STATE OF ODISHA & ORS. ETC.ETC versus SULEKH CHANDRA PRADHAN ETC.ETC.

STATE OF ODISHA & ORS. ETC.ETC.

SULEKH CHANDRA PRADHAN ETC.ETC.

(Civil Appeal Nos. 3036-3064 of 2022)

APRIL 20, 2022

[L. NAGESWARA RAO AND B. R. GAVAI, JJ.]

Odisha Education (Recruitment and Conditions of Service ofTeachers and Members of the Staff of Aided Educational Institutions)Rules, 1974 – rr.5, 6 – Tribunal allowed the Original Applicationsfiled by the respondents, thereby setting aside their termination andallowing them to continue as Government servant as third teacher/Assistant Teacher in Middle English Schools (M.E. Schools) asregular teacher, same relief was granted to 137 Hindi Teachers also– Writ petitions filed by the appellants, dismissed – On appeal, held:Perusal of the approval order of the Government of Orissa,Education and Youth Service Department, would reveal that foreach M.E. School, only two posts, i.e., one post of TrainedGraduate Headmaster and one post of Trained Matric Teacher,have been sanctioned – The order clearly provides that no otherpost of teaching and non-teaching staff would be permitted – It isnot in dispute that the appointment of all the applicants/respondents/teachers have been made directly by the respective Managementwithout following the procedure as prescribed under the Rules/Statute – Appointments made in contravention of the statutoryprovisions are void ab initio – Tribunal erred in allowing the OriginalApplications of the applicants/teachers – Similarly, the High Courtalso erred in dismissing the petitions filed by the appellants –Impugned judgment of the High Court and the orders of the Tribunalare set aside – Constitution of India – Article 136 – Service Law.

Allowing the appeals, the Court

HELD: 1.1 Perusal of the approval order dated 12thSeptember, 1980 of the Government of Orissa, Education andYouth Service Department, would reveal that for each M.E.School, only two posts, i.e., one post of Trained GraduateHeadmaster and one post of Trained Matric Teacher, have beensanctioned. The order clearly provides that no other post of

CDEF

Ateaching and non-teaching staff would be permitted. It is not indispute that the appointment of all the applicants/respondents/teachers have been made directly by the respective Managementwithout following the procedure as prescribed under the Rules/Statute. It is trite law that the appointments made incontravention of the statutory provisions are void ab initio. TheBcontention raised that since the applicants/teachers wereappointed on posts which were not on grant-in-aid basis, the saidRules are not applicable is not accepted. The said Rules wouldclearly show that they are applicable to Aided EducationalInstitution. Undisputedly, the institutions in which the applicants/Cteachers were appointed, were recognized as Aided M.E. Schoolsvide G.O. dated 12th September, 1980. It is also not in disputethat the appointments so made were subsequent to the schoolsbeing recognized as Aided Schools. As such, the contention inthat regard deserves to be rejected. [Paras 31-33][356-E-G; 357-B-C]D1.2 The Tribunal, while delivering the judgment and orderdated 18th May, 2017 and 30th January, 2018, has failed to takeinto consideration the earlier orders dated 25th June, 2013 and23rd September, 2013 delivered by the same Tribunal. In thesaid orders of 2013, the Tribunal had elaborately considered theEprovisions of the said Rules and found no merit in the contentionsraised on behalf of the applicants therein. The orders passed bythe Tribunal ignoring its earlier orders, which were passedelaborately considering the scheme of the said Rules, are totallycontrary to the well-established norms of judicial propriety. TheFsituation becomes graver, inasmuch as, the Tribunal has allowedO.A. No.2270 OF 2015 by its order dated 18th May, 2017 filedby Sri Antaryami Bal, whose earlier application being O.A. No.4029(2) of 1996 with regard to the same relief was rejected bythe Tribunal vide its earlier order dated 12th April, 2012. Theorders passed by the Tribunal are, therefore, totally unsustainable.GNot only this, the Tribunal as well as the High Court has failed totake into consideration the order passed by this Court on 2ndDecember, 1996 in Civil Appeal No. 15712 of 1996. The impugnedorder passed by the High Court depicts total non-application ofmind. Whereas the cause title would itself show that WritHPetition (Civil) No.6557 of 2018 is disposed of by the impugned

judgment, the High Court observed that the order dated 18thMay, 2017, passed by the Tribunal in O.A. No.2266 of 2015, hasnot been challenged by the State. Whereas the teachers havehardly worked for four years and substantial part thereof onaccount of interim orders passed by the High Court, the HighCourt goes on to observe that the teachers have worked for aperiod of more than 20 years. No reasons, leave aside soundreasons, are reflected in the impugned order while dismissingthe writ petitions filed by the State. [Paras 34, 35][357-D-G; 358-A-B]

1.3 That leaves the Court with the submission that sincethe view taken by the Tribunal has been affirmed by the HighCourt and the Special Leave Petition challenging the same hasbeen dismissed, the view of the Tribunal has become final. meredismissal of the Special Leave Petition would not mean that theview of the High Court has been approved by this Court. As such,the contention in that regard is rejected. The Tribunal has erredin allowing the Original Applications of the applicants/teachers.Similarly, the High Court has also erred in dismissing the petitionsfiled by the appellants. The impugned judgment and order of theDivision Bench of the High Court dated 20th December, 2018passed in batch of writ petitions and the judgments and ordersdated 18th May, 2017 and 30th January, 2018 of the Tribunalpassed in batch of Original Applications are quashed and setaside. The Original Applications filed by the respondents/applicants before the Tribunal are dismissed. [Paras 36-39][358-C; 359-D-F]

Ayurvidya Prasarak Mandal and Another v. GeetaBhaskar Pendse (Mrs) and Others (1991) 3 SCC 246 :[1991] 2 SCR 282; J & K Public Service Commissionand Others v. Dr. Narinder Mohan and Others (1994)2 SCC 630 : [1993] 3 Suppl. SCR 900; OfficialLiquidator v. Dayanand and Others (2008) 10 SCC 1 :[2008] 15 SCR 331; Union of India and another v.Raghuwar Pal Singh (2018) 15 SCC 463 : [2018] 4SCR 1012; Kunhayammed and Others v. State of Keralaand Another (1997) 2 SCC 635 : [1996] 9 Suppl. SCR434 – relied on.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3036-3064 of 2022.

From the Judgment and Order dated 20.12.2018 of the High Courtof Orissa at Cuttack in W.P. (C) Nos.6557, 10792, 8037, 8040, 9163,10844, 10876, 10880, 10970, 11394, 11399, 11400, 11401, 11546, 11554,11556, 11796, 11798, 12520, 13672, 13848, 13850, 13999, 14107, 14108,14109, 14448, 14449 and 14450 of 2018.

DChander Uday Singh, Sr. Adv., Shibashish Misra, Amjid Maqbool,Advs. for the Appellants.

R. Balasubramanian, Sr. Adv., Gaurav Agrawal, Javedur Rahman,Pabitra Kumar Biswal, Shivendra Singh, Hitendra Nath Rath, Advs. forthe Respondents.EThe Judgment of the Court was delivered by

B. R. GAVAI, J.

1. Leave granted.

2. The appellants – State of Odisha and others have approachedFthis Court, being aggrieved by the judgment and order dated 20[th]December, 2018, delivered by the Division Bench of the High Court ofOrissa at Cuttack in batch of writ petitions being Writ Petition (Civil)No. 6557 of 2018 along with connected matters, thereby dismissing thesaid writ petitions filed by the appellants – State of Odisha and others,challenging the judgments and orders delivered by the OdishaGAdministrative Tribunal (hereinafter referred to as “the Tribunal”),Bhubaneswar Bench, Bhubaneswar/Cuttack Bench, Cuttack dated18[th] May, 2017 in O.A. No. 2266 of 2015 along with connected mattersand 30[th] January, 2018 in O.A. No.3420 (C) of 2015 along with connectedmatters.

3. Vide order dated 18[th] May, 2017, delivered in O.A. No.2266 of2015 along with connected matters, the Tribunal, Bhubaneswar Benchhad allowed the Original Applications filed by the applicants therein(respondents herein), thereby setting aside the termination of theapplicants (respondents herein) and directing/allowing them to continueas Government servant as third teacher/Assistant Teacher in MiddleEnglish Schools (hereinafter referred to as “M.E. Schools”) with effectfrom 1[st] April, 2011, as regular teacher. Vide order dated 30[th] January,2018, the Tribunal, Cuttack Bench followed its earlier order dated 18[th]May, 2017 and granted the same relief to 137 Hindi Teachers.

4. The parties are referred herein as they are referred to in theOriginal Applications.

5. The facts giving rise to the present appeals are as under:

6. All the applicants joined the Aided M.E. School as HindiTeachers, in or around 1988-89. The applicant-Sulekh Chandra Pradhan(respondent No.1 herein) in the lead case before the Tribunal,Bhubaneswar Bench, i.e., O.A. No.2266 of 2015, was appointed on 21[st]June, 1988 and joined on 23[rd] June, 1988, as Hindi Teacher at NrusinghaJena M.E. School, Naginipur in District Kendrapada. The appointmentof the said applicant was made by the Managing Committee of the saidSchool.

7. On 12[th] May, 1992, the Government of Orissa, EducationDepartment issued resolution, thereby taking over all M.E. Schoolssituated in the State of Odisha with effect from 1[st] April, 1991. Thoughthe Government took over all the teachers including non-teaching staffof the M.E. School as Government servants, Hindi Teachers were nottaken over as Government servants and therefore, the services of theapplicants were automatically terminated. Aggrieved thereby, on 2[nd] July,1993, Sulekh Chandra Pradhan (respondent No.1 herein), approachedthe High Court of Orissa at Cuttack by way of Writ Petition being OJCNo. 3042 of 1993, thereby raising grievance that the benefits extendedto Hindi Teachers in terms of the letter of the Deputy Director, Sanskrit,Hindi and Special Education (hereinafter referred to as “the DeputyDirector”) dated 1[st] May, 1992 were not being extended to him. It wasasserted that though he possessed the requisite qualification, he was notbeing absorbed against the third teacher post in the M.E. School wherehe was earlier working. The Division Bench of the High Court, vide

Ajudgment and order dated 2[nd] July, 1993, disposed of the said writ petitionby directing the Director of Elementary Education, Orissa (hereinafterreferred to as “the Director”), to look into the grievances of the petitionertherein (i.e. Sulekh Chandra Pradhan) within four months from the dateof receipt of the order.B8. On 7[th] January, 1994, the Government of Orissa issued aclarification that the letter dated 1[st] May, 1992 of the Deputy Directoraddressed to all Inspectors of Schools/all District Inspector of Schools,was applicable only to the teachers, who were appointed againstsanctioned posts and were drawing their salaries from the Governmentfund under Plan and non-plan scheme. By the said communication datedC1[st] May, 1992, the Deputy Director had clarified that Hindi being non-examinable subject in M.E. Schools, there was no need to allow theexisting Hindi Teachers in M.E. Schools to continue further.

9. It appears that in pursuance to the orders of the High Court,the Government of Orissa addressed letter dated 29[th] September, 1995Dto the Director, thereby informing that the Government had decided toadjust such Hindi Teachers appointed by the Managing Committee withinthe yardstick in UP (ME) Schools as Assistant Teachers in the takenover M.E. Schools either in vacant posts of Assistant Teacher or in thepost of Hindi Teacher to be created in such schools or in other schools inErelaxation of the qualifications, prescribed for the third teachers. Videthe said communication dated 29[th] September, 1995, the Director wasasked to ascertain the names of the Hindi Teachers along with theirqualification from the concerned District Inspector of Schools. In responseto the same, the Director immediately informed the Government thatsince the appointments were made beyond the yardstick and against theFprovisions of Odisha Education (Recruitment and Conditions of Serviceof Teachers and Members of the Staff of Aided Educational Institutions)Rules, 1974 (hereinafter referred to as “the said Rules”), the referenceto District Inspector of Schools to furnish the names and qualificationsof such Hindi Teachers would lead to every possibility for manipulationGof the office records. It was also pointed out that such an exercise mayenable to sponsor names of Hindi Teachers for approval by making back-dated appointments. It was therefore recommended that cases of onlysuch Teachers who had filed the writ application between 12[th] May,1992 and 12[th] May, 1993, i.e., within year after taking over of theschools should be considered as one time measure.H

10. Vide communication dated 21[st] May, 1996, the Government ofOrissa informed the Director that the Government has decided to adjust137 Hindi Teachers in M.E. Schools. It appears that vide communicationdated 17[th] June, 1996, the Government of Orissa also informed theDirector that while examining the original papers of Hindi Teachers,their Acquaintance Roll should be verified by the District Inspector ofSchools. It further appears that vide communication dated 21[st] August,1996, the Government of Orissa informed the Director that no action betaken in pursuance to its earlier letters/communications dated 21[st] May,1996 and 17[th] June, 1996, until further orders of the State Government.11. Ignoring the letter/communication dated 21[st] August, 1996,the respective District Inspector of Schools issued appointment orderdated 27[th] August, 1996 in favour of the applicant – respondent No. 1herein. Noticing this, the Directorate of Elementary Education, Orissa,Bhubaneswar addressed communication/letter dated 1[st] October, 1996to the District Inspector of Schools informing that all appointments madeby them should be kept in abeyance. It appears that on the basis of thesaid communication dated 1[st] October, 1996, the services of the applicants/Hindi Teachers were discontinued with effect from 4[th] November, 1996.On 5[th] September, 1998, the Government of Orissa addressed acommunication to the Director, stating therein that the Government haswithdrawn its G.O. No.31360 SME dated 29[th] September, 1995.

12. It is the contention of the State Government that the JointSecretary to the Government of Orissa, Department of School and MassEducation addressed communication dated 7[th] July, 2009 to the Director,stating therein that the Government had decided to adjust the services of137 Hindi Teachers in M.E. Schools as Assistant Teachers against thevacant posts. Vide another communication dated 2[nd] February, 2011, theoffice of the Director informed the District Inspectors of Schools that acommittee constituted and headed by them should scrutinize the originalpapers of Hindi Teachers and acquaintance roll of the incumbents shouldbe verified with reference to the cash book of the School from the dateof their joining before the adjustment of such teachers. In pursuance tothe aforesaid communication dated 2[nd] February, 2011, the applicants/respondents were appointed on 31[st] March, 2011 as Assistant Teachers.

13. It appears that certain teachers had approached the Tribunalby filing various applications, thereby challenging the order dated1[st] October, 1996 and 4[th] November, 1996, vide which the appointment

Aof teachers were kept in abeyance. One of such applications being O.A.No.4029(2) of 1996 came to be rejected by the Tribunal by order dated12[th] April, 2012. It appears that one another application being O.A.No.3800 (C) of 2012 was filed by one Nimai Charan Dash, seeking adirection to quash the order dated 21[st] August, 2012 whereby therepresentation of the applicant therein to adjust him as regular teacherBcame to be rejected. The said application came to be rejected by theTribunal, Cuttack Bench vide order dated 23[rd] September, 2013. Whilerejecting the said O.A. the Tribunal, Cuttack Bench, directed detailedenquiry to be conducted through the Vigilance Department.

14. In the enquiry, it was found that the letter dated 7[th] July, 2009Cof the Government of Orissa addressed to the Director to adjust 137Hindi Teachers as Assistant Teachers against vacant posts was issuedby suppressing its earlier letter dated 5[th] September, 1998, whereby theletter dated 29[th] September, 1995 to adjust the Hindi Teachers waswithdrawn. The Government of Orissa, therefore, vide communicationDdated 26[th] February, 2014, directed the Director to remove 137 HindiTeachers, who were illegally adjusted by the concerned District Inspectorof Schools. Accordingly, the services of the applicants/Teachers cameto be terminated with effect from 15[th] March, 2014.15. The applicants, being aggrieved by their termination approachedEthe High Court by way of Writ Petitions being Writ Petition (Civil) No.6747of 2014 and other writ petitions. The High Court vide order dated 9[th]May, 2014, delivered in Writ Petition (Civil) No.6747 of 2014, found thatthe termination was done without following the principles of natural justiceand as such, set aside the same. However, liberty was granted to theState to proceed against the petitioner therein (i.e., Ramesh KumarFMohanty) by complying with the Rules governing the employment of thepetitioner therein and the requirement of the rule of natural justice. TheHigh Court further directed that the services/appointments of such ofthe teachers would be continued till the decisions were taken by theauthorities after remand.G16. In pursuance thereof, the applicants/teachers were reinstatedon 15[th] December, 2014. In view of the liberty granted by the HighCourt, show cause notices were issued to the applicants on 22[nd] July,2015. Some of the applicants filed their replies and appeared for personalhearing. Many of them chose not to do so. The services of the applicantsHcame to be terminated with effect from 22[nd] August, 2015. Being

aggrieved, batch of Original Applications came to be filed before theTribunal. The same came to be allowed by the Tribunal, BhubaneswarBench, vide order dated 18[th] May, 2017, thereby quashing the showcause notices dated 22[nd] July, 2015 and holding that the applicants wereentitled to continue as regular Government servants as third teacher/Assistant Teacher in M.E. School with effect from 1[st] April, 2011.

17. Vide another order dated 30[th] January, 2018, the Tribunal,Cuttack Bench, followed the abovementioned order dated 18[th] May, 2017,passed by the Tribunal, Bhubaneswar Bench and granted similar reliefto 137 Hindi Teacher.

18. Being aggrieved by the judgments and orders dated 18[th] May,2017 and 30[th] January, 2018 of the Tribunal, the State of Odisha filedwrit petitions before the High Court. The same were dismissed by theimpugned judgment and order dated 20[th] December, 2018. Beingaggrieved thereby, the present appeals by way of special leave are filed.Vide order dated 20[th] September, 2019, this Court issued notice andgranted stay to the impugned judgment and order.

19. We have heard Shri Chander Uday Singh, learned SeniorCounsel appearing on behalf of the appellants, Shri Gaurav Agrawal,learned counsel appearing on behalf of the respondents/teachers andShri R. Balasubramanian, learned Senior Counsel appearing on behalfof the Interveners/applicants.

20. Shri Chander Uday Singh, learned Senior Counsel appearingon behalf of the appellants would submit that the High Court has grosslyerred in holding that the State had not challenged the judgment and orderdated 18[th] May, 2017, passed by the Tribunal, Bhubaneswar Bench, inO.A. No.2266 of 2015 and other connected cases. He submitted that,as matter of fact, Writ Petition (Civil) No.6557 of 2018 was filedchallenging the judgment and order dated 18[th] May, 2017, passed by theTribunal in O.A. No.2266 of 2015 and other connected cases. Hesubmitted that the High Court has erred in holding that the teachers haddischarged service under the State Government for more than twodecades. He further submitted that the Division Bench of High Courthas erred in holding that the State had meted out discriminatory treatmentamongst the teachers. He therefore submits that the judgments andorders passed by the Tribunal as well as the High Court are not sustainablein law and liable to be set aside.

A21. Shri Singh further submitted that the appointments made arecontrary to Rules 5 and 6 of the said Rules and as such, the appointmentsmade, de hors the said Rules, cannot be sustained. He further submittedthat the Tribunal, while delivering the judgments and orders dated 18[th]May, 2017 and 30[th] January, 2018, has failed to take into considerationthe earlier orders of the Tribunal dated 25[th] June, 2013 and 23[rd] September,B2013, vide which the Tribunal had rejected similar claims made by theHindi Teachers. He further submits that, as matter of fact, Sri AntaryamiBal, whose O.A. (No. 2270 of 2015) has been allowed by the Tribunalvide judgment and order dated 18[th] May, 2017, was the applicant in O.A.No.4029 (2) of 1996, which was rejected by the Tribunal, Cuttack BenchCby well-reasoned judgment and order dated 12[th] April, 2012. Hetherefore submits that the judgments and orders of the Tribunal, whichwere impugned before the High Court, would also not be sustainable onthe ground of judicial propriety.

22. On facts, Shri Singh submitted that the applicants/teachersDhave worked only between 27[th] August, 1996 and 4[th] November,1996;between 31[st] March, 2011 and 15[th] March, 2014; and lastly from 15[th]December, 2014 till 25[th] August, 2015. The third period was on accountof the orders passed by the High Court. He therefore submits that, atthe most, the applicants/teachers have worked approximately for periodof four years.E

23. Shri Gaurav Agrawal, learned counsel, would submit that thoughthe M.E. Schools had sanction of two posts, i.e., one post of Headmasterand one post of Assistant Teacher; the posts of Hindi Teacher werefilled in by the Management on non-grant basis. He submits that the saidRules would be applicable only to the appointments made on grant-in-Faid basis and as such, to the post of Headmaster and to the one post ofAssistant Teacher. Since the applicants/teachers, who were appointedon third post, which was on non-grant basis, they would not be governedby the said Rules.

24. Shri Agrawal further submits that in pursuance to the orderGpassed by the Division Bench of the High Court in O.J.C. No. 3042 of1993 dated 2[nd] July, 1993, the State had framed policy for absorptionof these teachers as one-time measure. He submits that prior to theirabsorption, detailed scrutiny and enquiry was required to be done. Hesubmits that if applicants/teachers were absorbed in pursuance to theHpolicy, which was framed in pursuance to the directions of the High

Court, the termination would be bad in law. He therefore submits that nointerference would be warranted with the judgments and orders passedby the Tribunal and the High Court.

25. Shri R. Balasubramanian, learned Senior Counsel appearingon behalf of the interveners/applicants would submit that similar matters,i.e., O.A. No. 3420(C) of 2015 and other connected matters have beenallowed by the Tribunal vide order dated 30[th] January, 2018. He submitsthat the order of the Tribunal was confirmed/affirmed by the High Courtvide order dated 11[th] April, 2018 passed in Writ Petition (Civil) No.21661of 2017. He submits that the Special Leave Petition (Civil) D. No.40252of 2018 challenging the same has been rejected by this Court vide orderdated 19[th] July, 2019. He therefore submits that the issue has reached afinality and therefore, it will not be permissible for the State to do awaywith the services of the Assistant Teachers. He further submits that theapplicants/interveners in the present appeals, who have succeeded beforethe Tribunal, the High Court, and this Court have not been reinstated.

26. For appreciating the rival submissions, it will be necessary torefer to Rules 5 and 6 of the said Rules, which read thus:

“5. Procedure of application to the Board and appointment ofStaff in aided institutions –

(1)The Secretary of the Managing Committee or the GoverningBody, as the case may be, of an Aided Educational Institutionshall, on or before the thirty-first day of August every yearapply to the Selection Board with copy of each applicationto the concerned Inspector of Schools in respect of Schools[Director of Higher Education] in respect of Colleges insuch manner as the Selection Board may prescribe forselection of candidate for appointment in the vacancy orvacancies in teaching post, and the concerned Inspector ofSchools and [Director of Higher Education] shall processthe applications so received and transmit the same to theSelection Board by thirtieth day of September every yearwith certificate of genuineness of the vacancy or vacanciesalong with statement of the vacancy position in theEducational Institutions within his jurisdiction.

(2)The Selection Board shall, on receipt of applications andcertificates referred to in Sub-rule () recommend list of

candidates in order of merit strictly according to the numberof vacancies, to the concerned Directors who shallthereupon, allot candidates to the concerned institutionsstrictly in order of merit as per vacancy.

(3)Appointment shall be made by the Managing Committee orthe Governing Body as the case may be, of the candidatesallotted under Sub-rule (2).

(4)[***]

(5)In the extent of non-acceptance of offer of appointment byany candidate, report to that effect shall be sent to theC[Director concerned] by the Secretary of the ManagingCommittee or the Governing Body, as the case may be, andupon receipt of such intimation, the name of the candidateshall be struck off the list. The consequential vacanciesshall then be filled up by candidates allotted by the Directorconcerned from an additional list obtained from the SelectionDBoard from the list of persons in the waiting list with it.

(6)If instance of default in the appointment of candidatesallotted by the Director, come to his notice, he shall becompetent to withhold the individual teacher’s cost of thegrant-in-aid to be paid to the institution concerned and totake steps to supersede the Managing Committee or theGoverning Body, as the case may be, under Section 11 ofthe Act.

(7)Where vacancy was not foreseen by thirty-first day ofFAugust the Secretary of the Managing Committee or theGovernment Body, as the case may be, shall apply to theSelection Board through the concerned Inspector or theDirector, as the case may be, for allotment of candidateswhereupon, the Selection Board shall recommendcandidates out of the waiting list maintained by it, throughGthe concerned Director.

(8)It shall not be necessary to apply to the Selection Board forappointments to vacancies [for period of six months or tillthe date of receipt of the list referred to in Sub-rule (2)from the Selection Board whichever is earlier] and all suchHappointments may be made by the Managing Committee or

the Government Body, as the case may be, with the priorapproval of the Inspector in respect of an Institution otherthan College and of the Director in respect of College.

[Provided that where it appears to the Inspector or theDirector, as the case may be, that the appointment to avacancy or vacancies in accordance with the provisions ofthis rule is being circumvented by making appointments inpursuance to this Sub-rule, the Director suo motu or on thereceipt of report from the Inspector as the case may be,shall be competent to proceed against the ManagingCommittee or the Governing Body under Section 11 of theAct.]

(9)Notwithstanding anything contained in Sub-rule (8), it shallbe competent for the Managing Committee or the GoverningBode, as the case may be to extend in terms of appointmentbeyond six months till the recommendation of the SelectionBoard is received with the prior approval of Government.

6. Procedure of selection of candidates –

(1) The Selection Board shall, at such intervals as it deemsproper call for applications for various posts in respect ofwhich vacancies are likely to arise in the course of the nextone year in such manner as may be determined in theregulation of the Selection Board.

(2) The Selection Board shall conduct examinationsincluding viva voce examination of any candidate or allcandidates with view to determine their merit andsuitability in the matter appointed in its regulations.”

27. Perusal of the sub-rule (1) of Rule 5 of the said Rules wouldshow that the Secretary of the Managing Committee or the GoverningBody, as the case may be, of an Aided Educational Institution, is requiredto apply to the Selection Board on or before the thirty-first day of Augustevery year with copy of each application to the concerned Inspector ofSchools and Director of Higher Education. The Inspector of Schoolsand the Director of Higher Education are required to process theapplications so received and transmit the same to the Selection Boardby thirtieth day of September every year with certificate of genuineness

ABC

Aof the vacancy/vacancies. Perusal of sub-rule (2) of Rule 5 of the saidRules would show that the Selection Board shall recommend list ofcandidates in order of merit strictly according to the number of vacanciesto the concerned Directors, who shall thereupon allot candidates to theconcerned institutions strictly in order of merit as per vacancy.

B28. Perusal of sub-rule (6) of Rule 5 of the said Rules wouldreveal that if the Management defaults in making appointment ofcandidates allotted by the Director, he shall be competent to withholdthe individual teacher’s cost of the grant-in-aid to be paid to the institutionconcerned. He is also entitled to take steps to supersede the ManagingCCommittee or the Governing Body, as the case may be. Under sub-rule(8) of Rule 5 of the said Rules, the relaxation is granted for filling up thevacancies for period of six months or till the date of receipt of the listas referred to in sub-rule (2) of Rule 5 of the said Rules. However, thesame has to be with the prior approval of the Inspector in respect of aninstitution other than College and of the Director in respect of College.D29. Rule 6 of the said Rules prescribes the procedure for selectionof candidates.

30. It could thus be clearly seen that detailed selection procedureis prescribed for making appointment of vacancies arising in AidedEEducational Institution.

31. Perusal of the approval order dated 12[th] September, 1980 ofthe Government of Orissa, Education and Youth Service Department,would reveal that for each M.E. School, only two posts, i.e., one post ofa Trained Graduate Headmaster and one post of Trained MatricFTeacher, have been sanctioned. The order clearly provides that no otherpost of teaching and non-teaching staff would be permitted.

32. It is not in dispute that the appointment of all the applicants/respondents/teachers have been made directly by the respectiveManagement without following the procedure as prescribed under theGRules/Statute. It is trite law that the appointments made in contraventionof the statutory provisions are void ab initio. Reference in this respectcould be made to the judgments of this Court in the cases of AyurvidyaPrasarak Mandal and another vs. Geeta Bhaskar Pendse (Mrs)and others[1], J & K Public Service Commission and others vs. Dr.

H1 (1991) 3 SCC 246

Narinder Mohan and others[2], Official Liquidator vs. Dayanand andothers[3], and Union of India and another vs. Raghuwar Pal Singh[4].

33. We are unable to accept the contention raised by Shri GauravAgrawal and Shri R. Balasubramanian that since the applicants/teacherswere appointed on posts which were not on grant-in-aid basis, the saidRules are not applicable. The said Rules would clearly show that theyare applicable to Aided Educational Institution. Undisputedly, theinstitutions in which the applicants/teachers were appointed, wererecognized as Aided M.E. Schools vide G.O. dated 12[th] September, 1980.It is also not in dispute that the appointments so made were subsequentto the schools being recognized as Aided Schools. As such, the contentionin that regard deserves to be rejected.

34. We further find that the Tribunal, while delivering the judgmentand order dated 18[th] May, 2017 and 30[th] January, 2018, has failed to takeinto consideration the earlier orders dated 25[th] June, 2013 and 23[rd]September, 2013 delivered by the same Tribunal. In the said orders of2013, the Tribunal had elaborately considered the provisions of the saidRules and found no merit in the contentions raised on behalf of theapplicants therein. The orders passed by the Tribunal ignoring its earlierorders, which were passed elaborately considering the scheme of thesaid Rules, are totally contrary to the well-established norms of judicialpropriety. The situation becomes graver, inasmuch as, the Tribunal hasallowed O.A. No.2270 OF 2015 by its order dated 18[th] May, 2017 filedby Sri Antaryami Bal, whose earlier application being O.A. No. 4029(2)of 1996 with regard to the same relief was rejected by the Tribunal videits earlier order dated 12[th] April, 2012. The orders passed by the Tribunalare, therefore, totally unsustainable in view of the law laid down by thisCourt in the case of Official Liquidator vs. Dayanand and others(supra). Not only this, the Tribunal as well as the High Court has failedto take into consideration the order passed by this Court on 2[nd] December,1996 in Civil Appeal No. 15712 of 1996[5].

35. The impugned order passed by the High Court depicts totalnon-application of mind. Whereas the cause title would itself show thata Writ Petition (Civil) No.6557 of 2018 is disposed of by the impugned

2 (1994) 2 SCC 630

3 (2008) 10 SCC 1

4 (2018) 15 SCC 463

5 (1997) 2 SCC 635

Ajudgment, the High Court observed that the order dated 18[th] May, 2017,passed by the Tribunal in O.A. No.2266 of 2015, has not been challengedby the State. Whereas the teachers have hardly worked for four yearsand substantial part thereof on account of interim orders passed by theHigh Court, the High Court goes on to observe that the teachers haveworked for period of more than 20 years. No reasons, leave asideBsound reasons, are reflected in the impugned order while dismissing thewrit petitions filed by the State.36. That leaves us with the submission of Shri R. Balasubramanian,learned Senior Counsel that since the view taken by the Tribunal hasbeen affirmed by the High Court and the Special Leave PetitionCchallenging the same has been dismissed, the view of the Tribunal hasbecome final. In this respect, reliance could be placed on the judgmentof this Court in the case of Kunhayammed and others vs. State ofKerala and another[6], wherein this Court has held as under:

“27. petition for leave to appeal to this Court may be dismissedDby non-speaking order or by speaking order. Whatever be thephraseology employed in the order of dismissal, if it is non-speaking order, i.e., it does not assign reasons for dismissingthe special leave petition, it would neither attract the doctrineof merger so as to stand substituted in place of the order putEin issue before it nor would it be declaration of law by theSupreme Court under Article 141 of the Constitution for thereis no law which has been declared. If the order of dismissal besupported by reasons then also the doctrine of merger would notbe attracted because the jurisdiction exercised was not an appellatejurisdiction but merely discretionary jurisdiction refusing to grantFleave to appeal. We have already dealt with this aspect earlier.Still the reasons stated by the Court would attract applicability ofArticle 141 of the Constitution if there is law declared by theSupreme Court which obviously would be binding on all the courtsand tribunals in India and certainly the parties thereto. TheGstatement contained in the order other than on points of law wouldbe binding on the parties and the court or tribunal, whose orderwas under challenge on the principle of judicial discipline, thisCourt being the Apex Court of the country. No court or tribunal orparties would have the liberty of taking or canvassing any view

contrary to the one expressed by this Court. The order of SupremeCourt would mean that it has declared the law and in that light thecase was considered not fit for grant of leave. The declaration oflaw will be governed by Article 141 but still, the case not beingone where leave was granted, the doctrine of merger does notapply. The Court sometimes leaves the question of law open. Orit sometimes briefly lays down the principle, may be, contrary tothe one laid down by the High Court and yet would dismiss thespecial leave petition. The reasons given are intended for purposesof Article 141. This is so done because in the event of merelydismissing the special leave petition, it is likely that an argumentcould be advanced in the High Court that the Supreme Court hasto be understood as not to have differed in law with the HighCourt.”

[emphasis supplied]

37. It is thus clear that mere dismissal of the Special LeavePetition would not mean that the view of the High Court has been approvedby this Court. As such, the contention in that regard is rejected.

38. We are, therefore, of the considered view that the Tribunalhas erred in allowing the Original Applications of the applicants/teachers.Similarly, the High Court has also erred in dismissing the petitions filedby the appellants.

39. In the result, the appeals are allowed. The impugned judgmentand order of the Division Bench of the High Court dated 20[th] December,2018 passed in batch of writ petitions and the judgments and ordersdated 18[th] May, 2017 and 30[th] January, 2018 of the Tribunal passed in abatch of Original Applications are quashed and set aside. The OriginalApplications filed by the respondents/applicants before the Tribunal aredismissed.

40. All pending applications, including applications for intervention,shall stand disposed of. There shall be no order as to costs.

Divya Pandey and Anurag Bhaskar(Assisted by : Iram Jan, LCRA)

Appeals allowed.