Supreme Court of India
STATE OF PUNJAB AND OTHERSversusANITA AND ORS.
- Citation
- 2014 INSC 674
- Decided
- 24 September 2014
- Disposal
- Appeal(s) allowed
- Bench
- S KHEHAR
Holding
Appointments of the private respondents as JBT/ETT teachers were invalid because they did not possess the statutory qualification prescribed under the 1981 Rules, and the Government instructions permitting higher qualifications were a nullity.
Summary
The Management of Doaba Arya Senior Secondary School advertised six JBT/ETT teacher posts but failed to require the statutory qualification of matriculation plus two years JBT training prescribed under the Punjab Privately Managed Recognised Schools Employees (Security of Service) Rules, 1981. The private respondents were selected and appointed without State Government approval and later sought confirmation of their appointments and payment of wages. The District Education Officer rejected their claim, holding the appointments violated the 1981 Rules, a decision upheld by the High Court. On appeal, the Supreme Court examined the statutory qualification requirements, held that higher qualifications such as B.Ed. or postgraduate degrees could not substitute the specific JBT/ETT qualification, and declared the 1995 Government instructions allowing such substitutions void. Consequently, the Court set aside the High Court order, affirmed the State Government’s refusal to approve the appointments, and directed the school management to pay any outstanding emoluments to the respondents.
Issues considered
- Whether the advertisement and selection process complied with the qualification requirements under the Punjab Privately Managed Recognised Schools Employees (Security of Service) Rules, 1981.
- Whether candidates lacking the specific JBT/ETT qualification can be appointed based on higher qualifications or the 1995 Government instructions.
- Whether the State Government’s refusal to approve the appointments was legally valid.
- Whether the High Court’s order upholding the appointments was erroneous.
Legislation cited
Subjects
service lawappointmentqualification requirementstatutory rulesJBT/ETTPunjab Privately Managed Schoolsgovernment instructionsnullityeligibility
Judgment
[2014] 14 S.C.R. 819
STATE OF PUNJAB AND OTHERS A
v.
ANITAAND ORS.
(Civil Appeal Nos. 7983-7986 of 2009)
B
SEPTEMBER 24, 2014
[JAGDISH SINGH KHEHAR AND ARLIN MISHRA, JJ.]
Service Law - Selection/Appointment- Selection and
appointment to the post of JBTIETT teachers - State
Government did not accord approval on the ground that the C
appointment was in violation of statutory rules as the
candidate did not possess the Gualification pr<- scribed under
the rules - Propriety of the order passed by State Government
- Held: Determination by the State Government was correct
- It is imperative for the candidates to possess the statutorily D
prescribed qualification - Punjab Privately Managed
Recognized Schools Employees (Security of Service) Rules
, 1981 - rr. 6 & 7 and Appendix.
Allowing the appeals, the Court
E
HELD: 1. It is imperative for candidates to possess
the statutory qualification prescribed for appointment to
the posts, to which they are seeking appointment.
Applications were not invited from candidates
possessing the qualification depicted in the appendix F
to the 1981..Rules, pertaining to the posts of JBTIETT
teachers. None of the privatE• respondents possess the
qualification of JBT/ETT, and as such, none of them can
be stated to be possessed o·f qualifications statutorily
prescribed and delineated in the appendix of the 1981 G
Rules. None of the private respondents was therefore
per se eligible for appointment Therefore, no infirmity can
be found in the determination at the hands of the State
Government. [Paras 8 and 9][825-F-G; 826-B-D]
H
819
820 SUPREME COURT REPORTS [2014] 14 S.C.R.
A P M. Latha and another v. State of Kera/a and
others (2003) 3 sec 541 : (2003) 2 SCR 653 ;
Yogesh Kumar and others v. Government of NCT
of Delhi 6 and others (2003) 3 SCC 548 : [2003)
2 SCR 662 - relied on.
B 2. The private respondents do not satisfy the pre-
condition of valid appointment expressed therein,
inasmuch as, it was imperative for the Selection
Committee, in the first instance, to consider only those
candidates who possessed the qualification of JBT/ETT,
C and thereupon, posts that remained unfilled could be
filled up with persons possessing higher qualifications,
i.e., graduate/post graduate qualifications along with
B.Ed .. That. was not the procedure which came to be
adopted in the p~esent controversy. Therefore per se,
D no benefit can flow to the private respondents, from the
government instruction. Moreover, para 6 of the
Government Instructions are in clear violation of the
statutory process of selection and appointment
postulated under the 1981 Rules. Government
E Instructions in violation of the statutory rules, are a nullity
in law. (Para 19)(831-A-EJ
3. The private respondents came to be appointed
by the Management of the School in violation of the 1981
F Rules. No fault whatsoever lies with the private
respondents. The Management had required the private
respondents to discharge their duties, without the prior
approval of the State Government. The Management
should therefore bearthe responsibility of shouldering
G the emoluments payable to the private respondents.
[Para 21][832-B-D]
Jyoti K.K. and others v. Kera/a Public Service
Commission and others (2010) 15 SCC 596 -
distinguished.
H
STATE OF PUNJAB AND OTHERS v.ANITAAND ORS. 821
CASE LAW REFERENCE A
[2003] 2 SCR 653 relied on Para 9
[2003] 2 SCR 662 relied on Para 9
(2010) 15 SCC 596 distinguished Para 10
B
CIVILAPPELLATE JURISDICTION: Civil Appeal Nos.
7983-7986 of 2009.
From the Judgment and Order dated 02707-2007 of the
High Court of Punjab and Haryana at Chandigarh in CWP Nos.
15599 of 2006 (0 & M), 2344, 9791 and 16235 of 2006. c
With
Civil Appeal No. 7970-7971of2009.
Sanchar Anand, AAG, Piyush Hans (For Kuldip Singh
and Ajay Pal~. Advs. for the Appellants. D
AV. Palli, Anupam, Raina (For Mrs. Rekha Pa Iii), Ms. S.
Janani, Deepak Goel, Advs. for the Respondents.
The Judgment of the Court was delivered by
J. S. KHEHAR, J. E
1. The Management of the· Doaba Arya Senior
Secondary School, Nawanshahr, issued an advertisement in
the Indian Express dated 25.05.2002, inviting applications for
six vacant posts of J BT/ETI teachers. Since the controversy, F
being adjudiccted upon, is substantially to be determined on
the basis of the contents of the advertisement, the above
advertisement dated 25.05.2002 is being extracted hereunder:
"Doaba Arya Senior Secondary School, Nawanshahr
Wanted following dedicated, talented, trained and G
experienced teachers against six vacant JBT/ETT aided
posts preferably one M.A. English, one M.Sc. Chem.,
One M.Sc. Bio, M.Com., one M.Sc. Maths, one M.A. Eco
H
822 SUPREME COURT REPORTS [2014] 14 S.C.R.
A . and one Watchman.Apply Principal afresh within ten days
alongwith testimonials. Reservation exists as per Govt.
rules.
Sd/-
Principal, DoabaArya Sr. Sec. School,
B
Nawanshahr.
2. The private respondents were selected against the
six advertised posts, by the Managing Committee of the above
school. Despite their selection and consequential appointment,
C the State Government did not accord its approval. It is in the
aforesaid circumstances, thatthe private respondents, i.e., the
selected JBT/ETT teachers issue a notice dated 1.2.2004,
wherein they sought approval of the State Government, as also,
wages for the period they had been discharging their duties .
.D Since, they did not receive any response to the legal notice
dated 1.2.2004, the private respondents approached the High
Court of Punjab and Haryana at Chandigarh (hereinafter
referred to as the 'High Court') by filing Civil Writ Petition
No.6789 of 2004. Rather than examining the merits of the
E controversy, the High Court by its order dated 27.04.2004,
required the ·State Government to take a decision on the legal
notice, issued by the private respondents. It is therefore, that
the District Education Officer, Nawanshahr (hereinafter
referred to as the 'DEO') passed an order dated 04.4.2005,
F declining the claim of the private respondents. A perusal of
the speaking order passed by the DEO, inter alia, reveals,
that the private respondents had been appointed in violation
of the statutory rules regulating appointments to privately
managed recognised schools. It was also indicated in the
G order dated 04.4.2005, that the selection process was not in
consonance with the statutory rules.
3. The order passed by the DEO dated 04.4.2005 was
assailed by the private respondents before the High Court by
filing Civil Writ Petition No. 15599 of 2006. The same came
H to be allowed by the impugned order dated 2.7.2007. A perusal
STATE OF PUNJAB AND OTHERS v. ANITAAND ORS. 823
[J. S. KHEHAR, J.)
of the impugned order reveals, that the High Court emphatically A
placed reliance on an earlier litigation in respect of the same
selection process, wherein a Division Bench of the High Court,
while disposing of civil writ petition No. 13979 of 2002 (by
order dated 16.2 .2004), had found the petitioner therein not
possessing superior qualifications to the private respondent B
no.4, whose selection was sought to be assailed. The High
Court had also, while disposing of civil writ petition no.13979
of 2002, rejected the contention advanced at the hands of the
petitioner therein, that the process of selection was vitiated on
account of bias. C
4. Since the order passed in civil writ petition no .. 13979
of 2002 was affirmed by this Court, the special leave petition
filed against the said order before this Court was dismissed.
The High Court inferred from the above dismissal, that the
selection process had been approved by this Court. D
5. We will first endeavour to deal with the basis adopted
by the High Court in affirming the selection process of the
private respondents, consequent whereof they came to be
appointed as JBT/ETT teachers. It would be relevant to E
mention, that the qualifications prescribed forthe advertised
JBT/ETT posts· were not at all the subject matter of
consideration in writ petition no. 13979 of 2002, nor was the
selection process a matter for consideration. In the above
view, it was not proper for the High Court to approve the F
selection process, oy which the six private respondents came
to be appointed as JBT/ETT teachers. Moreover, the issues
which are now raised were not examined by the High Court, or
by this Court, during the previous litigation. We are, therefore,
of the considered view, that the High Court should have
addressed the pointed questions raised before it, while G
examining the legality of the order passed by the DEO dated
04.4.2005. Unfortunately, the High Court did not deal with any
of the reasons recorded by the DEO (while rejecting the claim
raised by the private respondents).
H
'
824 SUPREME COURT REPORTS [2014] 14 S.C.R.
A 6. We shall now deal With the pointed issues recorded
by the DEO in his order dated 04.4.2005. It is not a matter of
dispute, that insofar as the selection and appointments to
privately managed recognised schools in the State of Punjab
is concerned, the same are regulated by the Punjab Privately
8 Managed Recognised Schools Employees (Security of
Service) Rules, 1981 (hereinafter referred to as the '1981
Rules'). Rule 6 of the aforesaid Rules lays down the ·
qualifications for different posts, and Rule 7 the manner/method
of appointment. Rules 6 and 7 of the 1981 Rules are
c reproduced hereunder:
"6. Qualification - (1) No person shall be appointed to
an aided post, unless he possess the qualifications and
experience as specified against that post in the Appendix
to these rules.
D
(2) Unless otherwise specified in the Appendix to these
rules, an employee who has not attained the knowledge
of Hindi and Punjabi language of matriculation standard
or its equivalent, shall have to acquire the same within a
period of two years from the date of his appointment of
E
the commencement of these rules, whichever is earlier,
failing which he shall not earn his first grade increments
till he acquires such knowledge when the increments shall
_be released retrospectively :
F Provided that he shall not be entitled to get arrears of the
released grade increments for the period during which
he could not acquire the aforesaid knowledge.
7. Appointing authority and method of appointment-All
appointments to the aided posts shall be made by the
G managing committee in the following manner:
(i) Appointing authority shall advertise in both English
and vernacular daily newspapers in the State, vacancy
or vacancies to be filled in by giving full particulars thereof
including the requisite qualifications, number of vacancies
H
STATE OF PUNJAB AND OTHERS v. ANITAAND ORS. 825
[J. S. KHEHAR, J.]
to be filled in and the last date by which the applications A
may be submitted;
(ii) The recommendations for appointment of the
candidates shall be made by a sub-committee consisting
five members of the managing committee.
B
(2) The members of the sub-committee shall be
appointed by the managing committee."
7. A perusal of Rule 6 reveals, that qualifications for posts
under the purview of the 1981 Rules have been expressed in
the appendix to the 1981 Rules. Insofar as the post of JBT C
teacher is concerned, the same figures at serial no.10 of the
appendix, wherein the prescribed qualifications are as under:
APPENDIX
(See Rule6)
D
Secial Designaticn of El:>st Q,a,ificatiais an e>pei.en:ss
No.
. - - -------- - - - - - ~ ~~-
1 2 3
10. J.B.T. Teacmr (i) Martic with bD years E
:in J.B.T. Tra:inin;J; an:i
(ii) ll"nad.eclg> of Blnja::ii.
H:in:li laIJil""3" of MatricJJ a~- ""'
StaalaJ:d or its Eq.lival.ent.
F
8. Under the 1981 Rules, for the post of JBT teachers,
the prescribed qualification is, matriculation with two years
course in JBT training. In addition thereto, a candidate should
have knowledge of Punjabi and Hindi language of matriculation
standard, or its equivalent. G
9. The issue Which requires our consideration is, whether
the advertisement issued by the Doaba Arya Senior
Secondary School, Nawanshahr, had invited applications by .
truly reflecting the prescribed qualifications, and also whether,
the private respondents possess the qualification prescribed H
826 SUPREME COURT REPORTS [2014] 14 S.C.R.
A for the post of JBT/ETT teachers,. which was advertised on
25.2.2002.
10. While examining the advertisement, which has been
extracted hereinabove, we are satisfied that applications were
not invited from candidates possessing the qualification
B depicted in the appendix to the 1981 Rules, pertaining to the
posts of J!3T/ETT teachers. It is also apparent, that none of
the private r€spondents possess the qualification of JBT/ETT,
and as such, none of them can be stated to be possessed of
qualifications statutorily prescribed and delineated in the
C appendix of the 1981 Rules. None of the private respondents
was therefore per se eligible for appointment to the posts of
JBT/ETT teachers. This was one of the pointed reasons why
the State Government did not grant its approval to the selection
and appointment of the private respondents. In our considered
D view,·no infirmity can be found in the aforesaid determination
at the hands of the State Government. ·
. ' .
11. Insofar as the issue in hand is concerned, reference
may be made to the decision rendered by this Court in P.M.
E Latha and another vs, State of Kerala and others (2003) 3 sec
541, wherein this Court held as under:
We find absolutely no force in the argument advances
by the respondents that BEd qualification is a higher
qualification than TTC and therefore the BEd candidates
F · should be held to be eligible to compete for the post. On
·behalf of the appellants, it is pointed out before us that
Trained Teacher's Certificate is given to teachers
specially trained to teach small children in primary
classes whereas for BEd degree, the training imparted
G is to teach students of classes above primary. BEd
degree-holders, therefore. cannot necessarily be held to
be holding qualification suitable for appointment as
teachers in primary schools. Whethedor a particular post,
the source of recruitment should be from the candidates
H with TTC qualification or BEd qualification, is a matter of
STATE OF PUNJAB AND OTHERS v.ANITAAND ORS. 827
[J. S. KHEHAR, J.]
recruitment policy. We find sufficient logic and justification A
in the State prescribing qualification for the post of
primary teachers as only TTC and not BEd. Whether BEd
qualification can also be prescribed for primary teachers
is a question to be considered by the authorities
concerned bu.t we cannot consider BEd candidates, for B
the present vacancies advertised, as eligible."
(emphasis is ours)
12. Reference may also be made to the decision
rendered by this Court in Yogesh Kumar and others vs. c
Government of NCT of Delhi and others (2003) 3 SCC 548,
wherein this Court held as under:
"The Division Bench of the Delhi High Court in the
impugned judgment has dealt with the above two
arguments in great detail. In our considered opinion, it D
has rightly come to the conclusion that BEd qualification,
although a well-recognised qualification in the field of
teaching and education being not prescribed in the
advertisement, only some of the BEd candidates who
took a chance to apply for the post cannot be given entry E
in the field of selection. We also find that the High Court
rightly came to the conclusion that teacher training
imparted to teachers for BEd course equips them for
teaching higher classes. A specialized training given to ·
teachers for teaching small children at primary level F
cannot be compared with training given for awarding BEd
degree. Merely because primary teachers can also earn
promotion to the post of teachers to teach higher classes ·
and for which BEd is the prescribed qualification, it cannot
be held that BEd is a higher qualification than TTC. G
Looking to the different nature ofTTC qualification. the
High Court rightly held that it is not comparable with BEd
degree qualification and the latter cannot be treated as
higher qualification to the former."
(emphasis is ours) H
828 SUPREME COURT REPORTS [2014] 14 S.C.R.
A 13. A perusal of the aforesaid judgments leave no room
for any doubt, that it is imperative for candidates to possess
the statutory qualification prescribed for appointment to the
posts, to which they are seeking appointment. In view of the
position declared by this Court, qualifications of B.Ed and other
B qualifications possessed by the private respondents, namely,
M.A., M.Sc, M.Com. Etc. cannot be treated as higher
qualifications with reference to the prescribed
qualifications(JBT/ETT). We, therefore, find the reasons
recorded by the DEO in the impugned order dated 04.4.2005
c were fully justified, and in consonance with the legal position
declared by this Court, as has been noticed hereinabove.
14. To be fair to the learned counsel for the private
respondents, we may also make a reference to the decision
rendered by this Court in Jyoti K.K ..and others vs. Kerala Public
D Service Commission and others (2010) 15 SCC 596. Learned
counsel had invited our attention to paragraph 7 thereof,
wherein it was observed as under:
"It is no doubt true, as stated by the High Court that when
a qualification has been set out under the relevant Rules,
E
the same cannot be in any manner whittled down and a
different qualification cannot be adopted. The High Court
is also justified in stating that the higher qualification must
clearly indicate or presuppose the acquisition of the lower
qualifications prescribed for the post shall also be
F
sufficient for the post. If a person has acquired higher
gyalifications in the same Faculty, such qualifications can.
certainly be stated to presuppose the acquisition of the
lower qualifications prescribed for the post. In the case it
may not be necessary to seek far."
G
(emphasis is ours)
15. It is no doubt true, that this Court held in the afore-
stated judgment. that if a person had acquired higher
qualifications in the same faeulty, such qualifications can
H certainly be stated to presuppose the acquisition of the lower
STATE OF PUNJAB AND OTHERS v.ANITAAND ORS. 829
(J. S. KHEHAR, J.]
qualification. Possession of higher qualification would A
therefore, according to learned counsel, make a candidate
eligible for the post, even though, the candidate does not
possess the prescribed qualification. The question however
is, whether the above position can be applied to the present
case? B
16. It was sought to be asserted on the basis of the
aforesaid observations, that since the private respondents
possess higher qualifications, then the qualification of JBT/ ·
ETT, they should be treated as having fulfilled the qualification
stipulated forthe posts of JBT/ETT teachers. It is not possible C
for us to acceptthe aforesaid submission of the learned counsel
for the private respondents, because the statutory rules which
were taken into consideration by this Court while recording
the aforesaid observations in Jyoti K.K.'s case (supra),
permitted the aforesaid course. The statutory rule, in the D
decision relied on by the learned counsel for the private
respondents, is extracted hereunder:
6. Rule 1O(a)(ii) reads as follows:
"1 O.(a)(ii) Notwithstanding anything contained in these E
Rules or in the Special Rules, the qualifications
recognised by executive orders or standing orders of
Government as equivalent to a qualification specified for
a post in the Special Rules and such of those higher
qualifications which presuppose the acquisition of the F
lower qualification prescribed for the post shall also be
sufficient for the post."
(emphasis is ours)
17. A perusal of the rule clearly reveals, that the G-
possession of higher qualification would presuppose the
acquisition of the lower qualification prescribed for the posts.
Insofar as the present controversy is concerned, there is no
similar statutory provision authorizing the appointment of
persons with higher qualifications. Moreover, in view of the H
830 SUPREME COURT REPORTS . [2014] 14 S.C.R.
A decision rendered by this Court in P.M. Latha's case (supra)
and in Yogesh Kumar's case (supra) lead to the clear an
unambiguous conclusion that none of the private respondents
could be considered as eligible for selection or appointment
to the advertised posts of JBT/ETI teachers.
B 18. It is also necessary for us to take into consideration
Government Instructions dated 20.12.1995, which were relied
upon by learned counsel, so as to contend, that the private
respondents who possess higher qualifications including the
qualifications depicted as preferential in the advertisement,
C should be treated as el1g1ble. Relevant extract of the aforesaid
Government Instructions dated 20.12.1995 is being
· reproduced hereunder:
"6. Vide letter No.1/18/95-3Edu-7/20602, dated
14.09.1995 the Government has taken the decision that
D
in future the appointment of J.B.T. Teachers in the
Government Schools may be done in two parts. In first
part the candidates who are possessing the qualification
of J.B.T./E.T.T. or equivalent shall be considered.
Thereafter, in case it emerges that, J.B.T./E.T.T. qualified
E
candidates are not available, in that event, appointments
may be made by adopting second part. It should be
mentioned in the advertisement, that in case candidates
with J.B.T./E.T.T. or equivalent qualification are not
available, then candidates who have graduation/post
graduation qualifications with B.Ed. will also be.
considered. But the candidates having qualification of
graduation/post graduation/ along with B.Ed. shall be paid
the scale of J.B.T. only. In such cases, an affidavit will be
furnished by the candidates that after selection, being
(,
graduates/post graduates candidates, will not claim any
other benefit or higher scale, and in this regard, at the
time of sending the requisition of posts, this shall also
be incorporated in the advertisement."
H
STATE OF PUNJABANDOTHERSv.ANITAANDORS. 831
[J. S. KHEHAR, J.]
19. Having given our thoughtful consideration to the A
submissions advanced atthe hands of the learned counsel for
the private respondents, based on the government instructions
dated 20.12.1995, we are of the view, that the private
respondents do not satisfy the pre-condition of valid
appointment expressed therein, inasmuch a_s, it was imperative B
for the Selection Committee, in the first instance, to consider
only those candidates who possessed the qualification of JBT/
ETT, and thereupon, posts that remained unfilled could be filled
up with persons possessing higher qualifications, i.e.,
graduate/post graduate qualifications along with B. Ed .. That C
was not the procedure which came to be adopted in the present
controversy. Therefore per se, no benefit can flow to the private
respondents, from the government instructions relied upon by
the learned counsel. Be that as it may, it needs to be
emphasised, that para 6 of the Government Instructions dated D
20.12.1995, are in clear violation of the statutory process of
selection and appointment postulated under the 1981 Rules.
Even if the above Government Instructions would have
bestowed validity on the selection process, through which the
. private respondents came to be appointed, the same could E
not have been acceded to, since Government Instructions in
·violation of the statutory rules, are a nullity in law. In view of the
foregoing reasons, it is not possible for us to bestow legitimacy/
legality to the appo_intment of the respondents as JBT/ETT
teachers. F
20. For the reasons recorded hereinabove, we are
satisfied that the impugned order passed by the High Court
dated 2.7.2007 is liable to be set aside. The same is
accordingly hereby set aside.
21. We were informed, that the private respondents came G
to be appointed by the Management of the Doaba Arya Senior
Secondary School, Nawanshahr, in the year 2002. We were
also informed, that the private respondents have continued to
be in the employment of the Doaba Arya Senior Secondary H
··-
832 SUPREME COURT REPORTS [2014] 14 S.C.R.
A School, Nawanshahr, till date. No fault whatsoever lies with
the private respondents. The fault, if at all, lies with the
Management of the Doaba Arya Senior Secondary School,
Nawanshahr. Unfortunately, the Management of the Doa~a
Arya Senior Secondary School, Nawanshahr, issued an
B advertisement in violation of the 1981 Rules. The procedure
depicted in the 198.1 Rules was also not followed while making .
'
.
appointments, to the six vacant posts of JBT/ETT teachers.·
The Management had required the private respondents to
discharge their duties, without the prior approval of the State
c Government The Management should therefor~ bear.the
responsibility of shouldering the emoluments payable to the
private respondents. We therefore, hereby direct the
Management of the Doaba Arya Senior Secondary School,
Nawanshahrto pay all emoluments (if the same are still unpaid)
o to the private respondents, within two months from the date of
receipt of a certified copy of this order.
21. The instant civil appeals are accordingly allowed in
the above terms. As a sequel to the above, all pending
interlocutory applications are disposed of.
E
Civil Appeal Nos. 7970-7971 of 2009
22. It is not a matter of dispute that the controversy in the
present civil appeals is identical to the one adjudicated upon
by us in the case of State of Punjab and others vs. Anita and
F others (Civil Appeal Nos.7983-7986 of 2009) decided on
24.09.2014.
· 23. In view of the above, the instant civil appeals are also
allowed in the same terms.
G
Kalpana K. Tripathy Appeals allowed.
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