In CIVIL APPEAL NOS.3036-3064 OF 2022–SC- Appointments made in contravention of statutory provisions are void ab initio: SC Justices L. Nageswara Rao & B.R. Gavai [20-04-2022]

Read Order: STATE OF ORISSA & ORS. ETC. ETC. Vs. SULEKH CHANDRA PRADHAN ETC.ETC. 

Mansimran Kaur 

New Delhi, April 21, 2022: Observing that appointments made in contravention of the statutory provisions are void ab initio, the Supreme Court has held that the appointment of all the applicants-teachers had been made directly by the respective Management without following the procedure as prescribed under the Rules/Statute.

Referring to the Odisha Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 , the Division Bench of Justice  L. Nageswara Rao and Justice B.R. Gavai  opined that a detailed selection procedure is prescribed for making appointment of vacancies arising in Aided Educational Institution.

The appellants  in the present case approached this Court, being aggrieved by the judgment and order dated December 20,2018  wherein  the Division Bench of the High Court of Orissa  in a batch of writ petitions  along with connected matters, dismissed the said writ petitions instituted  by the appellants assailing  the judgments and orders delivered by the Odisha Administrative Tribunal dated May 18, 2017 and on 30th January 2018 on the connected matters therein.

Brief facts of the present appeal were that the applicants joined the Aided  M.E. School as Hindi teachersin or around 1988-89. The applicant-Sulekh Chandra Pradhan (first respondent herein) in the lead case before the Tribunal, Bhubaneswar Bench was appointed on June 21, 1988 and the first respondent joined as Hindi teacher on June 23, 1988. The appointment of the said applicant was made by the Managing Committee of the said School.

Thereafter on May 12, 1992, the Government of Orissa, Education Department issued a resolution, thereby taking over all M.E. Schools situated in the State of Odisha with effect from 1st April, 1991. Though the Government took over all the teachers including non-teaching staff of the M.E. Schools as Government servants, however Hindi teachers were not taken over as Government servants and therefore, the services of the applicants were automatically terminated. 

Aggrieved by the same the respondent approached the High Court of Orissa thereby raising a grievance that the benefits extended to Hindi teachers in pursuant to letter of the Deputy Director, Sanskrit, Hindi and Special Education dated May 1, 1992  were not being extended to him. It was asserted that though he possessed the requisite qualification, he was not being absorbed against the teacher post in the M.E. School where he was earlier working.

The Division Bench of the High Court  disposed of the said writ petition by directing the Director of Elementary Education, Orissa  to look into the grievances of the petitioner therein (Sulekh Chandra Pradhan) within four months from the date of receipt of the order. However, the State Government issued a clarification that the letter of the Deputy Director which was addressed to all Inspectors of Schools/all District Inspector of Schools, was applicable only to the teachers, who were appointed against sanctioned posts and were drawing their salaries from the Government fund under plan and non-plan scheme. By the said communication dated May 1,  1992,  the Deputy Director had clarified that Hindi being a non-examinable subject in M.E. Schools, there was no need to allow the existing Hindi Teachers in M.E. Schools to continue further.

Then, the respective District Inspector of Schools issued an appointment order dated August 27, 1996 in favor of the first respondent but the Deputy Director notified that all appointments made should be kept on hold. On the basis of the said communication dated  October 1, 1996, the services of the applicants/Hindi teachers were discontinued with effect from November 4, 1996. After a communication passed by the Joint Secretary to the State Government, the applicants/respondents were appointed on  March 31,  2011 as Assistant Teachers.

Thereafter another application was instituted by one Nimai Charan Dash, seeking a direction to quash the order dated  August 21,  2012 whereby the representation of the applicant therein to adjust him as a regular teacher came to be rejected. The said application came to be rejected by the Tribunal, Cuttack Bench by an order dated September 23,  2013. While rejecting the application the Tribunal directed a detailed enquiry to be conducted through the Vigilance Department.

In the enquiry, it was found that the letter dated  July 7,  2009 of the Government of Orissa addressed to the Director to adjust 137 Hindi Teachers as Assistant Teachers against vacant posts was issued by suppressing its earlier letter dated  September 5, 1998, whereby the letter dated  September 29, 1995 to adjust the Hindi Teachers was withdrawn. The Government of Orissa, therefore, by communication dated February 26,  2014, directed the Director to remove 137 Hindi teachers, who were illegally adjusted by the concerned District Inspector of Schools. Accordingly, the services of the applicants/teachers came to be terminated with effect from March 15,  2014.

The applicants, being aggrieved by their termination, approached the High Court by way of writ petition.  The High Court by order dated  May 9,  2014, observed that the termination was done without following the principles of natural justice. The High Court further directed that the services/appointments of such teachers would be continued till the decisions were taken by the authorities after remand.

In pursuance thereof, the applicants/teachers were reinstated on December 15, 2014. In view of the liberty granted by the High Court, show cause notices were issued to the applicants on  July 22,  2015. Thereafter, the  services of the applicants came to be terminated with effect from  August 22,  2015. Being aggrieved, a batch of Original Applications came to be filed before the Tribunal which were allowed by the Tribunal and it was held that the applicants were entitled to continue as regular Government servants as third teacher/Assistant Teacher in M.E. School with effect from April 1, 2011.

Being aggrieved by the judgments and orders dated  May 18,  2017 and  January 30, 2018 of the Tribunal, the State of Odisha filed writ petitions before the High Court. The same were dismissed by the impugned judgment and order dated December 20, 2018. Being aggrieved thereby, the present appeals by way of special leave were filed. 

The Apex Court noted that perusal of the approval order dated  September 12, 1980 of the Government of Orissa, Education and Youth Service Department,  revealed that for each M.E. School, only two posts, i.e., one post of a Trained Graduate Headmaster and one post of a Trained Matric Teacher, had been sanctioned. The order clearly provided that no other post of teaching and non-teaching staff would be permitted.

The Bench said, “It is not in dispute that the appointment of all the applicants/respondents/teachers have been made directly by the respective Management without following the procedure as prescribed under the Rules/Statute. It is a trite law that the appointments made in contravention of the statutory provisions are void ab initio.”

The  contention raised by Counsel for the respondents was that since the applicants/teachers were appointed on posts which were not on grant-in-aid basis, so the Odisha Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 were not applicable. The Apex Court observed that the said Rules clearly depict that they are applicable to Aided Educational Institution. Undisputedly, the institutions in which the applicants/teachers were appointed, were recognized as Aided M.E. Schools and was also not in dispute that the appointments so made were subsequent to the schools being recognized as Aided Schools. As such, the contention in that regard was rejected.

Another contention raised by the Counsel for the respondent was that since the view taken by the Tribunal was affirmed by the High Court and the Special Leave Petition challenging the same was dismissed, therefore the view of the Tribunal has become final. In this respect, reliance was  placed on the judgment of this Court in Kunhayammed and others vs. State of Kerala and another wherein this Court has held  a petition for leave to appeal to this Court may be dismissed by a non-speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non-speaking order, i.e., it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared. Thus, the Bench opined that a mere dismissal of the Special Leave Petition would not mean that the view of the High Court has been approved by this Court and rejected respondent’s contention.

As a result, the appeals were allowed. The impugned judgment and order of the Division Bench of the High Court dated December 20,  2018 passed in a batch of writ petitions and the judgments and orders dated May 18, 2017 and  January 30, 2018 of the Tribunal were quashed and set aside.