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Pramod Kumar v. U.P Secondary Education Services Commission And Others
Factual and Procedural Background
The appellant, Pramod Kumar, was appointed on 29 November 1988 as an ad-hoc Assistant Teacher (C.T. Grade) in Shri Jawahar Inter College, Bamnauli, Meerut. At the time of appointment he held a B.Ed. degree issued by “Maithili Vishwa Vidyapeeth, Sankat Mochan Dham, Darbhanga, Bihar”, an institution not recognised under the University Grants Commission Act, 1956. Under the Uttar Pradesh Secondary Education Services Commission and Selection Boards Act, 1982 and the 1983 Rules framed thereunder, possession of a degree from a recognised university was a mandatory qualification for the post.
When the management discovered the defect, it directed the appellant in February 1993 to acquire a recognised B.Ed. degree within two years. The appellant claims to have obtained such a degree through a correspondence course from Maharshi Dayanand University, Rohtak, but the record before the Court contained only a marksheet, and the recognition status of that course in Uttar Pradesh was unclear.
Meanwhile, the appellant filed Writ Petition No. 1338 of 1989 before the Allahabad High Court for salary arrears; an order dated 5 July 1996 directed payment of arrears. Alleged non-compliance led to contempt proceedings. On 11 January 1997 the appellant received a show-cause notice alleging he had procured appointment on the basis of an invalid B.Ed. degree. A full departmental enquiry culminated in termination of service on 12 February 1997.
The appellant’s challenge to termination failed before a Single Judge (order dated 9 March 1997) and a Division Bench in special appeal. The present civil appeal was filed before the Supreme Court.
Legal Issues Presented
- Whether an appointment made in violation of the statutory requirement of possessing a degree from a recognised university is void ab initio and incapable of being cured by subsequent acquisition of the requisite qualification.
- Whether the appellant’s services could be regularised under Sections 33-A or 33-B of the Uttar Pradesh Secondary Education Services Commission and Selection Boards Act, 1982, despite the initial illegality.
- Whether the departmental proceedings and subsequent termination were vitiated by mala fides or procedural unfairness given the appellant’s length of service and alleged permission to obtain a fresh degree.
Arguments of the Parties
Appellant's Arguments
- The appellant disclosed his educational background; the management knew the B.Ed. degree was from an unrecognised institution, hence no fraud was practised.
- Having later obtained a recognised B.Ed. degree with the management’s permission, he satisfied the qualification requirement and should be continued in service.
- The departmental enquiry was initiated with mala fide intent after a change in management and the filing of contempt proceedings.
- After more than nine years of service, equity demanded protection of his employment.
Respondents' Arguments
- Lack of a recognised B.Ed. degree at the time of appointment rendered the appointment illegal and void under Rule 3 of the 1983 Rules.
- Subsequent acquisition of qualification cannot validate an appointment originally made in breach of mandatory statutory provisions.
- The appellant did not meet the pre-conditions for regularisation under the 1982 Act; hence the High Court rightly refused relief.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Secretary, State of Karnataka v. Umadevi (3) (2006) 4 SCC 1 | Illegality in appointments cannot be regularised; only procedural irregularities can. | Reinforced that statutory qualifications cannot be waived or cured later. |
| National Fertilizers Ltd. v. Somvir Singh (2006) 5 SCC 493 | Appointments contrary to statute are void. | Used to emphasise invalidity of appointment lacking requisite qualification. |
| Post Master General, Kolkata v. Tutu Das (Dutta) (2007) 5 SCC 317 | Distinction between illegality and irregularity in appointments. | Cited in support of view that an illegal appointment cannot be validated. |
| Ravinder Sharma v. State of Punjab (1995) 1 SCC 138 | Appointment without prescribed qualification is bad; no estoppel against statute. | Followed; appointment declared void because appellant lacked recognised degree. |
| Mohd. Sartaj v. State of U.P (2006) 2 SCC 315 | Qualification must exist on the date of recruitment unless rules permit later acquisition. | Applied to hold appellant’s later degree irrelevant. |
| Ashok Kumar Sonkar v. Union of India (2007) 4 SCC 54 | Candidate ineligible if he lacks qualification on the cut-off date. | Supported rejection of appellant’s claim. |
| Shainda Hasan v. State of U.P (1990) 3 SCC 48 | Discretionary relief based on State concession and long service. | Distinguished; Court noted it involved relaxation of experience, not basic qualification. |
| Dr. M.S. Mudhol v. S.D. Halegkar (1993) 3 SCC 591 | Court’s discretion in quo warranto; public interest considerations. | Distinguished; qualification equivalence, not absence, was in issue there. |
| Santosh Yadav v. State of Haryana (1996) 9 SCC 320 | Effect of State-granted relaxation after appointment. | Distinguished; present case had no State relaxation. |
| Radha Raizada v. Vidyawati Darbari Girls Inter College (1994) 1 All LJ 1077 (FB) | Cut-off dates for regularisation under U.P. law. | Cited to hold Removal of Difficulties Orders inapplicable. |
| Prabhat Kumar Sharma v. State of U.P (1996) 10 SCC 62 | Approval of Radha Raizada ruling. | Reaffirmed bar on regularisation beyond cut-off date. |
| Ram Bhagat Sharma v. State of Haryana (1997) 4 RSJ 134 | Directions to terminate unqualified teachers with opportunity to re-qualify. | Court expressly declined to follow this decision. |
Court's Reasoning and Analysis
The Supreme Court held that statutory provisions under Section 16 of the 1982 Act and Rule 3 of the 1983 Rules mandate possession of a degree from a university recognised under the UGC Act as an essential qualification. An appointment made in contravention of this requirement is a nullity under Section 16(2) of the Act.
The Court observed that “Maithili Vishwa Vidyapeeth” was not a university established by statute, nor recognised by the UGC; hence the appellant never possessed the prescribed qualification at the time of appointment. Citing Umadevi (3) and other precedents, it emphasised that an illegality cannot be cured by subsequent events; only an irregularity is remediable.
The purported permission by the management to acquire another degree had no legal efficacy because neither the management nor the Commission had authority to waive statutory qualifications. The later correspondence-course marksheet from Maharshi Dayanand University did not assist the appellant since recognition within Uttar Pradesh was unproved and, in any event, came after the appointment.
Allegations of mala fide initiation of departmental proceedings were deemed irrelevant; the appellant had no legal right to continue in service without initial eligibility, and the timing of proceedings could not validate an illegal appointment.
Claims for regularisation under Sections 33-A/33-B of the 1982 Act and under the Removal of Difficulties Orders were rejected because the appellant did not satisfy threshold eligibility and the relevant cut-off dates had expired before his termination.
Holding and Implications
APPEAL DISMISSED.
The Court affirmed the termination of the appellant’s services and declined all relief. The direct consequence is that the appellant remains out of service and is not entitled to salary or regularisation. The decision reiterates and strengthens the principle that appointments made without fulfilment of statutory qualifications are void ab initio and cannot be validated by subsequent acquisition of qualification or by equitable considerations; however, it sets no new precedent beyond applying established case-law.
S.B Sinha, J.— The appellant was appointed as an assistant teacher in CT Grade in an intermediate college. Admittedly, essential qualifications and other conditions for recruitment therefor are prescribed by the Uttar Pradesh Secondary Education Services Commission and Selection Boards Act, 1982 (the Act) and the Rules framed thereunder. Section 16 of the Act provides for the essential qualifications. In terms of the Act, rules were framed by the State of Uttar Pradesh in 1983 known as the Uttar Pradesh Secondary Education Services Commission Rules (the Rules). Section 16 of the Act reads thus:
“16. Appointments to be made only on the recommendations of the Board.—(1) Notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 or the Regulations made thereunder but subject to the provisions of Sections 12, 18, 21-B, 21-C, 21-D, 33, 33-A, 33-B, 33-C, 33-D, 33-E and 33-F, every appointment of a teacher, shall on or after the date of the commencement of the Uttar Pradesh Secondary Education Services Selection Board (Amendment) Act, 2001 be made by the management only on the recommendation of the Board:
Provided that in respect of retrenched employees, the provisions of Section 16-EE of the Intermediate Education Act, 1921, shall mutatis mutandis apply:
Provided further that the appointment of a teacher by transfer from one institution to another, may be made in accordance with the Regulations made under Clause (c) of sub-section (2) of Section 16-G of the Intermediate Education Act, 1921.
(2) Any appointment made in contravention of the provisions of sub-section (1) shall be void.”
The minimum qualification for masters and teachers were laid down in the Rules as prescribed under Sections 16-E, 16-F and Section 16-FF of the Act.
2. Rule 3 of the Rules reads as under:
“3. Qualifications and experience, etc. for appointment as teacher.—(1) The minimum academic qualification for appointment as teacher shall be as given in Regulation 1 under Chapter II of the Regulations, framed under the Intermediate Education Act, 1921.
(2) No male person shall be eligible for appointment to the post of the head of an institution or teacher in a girls institution:
Provided that nothing contained in this sub-rule shall apply in relation to—
(i) a teacher already working in a permanent capacity in a girls institution for promotion or appointment to any higher post of a teacher not being the post of the head of an institution in the same institution;
(ii) appointment as a teacher for the subject of music in an institution to a person who is blind:
Provided further that when a suitable lady candidate is not available for appointment in a girls institution for the post of a teacher, not being the post of head of institution, or for any other sufficient reason, the Commission is satisfied that it is in the interest of the students so to do, it may recommend a male candidate for such post:
Provided also that, before recommending a male candidate in accordance with the preceding proviso, the Commission may obtain and consider the views of the Director and management.”
3. It is neither in doubt nor in dispute that prior to coming into force of the said Act, the matters relating to recruitment of assistant teachers used to be governed by the U.P Intermediate Education Act, 1921 (the 1921 Act). A bare perusal of the aforementioned provisions read with those of the 1921 Act would clearly show that the possession of a graduate degree from a university recognised under the University Grants Commission Act (the UGC Act) or any other State Act was at all material times and still is imperative.
4. The appellant admittedly did his BEd degree from Maithili Vishwa Vidyapeeth, Sankat Mochan Dham, Darbhanga, Bihar. The name of the said institution allegedly figured in Directory of Institutions for Higher Education, published by the Ministry of Education and Culture, Government of India in the year 1982. It, however, stands admitted that it was not an institution recognised under the UGC Act.
5. He was appointed on 29-11-1988 by the Principal/Manager, Shri Jawahar Inter College, Bamnauli (Meerut) stating:
“You are hereby informed with pleasure that the teacher's selection committee of the college has appointed you in short-term vacancy as ad hoc assistant teacher in CT Grade on the basis of interview held on 20-11-1988 up to the reversion of Shri Shiv Kumar Sharma at his post or vacancy filled up and joined with a person selected by the Commission at the above post.
Please join the duty at above post within 10 days, otherwise this appointment letter of yours will be deemed as cancelled.”
6. It became known to the university that he had not been possessing a degree granted by a university recognised by the Commission.
7. He was asked to obtain a BEd degree from a recognised university within a period of two years. An opportunity was granted to him to obtain such a degree by a letter dated 18-2-1993 stating:
“You, Shri Pramod Kumar, Assistant Teacher, CT Grade, know that you have acquired BEd degree from Maithili Vishwa Vidyapeeth, Darbhanga. We came to know from reliable sources that the said university from where you have acquired BEd degree has not been recognised by the University Grants Commission.
Earlier also the manager of the institution, Shri Naresh Singh Rathi has also directed you to acquire BEd degree from a recognised university within a period of two years. Now I, as a last opportunity, direct you to acquire BEd degree from a recognised university. You are requested to acquire BEd degree in future otherwise Managing Committee shall be constrained to take appropriate action.”
8. He prayed for appearing in the said examination in BEd correspondence examination from Maharshi Dayanand University, Rohtak (Haryana). Allegedly, such permission was granted and he obtained a requisite degree. Before us, however, only a marksheet issued by the Controller of Examination of Maharshi Dayanand University, Rohtak has been placed. Whether the correspondence course for BEd degree granted by the said university is valid and recognised by the State of U.P or not is not known.
9. Inter alia on the premise that he had not been paid his salary, he filed a writ petition before the High Court of Judicature at Allahabad which was marked as Civil Miscellaneous Writ Petition No. 1338 of 1989. Upon noticing that he had been getting his salary from 1-1-1991, by a judgment and order dated 5-7-1996, the High Court directed the respondents to pay the arrears of salary from 1-12-1988 to 31-12-1990.
10. Allegedly, as the said order was not complied with, a contempt petition was filed wherein a show-cause notice was issued by the High Court. It is, however, not in dispute that a notice to show cause was served upon him on or about 11-1-1987, on the premise charge that he had obtained his appointment on the basis of a fabricated and illegal BEd degree. Cause was shown by him on 16-1-1997.
11. A departmental proceeding was thereafter initiated against the appellant. On completion thereof, his services were terminated by an order dated 12-2-1997. He filed a writ petition questioning the correctness of the said order. By reason of a judgment and order dated 9-3-1997, a learned Single Judge of the High Court dismissed the said writ petition stating:
“After considering respective contentions of the parties and in view of the admitted facts, I find that the petitioner was appointed originally when admittedly he was not having proper qualification. The petitioner has failed to show under what circumstances he could be validly appointed on the basis of such qualification of Bachelor of Education degree awarded by a university which was non-recognised. That being so the appointment itself is bad. No question of estoppel also arises in such case. The law in this connection has been decided in Ravinder Sharma v. State of Punjab (1995) 1 SCC 138.
In the present case the petitioner's appointment was not having an approval and he was only paid salary under the court's order. Moreover, admittedly the petitioner's appointment was without there being a proper qualification and as such the appointment of the petitioner was in violation of Section 16-E of the U.P Intermediate Education Act, 1921. In the circumstances, the petitioner is not entitled to protection under Section 16-C(3) of the said Act.”
12. The High Court, furthermore, in its judgment took into consideration the contention of the appellant that his services should have been regularised in terms of Section 33-A and Section 33-B of the Uttar Pradesh Secondary Education Services Commission and Selection Boards Act, 1982, as he had been possessing the prescribed qualification at the material point of time.
13. A special appeal preferred by the appellant against the said judgment and order has been dismissed by the Division Bench holding:
“Considering the totality of the facts and circumstances as discussed above, we are of the view that the initial appointment of the petitioner, being wholly illegal and void by virtue of its being dehors the Rules his appointment to the said post of assistant teacher in the institution could not be permitted to continue any more, even if he had managed subsequently to obtain another of BEd degree. We are in full agreement with the learned Single Judge who has not found any good ground for interference under the extraordinary jurisdiction envisaged under Article 226 of the Constitution of India. The decision given in the writ petition, thus, does not require to be disturbed in the present intra-court appeal, while lacks merits and is hereby dismissed with no order as to cost.”
14. Mr P.S Patwalia, the learned Senior Counsel appearing on behalf of the appellant in support of this appeal inter alia submitted:
(i) Keeping in view the fact that the appellant did not conceal any material fact and the management was aware that the degree possessed by him was not granted by a recognised university, it is not a case where he can be said to have committed a fraud upon the institution.
(ii) In any event, as the management had permitted him to obtain a fresh degree which having been obtained, his services should have been directed to be continued.
(iii) The action of the management was mala fide as the departmental proceeding was initiated only after the change in management and in view of institution of a contempt petition against the management of the institution.
(iv) The appellant having served the institution for more than nine years from 1988, the High Court should have allowed the writ application.
15. Mr S.R Singh, the learned Senior Counsel appearing on behalf of the respondents, on the other hand, submitted:
(a) The appellant having not possessed any valid degree from a university recognised by the University Grants Commission, his appointment was illegal.
(b) Rule 3 of the 1983 Rules providing for a degree from a recognised university as a sine qua non for appointment to a post. A subsequent acquisition, therefore, would not come to his rescue.
(c) The appellant having not fulfilled the conditions precedent for regularisation of his services in terms of the provisions of the Uttar Pradesh Secondary Education Services Commission and Selection Boards Act, 1982, the High Court has rightly rejected the said prayer.
16. The qualifications for holding a post have been laid down under a statute. Any appointment in violation thereof would be a nullity.
17. It is a matter of some concern that appointments are being offered by the authorities of the State without verifying the fact as to whether the degree(s) possessed by the candidate(s) are valid or not. It was an ad hoc appointment. Why despite the same, he was allowed to obtain degree from another university is not known.
18. 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 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. v. Somvir Singh (2006) 5 SCC 493 and Post Master General, Kolkata v. Tutu Das (Dutta) (2007) 5 SCC 317.]
19. Various institutions have sprung up in different parts of India representing that their degrees are recognised. However, even no such representation appears to have been made to the appellant by the said institution. The Directory of Institutions for Higher Education merely gives details of the institutions. No statement was made therein that it was a recognised university.
20. Maithili Vishwa Vidyapeeth, Sankat Mochan Dham was a name given to an institution. It was not a university. It is said to have been founded in the year 1962. Admittedly, it is a privately managed institution. Although it offered a large number of courses like Madhyama, Visarad, Shastri, Acharya, Vidyabhaskar, Vidyaratna, Vidyavaridhi, Vidyavachaspati, Mahamahopadhyaya, the number of teachers therein were nine only. What sort of education was imparted therein is not known. How an institution could be run with a teacher strength of nine can very well be imagined.
21. It is not in dispute that the said institution was not recognised by any university. A degree is recognised only if it is granted by a university constituted in terms of the University Grants Commission Act, 1956 or under any State or parliamentary Act. No university can be established by a private management without any statutory backing.
22. The management of the school, when it came to learn that the appellant did not possess a degree of BEd from a recognised university, should have terminated his services forthwith. It did not do so for reasons best known to it. It has not been shown to us that the management of the school had any authority to allow the appellant to obtain the requisite degree from any other university during the tenure of his services. Even the Commission in its counter-affidavit, although otherwise supports the case of the appellant, did not say so.
23. Our attention has been drawn to a decision of the Punjab and Haryana High Court in Ram Bhagat Sharma v. State of Haryana (1997) 4 RSJ 134 (P&H) wherein it was directed:
“With a view to protect the interest of the students community, we direct the Government of Haryana to take steps to prevent future recruitment of persons possessing qualifications awarded by Hindi Sahitya Sammelan, Allahabad, and/or Hindi Sahitya Sammelan, Prayag, Allahabad, and at the same time take appropriate measures to dispense with the services of the unqualified teachers. For this purpose, the Government of Haryana is directed to issue written instructions to all concerned that in future no appointment be given to the persons possessing qualifications by the institutions referred to hereinabove. We also direct the Government of Haryana to take steps for terminating the services of all such teachers who have secured employment on the basis of degrees/diplomas/certificates issued by Hindi Sahitya Sammelan, Allahabad and/or Hindi Sahitya Sammelan, Prayag, Allahabad. However, those who have completed three years service should be given an opportunity to acquire the requisite qualification within a stipulated time. In case they fail to acquire such qualification, then appropriate order be passed to dispense with the services of such persons.”
We, with respect, do not subscribe to the said view. In any event, it is not a case where, this Court is to protect the interest of the students. The question herein is as to whether the services of the appellant can be said to have been illegally terminated or not.
24. A departmental proceeding against the appellant might have been initiated after the change of management. We will also assume that the said proceeding was initiated after the contempt proceeding was initiated. The appellant, however, has filed a writ application for issuance of or in the nature of a writ of mandamus. He, therefore, must establish existence of a legal right in himself and a corresponding legal duty in the State. If he did not possess the requisite qualification to hold a post, he could not have any legal right to continue. It was, therefore, immaterial as to why and when the said proceeding had been initiated against him.
25. Reliance placed by Mr P.S Patwalia on Shainda Hasan v. State of U.P (1990) 3 SCC 48, (1990) 13 ATC 577 is not apposite. Therein a concession was made on behalf of the State that the University had agreed that asking the appellant therein to leave the job after 16 years will be doing injustice to her. Such a view might have been taken by this Court in exercise of its extraordinary jurisdiction under Article 142 of the Constitution of India. The question, however, that arose therein was as to whether the Selection Committee could grant relaxation of the educational qualification vis-à-vis the experience required to be obtained. It was held that such a power did not exist in the Selection Committee.
26. It was, therefore, a case where relaxation in regard to experience was sought for and granted. It was not a case where the appellant therein lacked basic educational qualification. Herein, we are concerned with a case where the appellant lacked basic educational qualification.
27. Reliance has also been placed by Mr Patwalia on M.S Mudhol (Dr.) v. S.D Halegkar (1993) 3 SCC 591, (1993) 25 ATC 91. Therein a writ of quo warranto was sought for in a case involving the question as to whether a degree granted in favour of the appellant therein was equivalent to another degree or not. It was found that as public interest would not suffer, a writ of quo warranto may not be issued. The Court, therefore, did not exercise its discretionary jurisdiction.
28. Yet again reliance has been placed on Santosh Yadav v. State of Haryana (1996) 9 SCC 320. The appellant therein was having a diploma which was not approved by the State of Haryana and despite the same, teachers were appointed to meet the State's educational needs. The validity of the said degree was not in question. Not only appointments were made but also appointment to the appellant was offered in 1980. His services were confirmed in 1984 and sought to be terminated in the year 1990. This Court noticed that a relaxation was granted by the State itself which was available to her and others similarly situated. She, having obtained regularisation in her service, it was wrong and arbitrary on the part of educational department and the school to deprive her of the job. The same is not the case here.
29. A similar question, on the other hand, came up for consideration before this Court in Ravinder Sharma v. State of Punjab (1995) 1 SCC 138 wherein a three-Judge Bench held:
“12. The appellant was directly appointed. In such a case, the qualification must be either:
(i) A graduate intermediate second class, or
(ii) matric first class.
Admittedly, the appellant did not posses this qualification. That being so, the appointment is bad. The Commission recommended to the Government for relaxation of the qualification under Regulation 7 of the Regulations. The Government rejected that recommendation. Where, therefore, the appointment was clearly against Respondent 7, it was liable to be set aside. That being so, no question of estoppel would ever arise. We respectfully agree with the view taken by the High Court.”
30. Almost to the same effect is the decision of this Court in Mohd. Sartaj v. State of U.P (2006) 2 SCC 315, JT (2006) 1 SC 331 holding:
“21. … It is settled law that the qualification should have been seen which the candidate possessed on the date of recruitment and not at a later stage unless rules to that regard permit it. The minimum qualification prescribed under Rule 8 should be fulfilled on the date of recruitment. Equivalence of degree of Moallim-e-Urdu granted by Jamia Urdu, Aligarh with that of BTC in the year 1994 would not entail the benefit to the appellants on the date they were appointed. The appellants could not have been appointed to the post of assistant teachers without having training required under Rule 8. That being the case, the appointments of the appellants were dehors the Rules and could not be treated to be continued. For the aforesaid reasons, we do not find any substance in the appeals and they are, accordingly, dismissed.”
31. Recently again in Ashok Kumar Sonkar v. Union of India (2007) 4 SCC 54 it was held:
“16. Indisputably, the appellant herein did not hold the requisite qualification as on the said cut-off date. He was, therefore, not eligible therefor.”
32. Some arguments have also been advanced before us in regard to applicability of Removal of Difficulties Orders issued under the U.P Secondary Education Services Commission and Selection Boards Act, 1982. The services of the appellant had been terminated in the year 1997 and the cut-off date having been fixed on 1998, the said Act, in our opinion, is not applicable. The benefits rendered thereunder would not be not applicable in view of the Full Bench decision of the High Court in Radha Raizada v. Vidyawati Darbari Girls Inter College (1994) 1 All LJ 1077 (FB) which has been approved by this Court in Prabhat Kumar Sharma v. State of U.P (1996) 10 SCC 62
33. For the reasons aforementioned, there is no merit in this appeal. The appeal is dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.
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