In such an eventuality, the petition may
be dismissed on the ground of delay and laches and the
court may refuse to grant relief for the initial period in case
of an unexplained and inordinate delay. M.ost of the 0
petitions had been filed before the High Court after 10-
20 years for grant of UGC pay scales w.e.f. 1.1.1986 and
to pay the arrears etc. The High Court in all the cases,
granted relief with effect from 1.1.1986 or even with effect
from 1.6.1984, though even the Notification dated E
6.10.1989 makes it applicable w.e.f. 1.1.1986. The cases
had been entertained and relief had been granted by the
High Court without considering the issue of delay and
laches merely placing reliance upon earlier judgments
obtained by diligent persons approaching the courts F
within a reasonable time. [paras 9, 32, 33 and 46(xv)] [744-
G-H; 745-A; 729-B-C; 753-B]
Lachhmi Sewak Sahu v. Ram Rup Sahu & Ors., AIR
1944 Privy Council 24; and Kamlesh Babu & Ors. v. Lajpat
Rai Sharma & Ors, 2008 (6 ) SCR 653 =
(2008) 12 SCC 577 G
-relied on.
8.2. Relief granted by the Court in a similar case,
cannot furnish a proper explanation for delay and laches.
A litigant cannot claim impetus from the judgment in H
716 SUPREME COURT REPORTS [2011] 2 S.C.R.
A cases where some diligent person had approached the
Court within a reasonable time. [para 34) [745-B-C]
Mis Rup Diamonds & Ors., v. Union of India & Ors., AIR
1989 SC 674; State of Karnataka & Ors. v. S.M. Kotrayya &
=
B Ors., 1996 (5) Suppl. SCR 426 (1996) 6 SCC 267; and
Jagdish Lal & Ors. v. State of Haryana & Ors., AIR 1997 SC
2366 - relied on.
9. RELIEF NOT CLAIMED - CANNOT BE GRANTED :
c 9.1. A decision of a case cannot be based on
grounds outside the pleadings of the parties. Pleadings
and particulars are required to enable the court to decide
the rights of the parties in the trial. Thus, the pleadings
are more to help the court in narrowing the controversy
0 involved and to inform the parties concerned about the
question in issue, so that the parties may adduce
appropriate evidence on the said issue. It is a settled
legal proposition that "as a rule relief not founded on the
pleadings should not be granted." [para 35) [745-E-F]
E Sri Mahant Govind Rao v. Sita Ram Kesho, (1898) 25
Ind. App. 195; Mis. Trojan & Co. v. RM. N.N. Nagappa
Chettiar, AIR 1953 SC 235; lshwar Dutt v. Land Acquisition
Collector & Anr., AIR 2005 SC 3165; and State of
Maharashtra v. Hindustan Construction Company Ltd., 2010
F (4 ) SCR 46 =(2010) 4 SCC 518 ~relied on
9.2. The High Court granted relief in some cases
which had not even been asked for, as in some cases the
UGC pay scale had been granted with effect from
G 1.6.1984, i.e., the date prior to 1.1.1986 though the same
relief could not have been granted and was not
permissible in law in view of the law laid down by this
Court in Damodar Nayak *. Thus, it clearly makes out a
case of deciding a matter without any application of mind.
H [para 46 (xvii-xviii)] [753-D-F]
STATE OF ORISSA & ANR. v. MAMATA MOHANTY 717
State of Orissa & Anr. v. Damodar Nayak & Anr., AIR A
1997 SC 2071 and Dr. Bhanu Prasad Panda v. Chancellor,
Sambalpur University & Ors., (2001) 8 SCC 532 -relied on
10. ARTICLE 14 OF THE CONSTITUTION OF INDIA.
10.1. It is a settled legal proposition that Article 14 is 8
not meant to perpetuate illegality and it does not envisage
negative equality. Thus, even if some other similarly
situated persons have been granted some benefit
inadvertently or by mistake, such order does not confer
any legal right on the petitioner to get the same relief. This C
principle also applies to judicial pronouncements. Once
the court comes to the conclusion that a wrong order has
been passed, it becomes the solemn duty of the court to
rectify the mistake rather than perpetuate the same. [para
36] [7 46-A-D] D
Chandigarh Administration & Anr v. Jagjit Singh & Anr.,
AIR 1995 SC 705; Yogesh Kumar & Ors. v. Government of
NCT Delhi & Ors., AIR 2003 SC 1241; Mis Anand Buttons
Ltd. etc. v. State of Haryana & Ors., AIR 2005 SC 565; K.K. E
Bhalla v. State of M.P. & Ors., AIR 2006 SC 898; Maharaj
Krishan Bhatt & Anr. v. State of Jammu & Kashmir & Ors.,
2008 (11 ) SCR 670 = (2008) 9 SCC 24; Upendra Narayan
Singh (supra); and Union of India & Anr. v. Kartick Chandra
Monda/ & Anr., AIR 2010 SC 3455); Hotel Ba/aji & Ors. v.
State of A.P. & Ors., AIR 1993 SC 1048; Sanjiv Datta, Dy.
F
Secy., Ministry of Information & Broadcasting, 1995 ( 3 )
SCR 450 = (1995) 3 SCC 619; Nirmal Jeet Kaur v. State
of M.P. & Anr., 2004 (3 ) Suppl. SCR 1006 = (2004) 7
SCC 558; and Mayuram Subramanian Srinivasan v. CBI, AIR
2006 SC 2449 - relied on. . G
10.2. The grievance of the respondents that not
upholding the orders passed by the High Court in their
favour would amount to a hostile discrimination, is not
worth acceptance for the reason that Article 14 of the H
718 SUPREME COURT REPORTS [2011] 2 S.C.R.
A Constitution envisages only positive equality. [para 46
(xix)] [753-G]
11 ARBITRARINESS :
11.1. The rule of law inhibits arbitrary action and also
B makes it liable to be invalidated. Every action of the State
or its instrumentalities should not only be fair, legitimate
and above-board but should be without any affection or
aversion. Procedural fairness is an implied mandatory
requirement to protect against arbitrary action where
C Statute confers wide power coupled with wide discretion
on an authority. If the procedure adopted by an authority
offends the fundamental fairness or established ethos or
shocks the conscience, the order stands vitiated. The
decision making process remains bad. [para 38) [747-E-
D F]
Haji T. M. Hassan Rawther v. Kera/a Financial
Corporation, AIR 1988 SC 157; Dr. Rash Lal Yadav v. State
of Bihar & Ors., 1994 ( 1 ) Suppl. SCR 231 = (1994) 5 SCC
E 267; and Tata Cellular v. Union of India, 1994 ( 2 ) Suppl.
SCR 122 =(1994) 6 SCC 651; State of Andhra Pradesh &
Anr. v. Na/la Raja Reddy & Ors., AIR 1967 SC 1458; S.G.
Jaisinghani v. Union of India & Ors., AIR 1967 SC 1427;
Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR
F 1952 SC 16 - relied on.
11.2. The object and purpose of according
recognition and affiliation to educational institutions can
not be ignored. Therefore, while granting the recognition
and affiliation even for non-governmental and non-aided
G private colleges, it is mandatory to adhere to the
conditions imposed which also include the minimum
eligibility for appointment of teaching staff. In the instant
case, it appears to be a clear cut case of arbitrariness
which cannot be approved. [para 37] [747-A-D]
H
STATE OF OR1ss.A."& ANR. v. MAMATA MOHANTY 719
11.3. The submission on behalf of the respondents A
that Government orders/circulars/letters have been
complied with, therefore, no interference is called for, is
preposterous for the simple reason that such orders/
circulars/letters being violative of statutory provisions
and constitutional mandate are just to be ignored in terms B
of the judgment of this Court in Ram Ganesh Tripathi *.
[para 46 (xxi)] [754-A-B]
*Ram Ganesh Tripathi & Ors. v. State of U.P. & Ors., AIR
1997 SC 1446 - relied on.
c
11.3. It is a matter of common experience that a large
number of orders/letters/circulars, issued by the State/
statutory authorities, are filed in court for placing reliance
and acting upon it. However, some of them are definitely
found to be not in conformity with law. There may be D
certain such orders/circulars which are violative of the
mandatory provisions of the Constitution. [para 41) [749-
F]
11.4. The authority passed illegal orders in E
contravention of the constitutional provisions arbitrarily
without any explanation whatsoever polluting the entire
education system of the State, ignoring the purpose of
grant-in-aid scheme itself that it has been so provided' to
maintain the standard of education. [para 46 (xvi)] [753-
C] F
11.5. The whole exercise done by the State
authorities suffers from the vice of arbitrariness and, thus,
is violative of Article 14 of the Constitution. Therefore, it
cannot be given effect to. [para 42] [749-B-C] G
12. PER INCURIAM - DOCTRINE :
12.1. "lncuria" literally means "carelessness". In
practice per incuriam is taken to mean per ignoratium. ihe
H
720 SUPREME COURT REPORTS (2011] 2 S.C.R.
A Courts have developed' this principle in relaxation of the
rule of stare decisis. Thus the "quotable in law", is
avoided and ignored if it is rendered in ignoratium of a
Statute or other binding authority. [para 43] [749-D]
Mamleshwar Prasad & Anr. v. Kanahaiya Lal (Dead) by
8
Lrs., AIR 1975 SC 907; State of Orissa & Anr. v. Damodar
Nayak & Anr., AIR 1997 SC 2071 - relied on.
12.2. The two judgments in Damodar Nayak and
Bhanu Prasad Panda could not be brought to the notice
C of either the High Court or this Court while dealing with
the issue. Special leave petition in the case of Kalidas
Mahapatra & Ors.* has been dealt with without
considering the requirement of law merely making the
reference to Circular dated 6.11.1990, which was not the
D first document ever issued in respect of eligibility. Thus,
all the judgments and orders passed by the High Court
as well as by this Court cited and relied upon by the
respondents are held to be not of a binding nature (Per
in curiam). [para 46(xiii)] [752-F-G]
E State of Orissa & Anr. v. Damodar Nayak & Anr., AIR
1997 SC 2071 and Dr. Bhanu Prasad Panda v. Chancellor,
Sambalpur University & Ors., (2001) 8 SCC 532 -relied on
State of Orissa & Anr. v. Kalidas Mahapatra & Ors.,
F [SLP(C) Nos. 14206-14209 of 2001 decided by Supreme
Court on 11.3.2001- held per incurium.
12.3. Thus, it stands crystal clear that a teacher who
had been appointed without possessing the requisite
G qualification at initial stage cannot get the benefit of grant-
i n-aid scheme unless he acquires the additional
qualification and, therefore, question of grant of UGC pay
scale would not arise in any circumstance unless such
teacher acquires the additional qualification making him
H eligible for the benefit of grant-in-aid scheme. The
_ STATE OF ORISSA & ANR. v. MAMATA MOHANTY 721
~-
cumulative effect, therefore, comes to that such teacher A
will not be entitled to claim the UGC pay scale unless he
acquires the higher qualification i.e. M.Phil/Ph.D. [para 47]
[754-C-D].
12.4. In the facts and circumstances of the case, 8
terminating the services of those who had been
appointed illegally and/or withdrawing the benefits of
grant-in-aid scheme from those who had not completed
the deficiency in eligibility/educational qualification or
from those who had been granted from the date prior to C
completing the deficiency, may not be desirable as a long
period has elapsed. So far as the grant of UGC pay scale
is concerned, it cannot be granted prior fo the date Of
acquisition of higher qualification. In view of the above,
the impugned judgment/order cannot be sustained in the.
· eyes of law. [para 48] [754-E-F] D
12.5. The full particulars of the respondent-teachers
are not before this Court as in some cases there had
been claims and counter claims of possessing the
requisite marks i.e. 54% in Master's Course. Therefore, it E
is directed : (i) In case of dispute regarding possessing
of 54% marks, the authorities, Secretary of Higher
· Education/Director of Higher Education may examine the
' factual position and decide the case of individual
teachers in accordance with law laid down in this case; F
- and (ii) If a person did not possess the requisite
qualification on the date of appointm~mt and was not
entitled for grant-in-aid scheme, unless fie completes the
d~ficiency, his case would be considered from the date
of completing the deficiency for grant of UGC pay scale. G
However, in no case, the UGC pay scale can be granted
prior to the date of according the benefit of the grant-in-
aid scheme, i.e. by acquiring the degree of M.Phil/Ph.D.
[para 49] [754-G-H; 755-A-C]
H
722 SUPREME COURT REPORTSI
[2011] 2 S.C.R
"A Case Law Reference:
AIR 1976 SC 10 relied on para 14
AIR 1987 SC 311 relied on para 14
AIR 1987 SC 2034 relied on para 14
B
2008 (15 ) SCR 224 relied on para 14
AIR 1998 SC 1153 relied on para 14
AIR 2000 SC 634 relied on para 15
c
AIR 1992 SC 789 referred to para 18
AIR 1992 SC 2130 referred to para 18
1996 ( 5 ) Suppl. SCR 73 referred to para 18
D AIR 1998 SC 331 referred to para 18
AIR 2005 SC 2103 referred to para 18
AIR 2006 SC 2319 referred to para 18
E 2008 (7 ) SCR 835 referred to para 18
2009 (4 ) SCR 866 referred to para 18
.
2009 (8 ) SCR 229 referred to para 18
AIR 1998 SC 1289 relied on para 20
F
AIR 2005 SC 1964 relied on para 20
AIR 2010 SC 3823 relied on para 20
AIR 2010 SC 3783 relied on para 20
G
1992 ( 1 ) Suppl. SCR 337 relied on para 21
AIR 2008 SC 1817 337 relied on para 22
AIR 1980 SC 2141 relied on para 23
H 1993 ( 1 ) SCR 186 relied on para 24
STATE OF RAJASTHAN & ORS. v. DAYA LAL & 723
ORS.
AIR 1984 SC 541 relied on para 25 A
2005 (2 ) SCR 991 relied on para 26
2006 (7 ) Suppl. SCR 607 relied on para 27
AIR 2005 SC 2775 relied on para 28
B
2001 ( 3 ) Suppl. SCR 62 relied on para 29
2009 (2 ) SCR 193 relied on para 30
AIR 1956 SC 44 relied on para 31
c·
2003 ( 1 ) SCR 397 relied on para 31
AIR 2008 SC 1470 relied on para 31
AIR 2010 SC 3714 relied on para 31
AIR 1944 Privy Council 24 relied on para 32 D
2008 (6 ) SCR 653 relied on para 32
AIR 1989 SC 674 relied on para 34 -
1996 ( 5 ) Suppl. SCR 426 relied on para 34 E
AIR 1997 SC 2366 relied on para 34
(1898) 25 Ind. App. 195 relied on para 35
AIR 1953 SC 235 relied on para 35
F
AIR 2005 SC 3165 relied on para 35
2010 (4 ) SCR 46 relied on para 35
AIR 1995 SC 705 relied on para 36
G
AIR 2003 SC 1241 relied on para 36
AIR 2005 SC 565 · relied on para 36
AIR 2006 SC 898 relied on para 36
H
724 SUPREME COURT REPORTS [2011] 2 S.C.R.
A 2008 (11 ) SCR 670 relied on para 36
AIR 2010 SC 3455 relied on para 36
AIR 1993 SC 1048 relied on para 36
1995 ( 3) SCR 450 relied on para 36
.B
2004 (3 ) Suppl. SCR 1006 relied on para 36
AIR 2006 SC 2449 relied on para 36
AIR 1988 SC 157 relied on para 38
c
1994 ( 1 ) Suppl. SCR 231 relied on para 38
1994 ( 2 ) Suppl. SCR 122 relied on para 38
AIR 1967 SC 1458 relied on para 39
D AIR 1967 SC 1427 relied on para 40
AIR 1952 SC 16 relied on para 40
AIR 1997 SC 1446 relied on para 41
E AIR 1975 SC 907 relied on para 43
AIR 1997 SC 2071 relied on para 44
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1272 of 2011.
F
From the Judgment & Order dated 22.3.2006 of the High
Court of Orissa at Cuttack in W.P. (C) No. 14157 of 2005.
WITH
G C.A. 1246-1271, 1273-1274, 1277-1281, 1283, 1285-
1287, 1289-1293, 1295-1300, 1302-1313. 1315-1321 & 1284
of 2011.
P.N. Misra, A.K. Sanghi, Shambhu Prasad Singh,
Shibashish Misra, Kirti Renu Mishra, R.S. Jena, Ghanshyam
H
STATE OF ORISSA & ANR. v. MAMATA MOHANTY 725
Yadav, Suresh Chandra Tripathy, Satya Mitra Garg, Kirti Renu . A
Mishra, Rishi Jain, Radha Shyam Jena, Rutwik Kumar, A.
Raghunath, Kedar Nath Tripathy, Bharat Sangal, K.N. Tripathi,
Shovan Mishra, Sounnak S. Das, S.K. Malik, Hara Prasad
Sahu, Kedar Nath Tripathy, Saraswati Malik, Ashok Panigrahi,
Shiv Kanungo, Satya Mitra Garg, Nilkanta Nayak, A:P. Mayee, B
Prasanna Kumar Nanda, V.S. Raju, T.N. Rao, Soumyajit Pani,
Sunil K. Jain, P.V. Dinesh, P. Rajesh, Sindhu, Nikhil Goel,
_ Marsook Bafaki, H.K. Puri, Vikay Verma, Kirti Mishra, Rishi
Jain, Sanjay Parikh, Anish R. Shah, Soumya Ray, AN. Singh,
V.K. Monga, Swetaketu Mishra, Ajay Choudhary, Sanjay Das, c
Rltin Rai, Bharat Sangal, R.R. Kumar, Vernika Tomar, Alka
Singh, Abhishth Kumar, Sibo Sankar Mishra, Raj Kumar
Parashar, V.K. Sidharthan, Promila, Sanjay Kr. Das, Rono
Mohanty, R.P. Goyal, AP. Mohanty, P.K. Pattanaik, Rutwik
Panda, Rajib Sankar Roy, Abhijit Sankar Roy,· S.K. Patri, D
Pranab Kumar Mullick, Ajay Choudhary, Sanjay Das, Prashant
Jha, Manjula Gupta, Prem Sunder Jha, P.K. Mullick, S.K. Patri,
M.N. Mishra, Suresh Chandra, Sanjay V. Kharde, Asha G. Nair,
Manoranjan Mishra, S.C. Triparthy, Shibashish Mishra, Anitha
Shenoy for the appearing parties.
E
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J.1. All the aforesaid appeals have
been filed against the judgments and orders of the High Co1,1:_rt
of Orissa at Cuttack which have been passed placing reliance · F
on its earlier judgments in similar cases. The facts and legal
issues involved herein are the same. Thus, they are heard
together and are being disposed of by the common judgment
and order. However, for convenience, Civil Appeal No. 1272 ·
of 2011 is taken to be the leading case and some reference G
to facts would be taken from other appeals as and when
necessary in the context .of legal issues involved herein.
2. The appeal has been preferred against the judgment
and order dated 22.3.2006 of the. High Court of Orlssa at
Cuttack in Writ Petition (Civil) No. 14157 of 2005. H
726 SUPREME COURT REPORTS [2011] 2 S.C.R.
A FACTS:
3. (A) The respondent was appointed as a Lecturer in Niali
College, Nia Ii, on 9. 7.1979 and her appointment as such was
appr()Ved by the Director of Higher Education, Orissa, a
B ·statutory authority - the appellant No. 2, vide order dated
18.12.1985, and she was granted the benefit of receiving 1/
3rd grant-in-aid.
(B) In order to provide better facilities to teachers and
enhance the standard of higher education, the Government of
C Orissa, came out with a Notification dated 6.10.1989 with a
revised pay scale enforceable with effect from 1.1.1986 as per
the recommendations of UGC. However, the said Notification
was applicable only in such cases where the post has been
granted the benefit of grant-in-aid Scheme by 1.4.1989 and
D person manning that post had a good academic record i.e. 54
per cent or its equivalent grade in a Masters' Course.
(C) Respondent did not make any representation before
any authority to get the benefit of the said Notification dated
E 6.10.1989, rather approached the High Court on 11.11.2005
by filing Writ Petition (Civil) No. 14157 of 2005 seeking a
direction to the State Government to pay the pre-revised pay
gcale with effect from 1.1.1986 placing reliance on the various
orders passed by the High Court earlier in cases of other
F persons e.g. in case OJC No. 3705 of 1987.
(D) The present appellants contested the said writ petition
pointing out that the respondent had secured only 40 per cent
marks in her Master's course. She was by no means, eligible
for appointment. Her appointment, being not in consonance with
G law, remained illegal. ·
(E) The High Court placing reliance on its earlier
judgments, allowed the said writ petition giving the benefit of
the U.G.C. pay scale to her w.e.f. 1.6.1984. Hence, this appeal.
H
1
STATE OF ORISSA & ANR. v. MAMATA MOHANTY 727
[DR. B.S. CHAUHAN, J.]
4. The submissions made in all these appeals, particularly A
by the respondents are that the High Court had been d/ealing
with the subject matter for a long time and judgments of the High
Court have been upheld by this court. Once the SLPs against
the judgments of the High Court which had been relied upon
by the High Court while deciding these cases, have been B
dismissed in limine, judicial discipline and decorum demand
that this Court should follow the same order. Thus, the
judgments and orders impugned herein did not warrant any
interference.
5. On the other hand, it has been subm!tted by learned C
counsel for the appellants that factual and legal issues involved
in these cases have never been considered either by the High
Court or by this Court in proper perspective. For example, in
Civil Appeal No. 1274 of 2011, State of Orissa v. Mrs. Manju
Patnaik, the matter had initially been filed before the Orissa D
Education Tribunal. Therein, the question arose as to whether
the respondent herein had been appointed by following the
procedure prescribed by the law for making the appointment.
As the State had raised the issue that respondent had been
appointed without following any procedure known in law for this E
purpose her appointment itself was illegal and void. Th',e
vacancy on the post of Lectur~r in Chemistry in Paramananda
College, Bolgarh, Dist. Khurda was never advertised nor were
the names of eligible candidates requisitioned from the
Employment Exchange. Admitted facts in the said case remain F
that the vacancy was advertised merely by affixing notices on
the notice board of the College and of Bolgarh Block Office
inviting applications from the eligible candidates. More so, the
respondent had not even faced an interview before the
Selection Board, as envisaged by the Statutory Rules in force G
at the relevant time, rather she had been interviewed merely
by representatives of the Committee of Management of the
College. The Tribunal accepted the case of the State to that
effect, but granted her reliefs sought by her. The High Court did
not even consider the issue of validity of her appointment. H
728 SUPREME COURT REPORTS [2011J 2 S.C.R.
A 6. It is further submitted that none of the courts till today
has considered that in case the institution has been accorded
the benefit of grant-in-aid scheme subsequent to 1.6.1986, there
could be no liability of the government to contribute partly or fully
to the salary of any employee of the said college, prior to the
B date of grant of such benefit, whether UGC pay scale could be
given prior to the date of according grant-in-aid benefits. In Civil
Appeal No. 1318 of 2011, State of Orissa v. Smt. Manjushree
Patnaik, the post of respondent was included under grant-in-
aid scheme w.e.f. 1.6.1988. She did not possess the requisite
c qualifications and the said respondent was put in grant-in-aid
with effect from 1988 though vide impugned judgment she has
been given benefit from 1.1.1986.
7. In all these cases, admittedly most of the respondents
did not possess the minimum eligibility, i.e., 54% marks in
D Master's course and some of them acquired it at a much later
stage. It is pointed out by the learned counsel for the
respondents herein, that Utkal University at Bhubneshwar had
condoned the deficiency of eligibility-qualification by passing
general orders from time to time. However, they failed to point
E out any statutory provision conferring competence upon the
University to condone the deficiency, what to talk of
reasonableness or propriety in condoning such deficiency. It
is evident from Civil Appeal No. 1280 of 2011, State of Orissa
& Ors. v. Dr. Jadumani Sahoo, that the respondent was
F appointed as a Lecturer in Political Science in Begunia
College, Begunia, Khurda, on 5.9.1978 and the post which he
held came into grant-in-aid scheme on 1.6.1984. He acquired
the degree of Ph.D. in 2000. His deficiency in qualification was
condoned after about 10 years by the Utkal University on
G 28.10.1987, and he has also been granted the benefit of UGC
pay scale w.e.f. 1.1.1986.
8. There are letters/circulars issued by the University as
well as by the State of Orissa for condo nation of the deficiency.
However, the question does arise as to whether this kind of
H
· STATE OF ORISSA & ANR. v. MAMATA MOHANTY . 729
[DR. B.S. CHAUHAN, J.]
orders can be given effect to or be considered by the courts to A
grant a relief to the persons whose appointments had been
illegal for want of eligibility and for not following the procedure
prescribed by law, i.e. advertisement, etc,
9. Most of the petitions had been filed before the High 8
Court after 10-15-20 years for grant of UGC pay scales w.e.f.
. 1.1.1986 and to pay the arrears etc. The High Court in all the
cases granted the same with effect from 1.1.1986 or even with
effect from 1.6.1984, without considering the issue of delay and
laches, merely placing reliance upon its earlier judgments. Thus, C
the question does arise as to whether the delay and laches
could be condoned all together giving the respondents the
impetus of the earlier judgments in cases of persons who had
been diligent enough to approach the Court within a reasonable
period.
D
10. It has been further submitted by learned counsel for the
respondents that teachers in government colleges have also
been granted the said benefit though not entitled and the
respondents herein cannot be given hostile treatment in case
the impugned judgments and orders herein are not upheld. E
Thus, the question does arise as to whether Article 14 of the
Constitution is meant to perpetuate an illegality.
11. Considering the rival submissions made by learned
counsel for the parties, we are of the view that as the questions' F
raised hereinabove had never been considered by any of the
courts and involve substantial questions of law of public
importance, the cases require proper adjudication.
12.(A) STATUTORY PROVISIONS - RELEVANT PARTS:
G
The Orissa Education (Recruitment and Conditions of
Service of Teachers and Members of the Staff of Aided
Educational Institutions) Rules, 1974 (hereinafter called 'Rules
1974').
H
730 SUPREME COURT REPORTS [2011] 2 S.C.R
A Rule 2 (i) - "University" means Utkal University, Berhampur
University, Sambalpur University and Sri Jagannath
Sanskrit Vishwa Vidyalaya.
Chapter II provides for establishment of the Selection
Board and Rule 4 reads that there will be a Selection
B
Board constituted by the Government for the purpose of ·
making appointments of teaching and other staffs in aided
schools.
Rule 5(1) thereof provides that the educational institutions
c would determine the vacancies subject-wise and indicate
the same to the Director of Education who shall process
the applications so received for those posts and transmit
the same to the Selection Board after determining the
genuineness of the vacancies in a particular college.
D
Rule 5(2) - The Selection Board sha'll, /on receipt of
applications and certificates referred to in Sub-rule (1)
recommend a list of candidates in order of merit strictly
according to the number of vacancies, to the concerned
Directors who shall thereupon, allot candidates to the
E
concerned institutions strictly in order of merit as per
vacancy.
Rule 5(3) - Appointment shall be made by Managing
Committee or the Governing Body as the case may be,
F of the candidates allotted under Sub-rule (2).
Rule 6 provides for Procedure of Selection - (1) The
Selection Board shall, at such intervals as it deems proper,
call for applications for various posts in respect of which
G vacancies are likely to arise in the course of the next one
year in such manner as may be determined in the
regulation of the Selection Board.
(2) The Selection Board shall conduct examinations
including a viva. voce examination of any candidate or all
H
STATE OF ORISSA & ANR. v. MAMATA MOHANTY 731
[DR. B.S. CHAUHAN, J.]
candidates with a view to determining their merit and A
suitability in the matter appointed in its regulations.
Rule 7 - Condition of eligibility of candidates - Provided
that upper age limit may be relaxable in respect of
candidates belonging to Scheduled Castes, Scheduled B
Tribes and such other categories as may be specified by
Government from time to time for recruitment to the similar
or corresponding post under the Government.
The Orissa Aided Educational Institutions Employee's
Common Cadre and Inter transferability Rules, 1979 C
(hereinafter called Rules 1979), make the post of teaching staff
transferable to any other college, affiliated to any other
University.
In view of the above, University means all the four D
universities of Orissa, not only Utkal University at Bhubneshwar.
It is the Selection Board constituted under the Rules 1974,
which could call the candidates for interview/tests and make
the selection according to merit. The Selection Board shall
make the teachers available to individual colleges as per their E
need. Thus, the Committee of Management does not have a
· right to make the appointment of a teacher of its own. More ·
so, the teachers so appointed are liable to be transferred
throughout the State of Orissa even to a College which q1ay·
be affiliated to either of the aforesaid universities. - '
F
(B) RELEVANT PART OF NOTIFICATIONS/ CIRCULARS/
LETTERS:
(i) Government of Orissa - Education and Youth Services
Department Resolution dated 5.9.1978 dealt with the 9'
subject- qualification for recruitment of lecturers in affiliated
colleges of the State of Orissa and the relevant part reads ,
as under:
"A consistently good academic record with at least
1st or high second cl~ss (B in the seven point scale) H
732 SUPREME COURT REPORTS [2011] 2 S.C.R.
A at the Master's degree in a relevant subject. lrl" othei
words, the University Grants Commission intended
to determine high second class as average of
minimum percentage of marks of second division
and first division as (48+60) 54% .... ."
B
(ii) Orissa State Gazette, August 19, 1983 published a
resolution dated 16.7.1983 prescribing the eligibility for
appointment of teachers in affiliated colleges. The relevant
part reads as under:
c (a) Candidate should have an M.Phil degree or a
recognized degree beyond Master's level with at/east a
second class Master's degree;
(b) A candidate not holding an M.Phil degree should
D possess a high second class Master's degree i.e. 54%
of marks and a second class Honours/Pass in the B.A./
B.Sc./B.Com examination; or
(c) A candidate not holding an M.Phil degree but
possessing a second class Master's degree should have
E obtained a first class in the Honours/Pass in B.A./B.Sc./
B.Com examination.
(iii) Utkal University passed a resolution dated 20.8. 1.986
and condoned the deficiency of qualification of different
F non-government college teachers.
(iv) Government of Orissa, Education and Youth Services
Department Circular dated 27.11.1986 dealt with the
subject - Continuance of under-qualified teachers in Non-
. Government Colleges-Eligibility to receive grant-in-aid
G from Government. The relevant part reads as under:
"The decision of Utkal University communicated to
Government in their letter NO. A.13570/86 dated 20.8.86
cannot be treated as a valid order of condonation of under
H qualification unless the concurrence of University Grants
STATE OF,,ORISSA & ANR. v. MAMATA MOHANTY 733
[DR. B.S. CHAUHAN, J.]
Commission has been obtained. The Universities which A
have made order of condonation after the concerned
Regulation of the U.G.C. may refer the matter to U.G.C.
and secure their concurrence for condonation."
(v) Government of Orissa, Education and Youth Services 8
Department Circular dated 23.4.1987 provides that the
requirement of seeking condonation by two other
universities had been withdrawn.
(vi) Resolution dated 6.10.1989 published in the Gazette
on 3.11.1989 provided for the revised pay scale of C
teachers i.e. UGC pay scales w.e.f. 1.1.1986.
(vii) Resolution dated 6.11.1990 provides for grant of UGC
pay scales as the Utkal University has condoned the
deficiency of eligibility i.e. qualifications. D
The aforesaid Circulars/Letters fixed the minimum 54%
marks in Master's Course as eligibility and the University has
condoned the deficiency in eligibility i.e. educational
qualification. The UGC pay scale granted by the Notification
dated 6.10.1989 could be made available w.e.f.1.1.1986. E
13. While dealing with the aforesaid issues we have taken
into consideration all submissions made by all the counsel
involved in these group matters. However, the main arguments
have been advanced by Shri Shibashish Misra, Ms. Kirti Renu F
Mishra and Shri Radhey Shyam Jena, Advocates for the State
and Shri A.K. Sanghi, Shri P.N. Misra, Shri Shambhu Prasad
Singh, Senior Advocates, Shri Ashok Panigrahi, Shri Kedar
Nath Tripathy, and Shri Bharat Sangal, Advocates for the
respondents. G
EDUCATION:
14. Education is the systematic instruction, schooling or
training given to the young persons in preparation for the work ·
of life. It also connotes the whole course of scholastic instruction H
734 SUPREME COURT REPORTS (2011) 2 S.C.R
A which a person has received. Education connotes the process
of training and developing the knowledge, skill, mind and
character of students by formal schooling. The excellence of
instruction provided by an educational institution mainly
depends directly on the excellence of the teaching staff.
B Therefore, unless they themselves possess a good academic
record/minimum qualifications prescribed as an eligibility, it is
beyond imagination of anyone that standard of education can
be maintained/enhanced. "We have to be very strict in
maintaining high academic standards and maintaining
c academic discipline and academic rigour if our country is to
progress". "Democracy depends for its very life on a high
standard of general, vocational and professional education.
Dissemination of 'learning with search for new knowledge with
discipline all round must be maintained at all costs". (Vide: The
D Sole Trustee Loka Shikshana Trust v. The Commissioner of
Income Tax, Mysore, AIR 1976 SC 10; Frank Anthony Public
School Employees' Association v. Union of India & Ors., AIR
1987 SC 311 ; Osmania University Teachers' Association v.
State of Andhra Pradesh & Anr., AIR 1987 SC 2034; and
Director (Studies), Dr. Ambedkar Institute of Hotel
E Management, Nutrition & Catering Technology, Chandigarh
& Ors. v. Vaibhav Singh Chauhan, (2009) 1 SCC 59).
15. In Meera Massey (Dr) v. S.R. Mehrotra (Dr) & Ors.,
AIR 1998 SC 1153, this Court extensively quoted the Report
F of the University Education Commission, i.e., Radhakrishnan
Commission, wherein grave concern was expressed observing
that "there is negligence in applying criteria of merit in the
selection" of teachers.
G The Court also quoted from another Report of the
Committee on some problems of University Administration
1964(1967) as:
"The most important factor in the field of higher education
is the type of person entrusted with teaching. Teaching
H cannot be improved without competent teachers .... The
STATE OF ORISSA & ANR. v. MAMATA MOHANTY 735
[DR. B.S. CHAUHAN, J.]
most critical problem facing the universities is the dwindling A
supply of good teachers .... The supply of the right type of
teachers assumes, therefore, a vital role in the educational
advancement of the country.
The Court further observed as under:
B
"University imparts education which lays foundation of
wisdom. Future hopes and aspiration of the country
depends on this education, hence proper and disciplined
functioning of the educational institutions should be the
hallmark. If the laws and principles are eroded by such C
institutions it not only pollutes its functioning, deteriorating
its standard but also exhibits to its own students the wrong
channel adopted. If that be so, how could such institutions
produce good citizens? It is the educational institutions
which are the future hope of this country. They lay the seed D
for the foundation of morality, ethics and discipline. If there
is any erosion or descending by those who control the
activities all expectations and hopes are destroyed."
(emphasis added) E
16. In Chandigarh Administration & Ors. v. Rajni Vali &
Ots., AIR 2000 SC 634, this Court obser\led as under:
"It is a constitutional mandate that the State shall ensure
proper education to the students on whom the future of the, F .,
society depends. In line with this principle, the State has
enacted statutes and framed rules and regulations to
control/regulate establishment and running of private
·schools at different levels. The State Government provides
grant-in-aid to private schools with a view to ensure smooth G
running of the institution and to ensure that the standard
·of teaching does not suffer on account of paucity of funds.
It needs no emphasis that appointment of qualified and
H
736 SUPREME COURT REPORTS [2011] 2 S.C.R.
A efficient teachers is a sine qua non for maintaining high
standards of teaching in any educational institution."
(emphasis added)
17. In view of the above, it is evident that education is
B necessary to develop the personality of a person as a whole
and in totality as it provides the process of training and acquiring
the knowledge, skills, developing mind and character by formal
schooling. Therefore, it is necessary to maintain a high
academic standard and academic discipline along with
C academic rigour for the progress of a nation. Democracy
depends for its own survival on a high standard of vocational
and professional education. Paucity of funds cannot be a
ground for the State not to provide quality education to its future
citizens. It is for this reason that in order to maintain the
D standard of education the State Government provides grant-in-
aid to private schools to ensure the smooth running of the
institution so that the standard of teaching may not suffer for
want of funds. Article 21A has been added by amending our
Constitution with a view to facilitate the children to get proper
E and good quality education. However, the quality of education
would depend on various factors but the most relevant of them
is excellence of teaching staff. In view thereof, quality of
teaching staff cannot be compromised. The selection of the
most suitable persons is essential in order to maintain
F excellence and the standard of teaching in the institution. It is
not permissible for the State that while controlling the education
it may impinge the standard of education. It is, in fact, for this
reason that norms of admission in institutions have to be
adhered to strictly. Admissions in mid academic sessions are
G not permitted to maintain the excellence of education.
APPOINTMENT/EMPLOYMENT WITHOUT
ADVERTISEMENT:
18. At one time this Court had been of the view that calling
H the names from Employment Exchange would curb to certain
STATE OF ORISSA & ANR. v. MAMATA MOHANTY 737
[DR. S.S. CHAUHAN, J.]
extent the menace of nepotism and corruption in public A
employment. But, later on, came to the conclusion that some
appropriate method consistent with the requirements of Article
16 should be followed. In other words there must be a notice
published in the appropriate manner calling for applications and
all those who apply in response thereto should be considered B
fairly. Even if the names of candidates are requisitioned from
Employment Exchange, in addition thereto it is mandatory on
the part of the employer to invite applications from all eligible
candidates from the open market by advertising the vacancies
in newspapers having wide circulation or by announcement in c
Radio and Television as merely calling the names from the
Employment Exchange does not meet the requirement of the
said Article of the Constitution. (Vide: Delhi Development
Horticulture Employees' Union v. Delhi Administration, Delhi
& Ors., AIR 1992 SC 789; State of Haryana & Ors. v. Piara 0
Singh & Ors., AIR 1992 SC 2130; Excise Superintendent
Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara
Rao & Ors., (1996) 6 SCC 216; Arun Tewari & Ors. v. Zila
Mansavi Shikshak Sangh & Ors., AIR 1998 SC 331; Binod
Kumar Gupta & Ors. v. Ram Ashray Mahoto & Ors., AIR 2005
SC 2103; National Fertilizers Ltd. & Ors. v. Somvir Singh, AIR E
2006 SC 2319; Telecom District Manager & Ors. v. Keshab
Deb, (2008) 8 SCC 402; State of Bihar v. Upendra Narayan
Singh & Ors., (2009) 5 SCC 65; and State of Madhya Pradesh
& Anr. v. Mohd. Ibrahim, (2009) 15 SCC 214).
F
19. Therefore, it is a settled legal proposition that no ·
- person can be appointed even on a temporary or ad hoc basis
without inviting applications from all eligible candidates. If any
appointment is made by merely inviting names from the
1
Employment Exch ange or putting a note on the Notice Board G
etc. that will not meet the requirement of Articles 14 and 16 of
the Constitution. Such a course violates the mandates of
Articles 14 and 16 of the Constitution of India as it deprives
the candidates who are eligible for the post, from being
considered. A person employed in violation of these provisions H
738 SUPREME COURT REPORTS (2011] 2 S.C.R
A is not entitled to any relief including salary. For a valid and legal
appointment mandatory compliance of the said Constitutional
requirement is to be fulfilled. The equality clause enshrined in
Article 16 requires that every such appointment be made by
an open advertisement as to enable all eligible persons to
B compete on merit.
ORDER BAD IN INCEPTION:
20. It is a settled legal proposition that if an order is bad
in its inception, it does not get sanctified at a later stage. A
C subsequent action/development cannot validate an action which
was not lawful at its inception, for the reason that the illegality
strikes at the root of the order. It would be beyond the
competence of any authority to validate such an order. It would
be ironic to permit a person to rely upon a law, in violation of
o which he has obtained the benefits. If an order at the initial
stage is bad in law, then all further proceedings consequent
thereto will be non est and have to be necessarily set aside. A
right in law exists only and only when it has a lawful origin. (vide:
Upen Chandra Gogoi v. State of Assam & Ors., AIR 1998 SC
E 1289; Mangat Prasad Tamoli (Dead) by L.Rs. v.
Narvadeshwar Mishra (Dead) by L.Rs. & Ors. , AIR 2005
SC1964; and Ritesh Tiwari & Anr. v. State of U.P. & Ors., AIR
2010 SC 3823).
The concept of adverse possession of lien on post or
F holding over are not applicable in service jurisprudence.
Therefore, continuation of a person wrongly appointed on post
does not create any right in his favour. (Vide Dr. M.S. Patil v.
Gutbarga University & Ors., AIR 2010 SC 3783).
G ELIGIBILITY LACKING:
21. In Dr. Prit Singh v. S.K. Mangat & Ors., 1993 Supp
(1) sec 714, this Court examined the case of a person who
did not possess the requisite percentage of marks as per the
statutory requirement and held that he cannot hold the post
H observing:
STATE OF ORISSA & ANR. v. MAMATA MOHANTY 739
[DR. B.S. CHAUHAN, J.]
"...... It need not be pointed out that the sole object of · A
prescribing qualification that the candidate must have a
consistently good academic record with first or high
second class Master's Degree for appointment to-the post
of a Principal, is to select a most suitable person in order
to maintain excellence and standard of teaching in the B
institution apart from administration ..... The appellant had
not secured even second class marks in his Master of Arts
Examination whereas the requirement was first or high
second class (55%). The irresistible conclusion is that on
the relevant date the appellant did not possess the C
requisite qualifications ........ On the date of the
appointment the appellant did not possess the requisite
qualifications and as such his appointment had to be
quashed."
(emphasis added) D
22. In Pramod Kumar v. U.P. Secondary Education
Services Commission & Ors., AIR 29£18 SC 1817, this Court
examined the issue as to whether a person lacking eligibility
can be appointed and if so, whether such irregularity/illegality E
can be cured/condoned. After considering the provisions of the
U.P. Secondary Education Services Commission Rules, 1983
- and Ll.P. Intermediate Education Act, 1921, this Court came
to a conclusion that lacking eligibility as per the rules/
advertisement cannot be cured at any stage and making
F
appointment of such a person tantamounts to an illegality and
not an irregularity, thus cannot be cured. A person lacking the
eligibility cannot approach the court for the reason that he does
not have a right which can be enforced through court.
This Court further held as under: G
"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
H
740 SUPREME COURT REPORTS [2011) 2 S.C.R.
A which is contrary to the statute/statutory rules would be void
in law. An illegality cannot be regularised, 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.
B v. Somvir Singh, (2006) 5 SCC 493; and Post Master
General, Kolkata v. Tutu Das (Dutta), (2007) 5 SCC 317)".
RELAXATION:
23. In Dr. J.P. Kulshrestha & Ors. v. Chancel/or,
C Allahabad University & Ors., AIR 1980 SC 2141, issue of
relaxation of eligibility came for consideration before this Court
wherein it was held as under:
"..........We regretfully but respectfully disagree with the
Division Bench and uphold the sense of high second class
D
attributed by the learned single Judge. The midline takes
us to 54% and although it is unpalatable to be mechanical
and mathematical, we have to hold that those who have
not secured above 54% marks cannot claim to. have
obtained a high second class and are ineligible .......We
E have earlier held that the power to relax, as the
Ordinance now runs, in so far as high second class is
concerned, does not exist. Inevitably, the appointments of
the 3 respondents violate the Ordinance and are, therefore,
illegal."
F
(emphasis added)
24. In Rekha Chaturvedi v. University of Rajasthan & Ors.,
1993 Supp (3) SCC 168, this Court again dealt with the power
of relaxation of minimum qualifications as the statutory
G provisions applicable therein provided for relaxation, but to what
extent and under what circumstances, such power could be
exercised was not provided therein. Thus, this Court issued the
following directions:
H
STATE OF ORISSA & ANR. v. MAMATA MOHANTY 741
[DR. B.S. CHAUHAN, J.]
"A. The University must note that the qualifications it A
advertises for the posts should not be at variance with
those prescribed by its Ordinance/Statutes.
B. The candidates selected must be qualified as on the
last date for making applications for the posts in question 8
or on the date to be specifically mentioned in the
advertisement/notification for the purpose.
C. When the University or its Selection Committee relaxes
the minimum required qualifications, unless it is
specifically stated in the advertisement/notification both C
that the qualifications will be relaxed and also the conditions
on which they will be relaxed, the relaxation will be illegal.
D. The University/Selection Committee must mention in its
proceedings of selection the reasons for making o
relaxations, if any, in respect of each of the candidates in
whose favour relaxation is made. ~
E. The minutes of the meetings of the Selection
Committee should be preserved for a sufficiently long time,
and if the selection process is challenged until the E
challenge is finally disposed of. An adverse inference is
liable to be drawn if the minutes are destroyed or a plea
is taken that they are not available."
(emphasis added) F
25. In P.K. Ramachandra Iyer & Ors. v. Union of India &
Ors., AIR 1984 SC 541, this Court while dealing with the same
issue, held that once it is established that there is no power to
relax the essential qualifications, the entire process of selection G
of the candidate was in contravention of the established norms
prescribed by advertisement. The power to relax must be
clearly spelt out and cannot otherwise be exercised.
26. In Secretary, A.P. Public Service Commission v. 8.
Swapna & Ors., (2005) 4 SCC 154, this Court held that: H
742 SUPREME COURT REPORTS [2011] 2 S.C.R
A "Another aspect which this Cowt has highlighted is scope
for relaxation of norms ..... Once it is most satisfactorily
established that the Selection Committee did not have the
power to relax essential qualification, the entire process
of selection so far as the selected candidate is concerned
B gets vitiated."
27. This Court in Kendriya Vidyalaya Sangathan & Ors.
v. Saja/ Kumar Roy & Ors., (2006) 8 SCC 671, held:
"The appointing authorities are required to apply their
C mind while exercising their discretionary jurisdiction to
relax the age-limits .... The requirements to comply with the
rules, it is trite, were required to be complied with fairly and
reasonably. They were bound by the rules. The
discretionary jurisdiction could be exercised for relaxation
D of age provided for in the rules and within the four corners
thereof."
(emphasis added)
28. In Food Corporation of India & Ors. v. Bhanu Lodh &
E Ors., AIR 2005 SC 2775, this Court held:
"Even assuming that there is a power of relaxation under
the Regulations ....... the power of relaxation cannot be
exercised in such a manner that it completely distorts the
F Regulations. The power of relaxation is intended to be
used in marginal cases .... We do not think that they are
intended as an "open sesame" for all and sundry. The'
wholesale go-by given to the Regulations, and the manner
in which the recruitment process was being done, was
G very much reviewable as a policy directive, in exercise of
the power of the Central Government under Section 6(2)
of the Act." '
29. In Dr. Bhanu Prasad Panda v. Chancel/or, Sambalpur
University & Ors., (2001) 8 SCC 532, one of the questions
H
STATE OF ORISSA & ANR. v. MAMATA MOHANTY 743
[DR. B.S. CHAUHAN, J.]
raised has been as to whether a person not possessing the A
required eligibility of qualification i.e. 55% marks in Master's
degree can be appointed in view of the fact that the UGC
refused to grant relaxation.
On the issue of relaxation of eligibility, the Court held as
8
und~r:
• .... the essential requirement of academic qualification of
a particular standard and grade viz. 55%, in the "relevant
subject" for which the post is advertised, cannot be
rendered redundant or violated ...... The rejection by UGC C
of the request of the Department in this case to relax the
condition relating to 55% marks at post-graduation
level. ... is to be the last word on the claim of the appellant
and there could be no further controversy raised in this
regard ... ." D
(emphasis added)
In view of th·e above, this Court held that the appointment
of the appellant therein has rightly been quashed as he did not
possess the requisite eligibility of 55% marks in Master's E
course.
30. In absence of an enabling provision for grant of
relaxation, no relaxation can be made. Even if such a power is
provided under the Statute, it cannot be exercised arbitrarily. F
(See: Union of India v. Dharam Pal & Ors., (2009) 4 SCC
170).
31. Such a power cannot be exercised treating it to be an
implied, incidental or necessary power for execution of the
statutory provisions. Even an implied power is to be exercised G
with care and caution with reasonable means to remove the
obstructions or overcome the resistance in enforcing the
statutory provisions or executing its command. Incidental and
ancillary powers cannot be used in utter disregard of the object
of the Statute. Such power can be exercised only to make such H
744 SUPREME COURT REPORTS [2011] 2 S.C.R.
A legislation effective so that the ultimate power will not become
illusory, which otherwise would be contrary to the intent of the
legislature. (vide: Matajog Dobey v. H.S. Bhari, AIR 1956 SC
44; and State of Kamataka v. Vishwabharathi House Building
Co-operative Society & Ors., (2003) 2 SCC 412).
B More so, relaxation in this manner is tantamount to
changing the selection criteria after initiation of selection
process, which is not permissible at all. Rules of the game
cannot be changed after the game is over. (Vide K. Manjusree
v. State of Andhra Pradesh & Anr., AIR 2008 SC 1470; and
C Ramesh Kumar v. High Court of Delhi & Anr., AIR 2010 SC
3714).
DELAYILACHES:
32. In the very first appeal, the respondent filed Writ Petition
0
on 11.11.2005 claiming relief under the Notification dated
. 6.10.1989 w.e.f. 1.1.1986 without furnishing any explanation for
such inordinate delay and on !aches on her part. Section 3 of
the Limitation Act 1963, makes it obligatory on the part of the
court to dismiss the Suit or appeal if made after the prescribed
1E period even though the limitation is not set up as a defence and
there is no plea to raise the issue of limitation even at appellate
stage because in some of the cases it may go to the root of
the matter. (See: Lachhmi Sewak Sahu v. Ram Rup Sahu &
Ors., AIR 1944 Privy Council 24; and Kamlesh Babu & Ors. v.
F Lajpat Raf Sharma & Ors, (2008) 12 SCC 577).
33. Needless to say that Limitation Act 1963 does not
apply in writ jurisdiction. However, the doctrine of limitation
being based on public policy, the principles enshrined therein
G are applicable and writ petitions are dismissed at initial stage
on the ground of delay and !aches. In a case like at hand,
getting a particular pay scale may give rise to a recurring cause
of action. In such an eventuality, the petition may be dismissed
on the ground of delay and !aches and the court may refuse to
H grant relief for the initial period in case of an unexplained and
STATE OF ORISSA & ANR. v. MAMATA MOHANTY ·745
[DR. S.S. CHAUHAN, J.]
inordinate delay. In the instant case, the respondent claimed A
the relief from 1.1.1986 by filing a petition on 11.11.2005 but
the High Court for some unexplained reason granted the relief
w.e.f. 1.6.1984, though even the Notification dated 6.10.1989
makes it applicable w.e.f. 1.1.1986.
B
34. This Court has consistently rejected the contention that
a petition should be considered ignoring the delay and laches
in case the petitioner approaches the Court after coming to
know of the relief granted by the Court in a similar case as the
same cannot furnish a proper explanation for delay and laches. C
A litigant cannot wake up from deep slumber and claim impetus
from the judgment in cases where some diligent person had
approached the Court within a reasonable time. (See: Mis Rup
Diamonds & Ors., v. Union of India & Ors., AIR 1989 SC 674;
State of Karn?taka & Ors. v. S.M. Kotrayya & Ors., (1996) 6
SCC 267; and Jagdish Lal & Ors. v. State of Haryana & Ors., 0
AIR 1997 SC 2366).
RELIEF NOT CLAIMED - CANNOT BE GRANTED:
35. Pleadings and particulars are required to enable the E
court to decide the rights of the parties in the trial. Thus, the
pleadings are more to help the court in narrowing the
controversy involved and to inform the parties concerned to the
question in issue, so that the parties may adduce appropriate
evidence on the said issue. It is a settled legal proposition that F
"as a rule relief not founded on the pleadings should not be
granted." Therefore, a decision of a case cannot be based on
grounds outside the pleadings of the parties. The pleadings
and issues are to ascertain the real dispute between the
parties to narrow the area of conflict and to see just where the
two sides differ. (Vide : Sri Mahant Govind Rao v. Sita Ram G
Kesho, (1898) 25 Ind. App.195; Mis. Trojan & Co. v. RM. N.N.
Nagappa Chettiar, AIR 1953 SC 235; lshwar Dutt v. Land
Acquisition Collector & Anr., AIR 2005 SC 3165; and State
of Maharashtra v. Hindustan Construction Company Ltd.,
c2010) 4 sec 518.) H
746 SUPREME COURT REPORTS [2011] 2 S.C.R
'
A ARTICLE 14:
36. It is a settled legal proposition that Article 14 is not
meant to perpetuate illegality and it does not envisage negative
equality. Thus, even if some other similarly situated persons
have been granted some benefit inadvertently or by mistake,
8
such order does not confer any legal right on the petitioner to
get the same relief. (Vide Chandigarh Administration & Anr
v. Jagjit Singh & Anr., AIR 1995 SC 705; Yogesh Kumar &
Ors. v. Government of NCT Delhi & Ors., AIR 2003 SC 1241;
C Mis Anand Buttons Ltd. etc. v. State of Haryana & Ors., AIR
2005 SC 565; K.K. Bhalla v. State of M.P. & Ors., AIR 2006
SC 898; Maharaj Krishan Bhatt & Anr. v. State of Jammu &
Kashmir & Ors., (2008) 9 SCC 24; Upendra Narayan Singh
(supra); and Union of India & Anr. v. Kartick Chandra Monda/
& Anr., AIR 2010 SC 3455).
D
This principle also applies to judicial pronouncements.
Once the court comes to the conclusion that a wrong order has
been passed, it becomes the solemn duty of the court to rectify
the mistake rather than perpetuate the same. While dealing with
E a similar issue, this Court in Hotel Balaji & Ors. v. State of A.P.
& Ors., AIR 1993 SC 1048 observed as under:
"... To perpetuate an error is no heroism. To rectify it is the
compulsion of judicial conscience. In this, we derive
comfort and strength from the wise and inspiring words of
F Justice Bronson in Pierce v. Delameter (A.M.Y. at page
18: 'a Judge ought to be wise enough to know that he is
fallible and, therefore, ever ready to learn: great and honest
enough to discard all mere pride of opinion and follow truth
wherever it may lead: and courageous enough to
G acknowledge his errors'".
(See also re: Sanjiv Datta, Dy. Secy., Ministry of Information
& Broadcasting, (1995) 3 SCC 619; Nirmal Jeet Kaur v. State
of M.P. & Anr., (2004) 7 SCC 558; and Mayuram
H Subramanian Srinivasan v. CBI, AIR 2006 SC 2449).
STATE OF ORISSA & ANR. v. MAMATA MOHANTY 747
[DR. B.S. CHAUHAN, J.]
37. We are fully alive of the object and purpose of A
according recognition and affiliation to educational institutions.
It is the educational authorities of the State which grant
recognition to a Committee of Management for opening or
running an educational institution. Affiliation is granted by the
particular University or Board for undertaking the examination B
of the students of that college for awarding degrees and .
certificates. Therefore, while gr;;rnting the recognition and
affiliation even for non-governmental and non-aided private
colleges, it is mandatory to adhere to the conditions imposed
by them, which also include the minimum eligibility for c
appointment of teaching staff. The authority at the time of
granting approval has to apply its mind to find out whether a
person possessing the minimum eligibility has been appointed.
In the instant case, it appears to be a clear cut case of
arbitrariness which cannot be approved.
0
ARBITRARINESS:
38. The rule of law inhibits arbitrary action and also makes
it liable to be invalidated. Every action of the State or its
instrumentalities should not only be fair, legitimate and above- E
board but should be without any affection or aversion. It should
neither be suggestive of discrimination nor even give an
impression of bias, favouritism and nepotism. Procedural
fairness is an implied mandatory requirement to protect against
arbitrary action where Statute confers wide power coupled with F
wide discretion on an authority. If the procedure adopted by an
authority offends the fundamental fairness or established ethos
or shocks the conscience, the order stands vitiated. The
decision making process remains bad. (Vide Haji T.M. Hassan
Rawther v. Kera/a Financial Corporation, AIR 1988 SC 157; G
Dr. Rash Lal Yadav v. State of Bihar & Ors., (1994) 5 SCC
267; and Tata Cellular v. Union of India, (1994) 6 SCC 651).
39. In the State of Andhra Pradesh & Anr. v. Na/la Raja
Reddy& Ors., AIR 1967 SC 1458, a Constitution Bench of this
Court observed as under: H
748 SUPREME COURT REPORTS [2011) 2 S.C.R.
A "Official arbitrariness is more subversive of doctrine of
equality than the statutory discrimination. In spite of
statutory discrimination, one knows where he stands but
the wand of official arbitrariness can be waived in all
directions indiscriminately."
B
40. Similarly, in S.G. Jaisinghani v. Union of India & Ors.,
AIR 1967 SC 1427, a Constitution Bench of this Court observed
as under:
• .... absence of arbitrary power is the first essence of the
c rule of law, upon which our whole Constitutional system is
based ..... Rule of law, from this point of view, means that
the decision should be made by the application of known
principle and rules and in general such decision should be
predictable and the citizen should know where he is, if a
D decision is taken without any principle or without any rule,
it is unpredictable and such a decision is antithesis to the
decision taken in accordance with the rule of law."
(See also: Commissioner of Police, Bombay v.
E Gordhandas Bhanji, AIR 1952 SC 16).
41. It is a matter of common experience that a large
number of orders/letters/circulars, issued by the State/statutory
authorities, are filed in court for placing reliance and acting upon
it. However, some of them are definitely found to be not in
F conformity with law. There may be certain such orders/circulars
which are violative of the mandatory provisions of the
Constitution of India. While dealing with such a situation, this
Court in Ram Ganesh Tripathi & Ors. v. State of U.P. & Ors.,
AIR 1997 SC 1446 came across with an illegal order passed
G by the statutory authority violating the provisions of Articles 14
and 16 of the Constitution. This Court simply brushed aside the
same without placing any reliance on it observing as under:
"The said order was not challenged in the writ petition as
it had not come to the notice of the appellants. It has been
H
STATE OF ORISSA & ANR. v. MAMATA MOHANTY 749
[DR. B.S. CHAUHAN, J.]
filed in this Court along with the counter affidavit.. ... This A
order is also deserved to be quashed as it is not
consistent with the statutory rules. It appears to have been
passed by the Government to oblige the respondents ...... "
(emphasis added) 8
42. The whole exercise done by the State authorities
suffers from the vice of arbitrariness and thus is violative of
Article 14 of the Constitution. Therefore, it cannot be given
effect to.
c
PER IN CURIAM - Doctrine:
43. "lncuria" literally means "carelessness". In practice per
incuriam is taken to mean per ignoratium. The Courts have
developed' this principle in relaxation of the rule of stare
0
decisis. Thus the "quotable in law", is avoided and ignored if it
is rendered, in ignoratium of a Statute or other binding authority.
In Mamleshwar Prasad & Anr. v. Kanahaiya Lal (Dead)
- by Lrs., AIR 1975 SC 907, this Court held :
E
" ...... where by obvious inadvertence or oversight a
judgment fails to notice a plain statutory provision or
obligatory authority running counter to the reasoning and
result reached, it may not have the sway of binding
precedents. It should be a glaring case, an obtrusive F
omission."
(emphasis added)
44. In _State of Orissa & Anr. v. Damodar Nayak & Anr.,
AIR 1997 SC 2071, question arose that in case the teacher at · G
the time of appointment, did not possess the requisite eligibility,
i.e., qualifications, whether he could claim any benefit under the .
grant-in-aid Scheme. Respondent-teacher therein had secured · ·
53.9 % marks _and required eligibility provided for 54%. This
Court held that undoubtedly 53.9% marks were very close to H
750 SUPREME COURT REPORTS [2011) 2 S.C.R.
A required marks i.e. 54%, but the teacher so appointed did not
possess the eligibility. The court took notice of the fact that he
was appointed in 1978 but acquired further qualification on
10.7.1987, and held:
"Admittedly, since the first respondent on the date of
B
his appointment was not possessing the requisite
qualification and acquired the same only on 10. 7.1987 he
will be eligible to the benefit of the grant-in-aid w.e.f.
1.8.1987 and onwards"
c 45. This Court while hearing the SLP (C) Nos. 14206-
14209 of 2001, State of Orissa & Anr. v. Ka/idas Mahapatra
& Ors., on 11.3.2002 observed as under:
"Heard.
D
The so-called contention of deficiency in the qualification
being much earlier in the circular of the Government dated
06.11.1990, we see no infirmity with the impugned
judgment requiring our interference. The Special Leave
Petitions are dismissed accordingly."
E
This Court further dismissed the Review Petition Nos.
1529-1532 of 2002 against the said judgment and order on
28.8.2002.
46. From the aforesaid discussion, the following picture
F
emerges:
(i) The procedure prescribed under the Rules, 1974 has
not been followed in all the cases while making the
appointment of the respondents/teachers at initial stage.
Some of the persons had admittedly been appointed
merely by putting some note on the Notice Board of the
College. Some of these teachers did not face the interview
test before the Selection Board. Once an order of
appointment itself had been bad at the time of initial
H appointment, it cannot be sanctified at a later stage.
STATE OF ORISSA & ANR. v. MAMATA MOHANTY 751
[DR. B.S. CHAUHAN, J.]
(ii) At the relevant time of appointment of the respondents/ A
teachers there has been a requirement of possessing
good second class i.e. 54% marks in Master's Course
and none of the said respondents had secured the said
percentage.
B
(iii) Their appointments had been approved after a long
long time. In some cases after 10-12 years of their initial
appointment by the statutory authority i.e. Director of Higher
Education.
(iv) A candidate becomes eligible to apply for a post only C
if he fulfils the required minimum benchmark fixed by the
rules/advertisement. Thus, none of the respondents could
even submit the application what to talk of the
appointments.
D
(v) The so-called relaxation by the Utkal University was
accorded by passing a routine order applicable to large
number of colleges, that too after a lapse of long period
i.e. about a decade.
(vi) Fixation of eligibility falls within the exclusive domain E
of the executive and once it has been fixed by the State
authorities under the Rules 1974, the question of
according relaxation by Utkal University could not arise
and, therefore, the order of condonation etc. is nullity.
F
(vii) The relaxation has been granted only by Utkal
University though Rule 2(i) of Rules 1974 defined
'University' means Utkal University, Berhampur University,
Sambalpur University and Sri Jagannath Sanskrit Vishwa
Vidyalaya. G
(viii) Granting relaxation at this stage amounts to change
of criteria after issuance of advertisement, which is
impermissible in law. More so, it is violative of fundamental
rights enshrined under Articles 14 and 16 of the
H
752 SUPREME COURT REPORTS [2011] 2 S.C.R.
A Constitution of the similarly situated persons, who did not
apply considering themselves to be ineligible for want of
required marks.
(ix) The exercise of condonation of deficiency had not been
exercised by any University other than Utkal University.
B
(x) The post of the teachers i.e. respondents is transferable
to any college affiliated to any other University under the
Rules 1979.
c (xi) The power to grant relaxation in eligibility had not been
conferred upon any authority, either the University or the
State. In absence thereof, such power could not have been
exercised.
(xii) This Court in Damodar Nayak (supra) has
D categorically held that a person cannot get the benefit of
grant-in-aid unless he completes the deficiency of
educational qualification. Further, this Court in Dr. Bhanu
Prasad Panda (supra) upheld the termination of services
of the appellant therein for not possessing 55% marks in
E Master Course.
(xiii) The aforesaid two judgments in Damodar Nayak
(supra) and Dr. Bhanu Prasad Panda (supra), could not
be brought to the notice of either the High Court or this
F Court while dealing with' the issue. Special leave petition
in the case of Kalidas Mohapatra & Ors. (supra) has been
dealt with without considering the requirement of law merely
making the reference to Circular dated 6.11.1990, which
was not the first document ever issued in respect of
eligibility. Thus, all the judgments and orders passed by
G
the High Court as well as by this Court cited and relied
upon by the respondents are held to be not of a binding
nature. (Per in curiam)
(xiv) In case a person cannot get the benefit of grant-in-
H
STATE OF ORISSA & ANR. v. MAMATA MOHANTY 753
[DR. B.S. CHAUHAN, J.]
aid scheme unless he completes the deficiency of A
educational qualification, question of grant of UGC pay
scale does not arise.
(xv) The cases had been entertained and relief had been
granted by the High Court without considering the issue B
of delay and laches merely placing reliance upon earlier
judgments obtained by diligent persons approaching the
courts within a reasonable time.
(xvi) The authority passed illegal orders in contravention
of the constitutional provisions arbitrarily without any C
explanation whatsoever polluting the entire education
system of the State, ignoring the purpose of grant-in-aid
scheme itself that it has been so provided to maintain the
standard of education.
(xvii) The High Court granted relief in some cases which D
had not even been asked for as in some cases the UGC
pay scale had been granted with effect from 1.6.1984, i.e.,
the date prior to 1.1.1986 though the same relief could not
have been granted. Thus, it clearly makes out a case of
deciding a case without any application of mind. E
(xviii) In some cases the UGC pay scale has been granted
by the High Court prior to the date of according the benefit
of grant-in-aid scheme to the concerned teachers which
was not permissible in law in view of the law laid down by F
this Court in Damodar Nayak (supra).
(xix) The grievance of the respondents that not upholding
the orders passed by the High Court in their favour would
amount to a hostile discrimination is not worth acceptance
for the reason that Article 14 of the Constitution envisages G
only positive equality.
(xx) Concept of adverse possession of lien on post or
holding over are inapplicable in service jurisprudence.
H
754 SUPREME COURT REPORTS (2011) 2 S.C.R.
A (xxi) The submission on behalf of the respondents that
Government orders/circulars/letters have been complied
with, therefore, no interference is called for, is
preposterous for the simple reason that such orders/
circulars/letters being violative of statutory provisions and
B constitutional mandate are just to be ignored in terms of
the judgment of this Court in Ram Ganesh Tripathi (supra).
47. In view of the above, it stands crystal clear that a
teacher who had been appointed without possessing the
C requisite qualification at initial stage cannot get the benefit of
grant-in-aid scheme unless he acquires the additional
qualification and, therefore, question of grant of UGC pay scale
would not arise in any circumstance unless such teacher
acquires the additional qualification making him eligible for the
benefit of grant-in-aid scheme. The cumulative effect therefore
D comes to that such teacher will not be entitled to claim the UGC
pay scale unless he acquires the higher qualification i.e. M.Phil/
Ph.D.
48. In the facts and circumstances of the case, we feel that
E terminating the services of those who had been appointed
illegally and/or withdrawing the benefits of grant-in-aid scheme
of those who had not completed the deficiency in eligibility/
educational qualification or withdrawing the benefit thereof from
those who had been granted from the date prior to completing
F the deficiency, may not be desirable as a long period has
elapsed. So far as the grant of UGC pay scale is concerned, it
cannot be granted prior to the date of acquisition of higher
qualification. In view of the above, the impugned judgment/order
cannot be sustained in the eyes of law.
G 49. The full particulars of the respondent-teachers are not
before us as in some cases there had been claim and counter
claim of possessing the requisite marks i.e. 54% in Master's
Course, as in Civil Appeal No. 1253 of 2011, State of Orissa
& Anr. v. Lokanath Mishra & Ors. Thus, we pass the following
H directions:
STATE OF ORISSA & ANR. v. MAMATA MOHANTY 755
[DR. B.S. CHAUHAN, J.]
(i) In case of dispute regarding possessing of 54% marks, A
the authorities, Secretary of Higher Education/Director of
Higher Education may examine the factual position and
decide the case of individual teachers in accordance with
law laid down in this case;
B
(ii) If a person did not possess the requisit~ qualification
on the date of appointment and was not entitled for grant-
in-aid scheme unless he completes the deficiency, his case .
would be considered from the date of completing the .
deficiency for grant of UGC pay scale. However, in no
case, the UGC pay scale can be granted prior to the date C
of according the benefit of the grant-in-aid scheme, i.e. by
acquiring the degree of M.Phil/Ph.D;
(iii) The aforesaid exercise shall be completed within a
period of four months from today; and D
(iv) The arrears of pay, if any, shall be paid to the teacher
concerned within a period of four months thereafter.
50. In view of the above, all appeals stand disposed of.
No order as to costs. E
R.P. Appeals dispos~d of.
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