PETITIONER: S.A. VENKATARAMAN Vs. RESPONDENT: THE UNION OF INDIA AND ANOTHER. DATE OF JUDGMENT: 30/03/1954 BENCH: <NAME>, B.K. BENCH: <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, B. CITATION: 1954 AIR 375 1954 SCR 1150 CITATOR INFO : F 1956 SC 66 (17,26) F 1958 SC 36 (25) R 1959 SC 375 (30) R 1960 SC 493 (11) RF 1961 SC 29 (22) D 1961 SC 751 (24) ACT: Constitution of India, art. 20(2)-- Enquiry made under Public Servants (Inquiries) Act , 1850-Whether amounts to prosecution and punishment within the meaning of art. 20(2). HEADNOTE: Held that an enquiry made and concluded under -the Public Servants (Inquiries) Act , 1850 (A-at XXXVII of 185O), does not amount to prosecution and punishment for an offence as contemplated by art. 20(2) of the Constitution. <CITATION> ( S.C.R. 703); <NAME> on Constitutional Law, p. 528; and <NAME> v. <NAME> ([18951 A.C. 229); <CITATION> for India (64 I.A. 55); <ORG> Act, 1935, s. 240(3); referred to. JUDGMENT:

CRIMINAL ORIGIINAL JURISDICTioN: Petition No. 72 of 1954. Petition under article 32 of the Constitution for the enforcement of fundamental rights.

<NAME>, <NAME> and <NAME> (<NAME> and <NAME>, with them) for the petitioner.

<NAME>, Attorney-General for India and <NAME>, Solicitor-General for India (<NAME> and <NAME>, with them) for respondent No. 1. 1954. March 30. The Judgment of the Court was delivered by <NAME> is a. petit ion under article 32 of the Constitution, praying for a writ, in the nature of certiorari, for calling up the records of certain criminal proceedings started against the petitioner by the Special, judge. <ORG>, Delhi, and for quashing the safe on the ground that these proceedings are without jurisdiction, having been commenced in violation of the fundamental right of the petitioner guaranteed under article 20(2) of the Constitution. The petitioner was a member of <ORG> and till lately was employed as Secretary to <ORG> in <ORG>. Certain imputations of misbehaviour by the petitioner, while holding offices of various descriptions under <ORG>, came to the notice of <ORG> and the latter being satisfied that there were prima facie good grounds for making an enquiry directed a formal and public enquiry to be made as to the truth or falsity of the allegations made Against the petitioner, in accordance with the provisions of the Public Servants (Inquiries) Act of 1850. The substance of the imputations was drawn up in the form of specific charges and Sir <NAME>, an ex-Chief Justice of <ORG>, was appointed Commissioner under section 3 of the said Act to conduct the enquiry and report to the Government, on the result of the same, his opinion on the several articles of charge formulated against the petitioner. The order of <ORG> directing the enquiry is dated the 21st February, 1953. The charges were drawn up under six heads with various sub-beads under each one of them. The first charge alleged that the petitioner was guilty of misbehaviour inasmuch as he showed undue favour to Messrs. <ORG> in the matter of issue of import and export licences, by abusing his position as a public servant in the discharge of his duties, that is, by accepting illegal gratification or valuable things for import and export licences recommended or to be recommended by him. The second charge was to the effect that the petitioner accepted or obtained valuable things for himself and other members of his family, without paying for them, on different dates from Messrs. <ORG> for recommending their applications for import licences and export permits. The fourth and the fifth charges  were similar in nature to charges 1 and 2 except that they related to the Petitioners dealings with another firm known as <ORG>.

The enquiry proceeded in the manner laid down in ,the Public Servants (Inquiries) Act . The charges were read out to the petitioner and his plea of "not guilty" was formally recorded. Evidence was adduced both by the prosecute or and the defence and the witnesses on both sides were examined on oath and cross. examined and re-examined in the usual manner. The Commissioner found, on a consideration of the evidence, that four of the charges under various sub-heads were proved against the petitioner and submitted a report to that effect to the Government on the 4th of May, 1953. By a letter dated the 15th of May, 1953, the Government informed the -petitioner that, on careful consideration of the report, the President accepted the opinion of the Commissioner and in view of the findings on the several charges arrived at by the latter was provisionally of opinion that the petitioner should be dismissed. Opportunity was given to the petitioner by this letter in terms of article 311(2) of the Constitution to show cause against the action proposed to be taken in regard to him and it was stated that any representation, which he might desire to make, would be taken into consideration before the final order was passed. The petitioner, it seems, did make a representation which was considered by the Government and after consultation with <ORG> the President finally decided to impose the penalty of dismissal upon the petitioner. The order of dismissal was passed on the 17th of September, 1953. On the 23rd February, 1954, the police submitted a charge-sheet against the petitioner before the Special Judge, <ORG>, Delhi, charging him with offences under sections 161 / 165 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act and upon that, summons were issued by the learned Judge directing the petitioner to appear be-fore his court on the 11th of March. 1954. , It is the legality of this proceeding that has been challenged before us in this writ petition. The petitioner's case, in substance, is that the proceedings that have been started against him are without jurisdiction inasmuch as they amount to fresh prosecution for offences for which he has been prosecuted and punished already and this comes within the prohibition of article 20(2) of the Constitution. The sole.-point for our consideration is, whether in the events that have happened in this case, there has been a violation of the fundamental right of the petitioner under article 20(2) of the Constitution which would justify the issue of a writ for enforcement of the same?

The scope and meaning of the guarantee implied in. article 20(2) of the Constitution has been indicated with sufficient fullness in the pronouncement of this court in <NAME> The State of Bombay(1). . The roots of the principle, which this clause enacts, are to be found in the well established rule of English law which finds expression in the maxim "Nemo debet bis vexari"-a man must not be put twice in peril for the same offence. If a man is indicted again for the same offence in an English court, he can plead, as a complete defence, his former acquittal or conviction, or as it is technically expressed, take the plea of "autrefois acquit" or "autrefois convict". The corresponding provision in the Federal Constitution of the U.S.A. is contained in the Fifth Amendment, which provides inter alia: "Nor shall any person be subjected for the same offence to be put twice in jeopardy of life and limb". This principle has been recognised and adopted by <ORG> and is embodied in the provisions of section 26 of the General Clauses Act and section 403 of the Criminal Procedure Code.

Although these were the materials which formed the background of the guarantee of the fundamental right given in article 20(2) of the Constitution, the ambit and contents of the guarantee, as this court pointed out in the case referred to above, are much narrower than those of the common law rule in England or the doctrine of "double jeopardy" in the American (1)  S.C.R- 703.

<NAME>

Constitution. Article,20(2) of our Constitution,it is to be noted, does not contain the principle of "autrefois acquit" at all. It seems that our Constitution makers did not think it necessary to raise one part of the common law rule to the level of a fundamental right and thus make it immune from legislative interference. This has been left to be regulated by the general law of the land. In order to enable a citizen to invoke the protection of clause (2) of article 20 of the Constitution, there must have been both prosecution and punishment in respect of the same offence. The words prosecuted and punished" are to be taken not district butively so as to mean prosecuted or punished. Both the factors must co-exist in order that the operation of the clause may be attracted. The position is also different under the American Constitution. There the prohibition is not against a second punishment but against the peril in which a person may be placed by reason of a valid indictment being presented against him, before a competent court, followed by proper arraignment and plea and a lawful impanelling of the jury. It is not necessary to have a verdict at all(1).

It has also been held by this court in <NAME> case(2) that the language of article 20 and the words actually used in it afford a clear indication that the proceedings in connection with the prosecution and punishment of a person must be in the nature of a criminal proceeding, before a court of law or judicial tribunal, and not before a tribunal which entertains a departmental or an administrative enquiry even though set up by a statute, but which is not required by law to try a matter judicially and on legal evidence. In that case the proceedings were taken under the Sea <ORG> Act before a <ORG> authority who ordered confiscation of goods. It was held that such proceedings were not "Prosecution", nor the order of confiscation a "punishment" within the meaning of article 20(2) inasmuch as the <ORG> authority was not a court or a judicial tribunal and merely exercised administrative powers vested in him for revenue purposes.

(1) Vide Wills on Constitutional Law, p. 528. (2) [1953] S.C.R.- 703.

The facts of this case are no doubt different and the point that requires determination is, whether the petitioner can be said to have, satisfied all the conditions that are necessary to enable him to claim the protection of article 20(2) The charges, upon which the petitioner is being prosecuted now, are charges under sections 161 and 165 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act. We will assume for our present purpose that the allegations upon which these charges are based are substantially the same which formed the subject matter of enquiry under the Public Servants (Inquiries) Act of 1850. The question narrows down to this : whether the petitioner had already been (1) prosecuted and (2) punished for these offences ?

Mr. <NAME>, appearing on behalf of the petitioner, contends that his client was, in fact, prosecuted for these identical offences before the Commissioner appointed under Act XXXVII. of 1850. This, it is argued, was not a mere departmental enquiry of the type referred to in <NAME> case(1). The Commissioner was a judicial tribunal in the proper sense of the expression. He had to adjudicate on the charges judicially, on evidence, recorded on oath, which he was authorised by law to administer. The prosecution was conducted by a prosecutor appointed under the Act, charges were read out to the accused person and his plea was taken; witnesses on both sides were examined on oath and they were cross-examined and re-examined. The Commissioner had all the powers of a court; he could summon witnesses, compel production of relevant documents and punish people for contempt. At the close of the enquiry, the Commissioner did record his finding against the petitioner on some of the charges. He had undoubtedly no power to impose any punishment and had only to forward his report to the Government. Under section 22 of the Act, however, the Government was entitled to pass such orders within its authority, as it considered proper and in exercise of this authority the President did impose upon the petitioner the penalty of dismissal.

(1) [1953] S.C. R. 7o3.

It is immaterial, it is argued, for the purPose of article 20(2) of the.constitution that the -prosecution was before one authority and punishment was inflicted by another. The petitioner was both prosecuted and punished and he is sought to be prosecuted on the same chages over again. This constitutes, according to the learned counsel, a clear violation of the guarantee implied in article 20(2) of the constitution. The questions raised are undoubetdly of some importance and require to be carefully exaimined. It is true that the Commissioner appointed to make an enquiry under Act XXXVII of 1850 is invested with some of the powers of a court, particularly in the matter of summoning witnesses and compelling the production of documents and the report, which he has to make has to be made on legal evidence adduced under sanction of oath and tested by cross-examination. But from these facts alone the conclusion does not necessarily follow that an enquiry made and concluded under Act XXXVII of 1850 amounts to prosecution and punishment for an offence as contemplated. by article 20(2) of the Constitution. In order to arrive at a proper decision on this point, it is necessary to examine the entire background-of the provisions relating to enquiry into the conduct of public servants and to ascertain the exact scope and purpose of the enquiry as is contemplated by Act XXXVII of 1850 and the ultimate result that flows from it.

It is a well established principle of English law that, except where it is otherwise provided by a statute, all public officers and servants of the <ORG> hold their appointments at the pleasure of the <ORG>. Their services can be terminated without assigning any reason and even if any public servant considers that he has been unjustly dismissed, his remedy is not by way of a law suit but by an appeal of an official or political character(1). This principle of law was applied in lndia ever since the advent of British rule in this country and the servants in the employ, of <ORG> also came within the purview of this (1) Vide Shenton v. <NAME> [1895) A.C. 229.

rule. It is to be remembered that it was during the period of <ORG> that the Public Servants (Inquiries) Act was passed in 1850. The object of the Act, as stated in the preamble, was to regulate enquiry into the behaviour of public servants, not removal from service without the sanction of the <ORG>. The enquiry was quite optional with the <ORG> and did not affect in any way the powers of the <ORG> to dismiss its servants at pleasure and this was expressly provided by section 25 of the Act, the wording of which is as follows: " Nothing in this Act shall be construed to affect the authority of the <ORG> to. suspending or removing any public servant for any cause without an enquiry under the Act. "

After assumption of <ORG> by the <ORG>, this rule of English common law continued unaltered till 1919 when section 96B was introduced by the amended Government of India Act of that year. Sub-section (1) of section 96B of the Government- of India Act, 1919, runs as follows:

" Subject to the provisions of this Act and of rules made thereunder, every person in the civil service of the <ORG> in India holds office during His Majesty's pleasure and may be employed in any manner required by a proper authority within the scope of his duty, but no person in that service may be dismissed by any authority subordinate to that by which he was appointed ....................." Thus one restriction imposed by this section upon the unfettered right of the Government to dismiss its servants at its pleasure, was that no servant could be dismissed by any authority subordinate to that by which he was appointed. The section by its opening words also makes the exercise of the power subject to the rules made under the Act and it was in pursuance of the provision of section 96-B(2) that the Civil Service (Classification, Control and Appeal) Rules were framed which with the later amendments are in force even now. Part XII of these rules deal with Conduct and ]Discipline of Civil Servants and rule 49 of this part lays down that the different penalties provided, 1l58 by the different clauses of the rule may, for good and sufficient reasons, be imposed upon members of the services comprised in clauses (1) to (5) in rule 14. These penalties include, amongst others, censure, withholding of increment, dismissal, reduction in rank and removal. Rule 55, which finds a place in the same chapter, lays down the procedure to be followed before passing an order of dismissal, removal or reduction in rank against any member of the service. No such order shall be passed unless the person concerned has been informed,, in writing, of the grounds on which it is proposed to take action against him and has been afforded an adequate opportunity of defending himself. An enquiry has to be made regarding his conduct and this may be done either in accordance with. the provisions of the Public Servants (Inquiries) Act of 1850 or in a less formal and less public manner as is provided for in the rule itself. These rules have no statutory force and it was held by <ORG> that when an officer was dismissed from service without complying with the provisions of these rules, he had no right of action against: the <ORG>(1). In other words, the rules, which were not incorporated in a statute, did not impose any legal restriction upon the right of the <ORG> to dismiss its servants at pleasure. The position was altered to some extent in the Government of India Act, 1935, and in addition to the restriction imposed by section 96-B(1) of the Government of India Act, 1919, that a civil servant could not be dismissed by an authority subordinate to that by which he was appointed, a further statutory provision was made(2), that a civil servant could not be dismissed or reduced in rank unless the person concerned was given a reasonable opportunity of showing cause against the action proposed to be taken against him. Article 311(2) of the present Constitution has further added the word " removal " after " dismissal " and (1) <CITATION> for India, 64 I.A. 55.

(2) Vide section 240(3) Of the Government of India Act, 1935.

before reduction in rank " and thus in all the three cases which are covered by rule 55 of the Civil Services Rules, a civil servant has now a constitutional right to claim a - reasonable opportunity of showing cause against the action proposed to be taken in regard to him.

As the law stands at present, the only purpose, for which an enquiry under Act XXXVII of 1850 could be made, is to help the <ORG> to come to a definite conclusion regarding the misbehaviour of a public servant and thus enable it to determine provisionary the punishment which should be imposed upon him prior to giving him a reasonable opportunity of showing cause, as is required under article 311(2) of the Constitution. An enquiry under this Act is not at all compulsory and it is quite open to the <ORG> to adopt any other method if it so chooses. It is a matter of convenience merely and nothing else. It is against this background that we will have to examine the material provisions of the Public Servants (Inquiries),Act of 1850 and see whether from the. nature and result of the enquiry which the Act contemplates it is at all possible to say that the proceedings taken or concluded under the Act amount to prosecution and punishment for a criminal offence. It may be pointed out that the words "prosecution" and "punishment" have no fixed connotation and they, are susceptible of both a wider and a narrower meaning; but in article 20(2) both these words have been used with reference to an "offence" and the word "offence" has to be taken in the sense in which it is used in the General Clauses Act as meaning I an act or omission made punishable by any law for the time being in force." It follows that the prosecution must be in reference to, the law which creates the offence and the punishment must also be in accordance with what that law prescribed The acts alleged to have been committed by, the petitioner in the present case and on the basis of which the charges have been framed against him do come within the definition of "offences" described in sections 161 and 165 of the Indian Penal Code and   section 5(2) of the Prevention of Corruption Act. The Public Servants (Inquiries) Act does not itself create any offence nor does it provide any, punishment for it. Rule 49 of the Civil Services Rules mentioned above merely speaks of imposing certain penalties upon public servants for good and sufficient reasons. The rule does not mention any particular offence and obviously can create none. It is to enable the <ORG> to come to the conclusion as to whether good and sufficient reasons exist, within the meaning of rule 49 of the Civil Services Rules, for imposing the penalties of removal, dismissal or reduction in rank upon a public servant that an enquiry may be directed under Act XXXVII of 1850. A Commissioner appointed under this Act has no duty to investigate any offence which is punishable under the Indian Penal. Code or the Prevention of Corruption Act and he has absolutely no jurisdiction to do so. The subject-matter of investigation by him is the truth or otherwise of the imputation of misbehaviour made against a public servant and it is only as instances of misbehaviour that the several articles of charge are investigated, upon which disciplinary action might be taken by the <ORG> if it so chooses. The mere fact that the word-"prosecution" has been used, would not make the proceeding before the Commissioner one for prosecution of an offence. As the Commissioner has to form his opinion upon legal evidence, he has been given the power to summon witnesses, administer oath to then and also to compel production of relevant documents. These, may be some of the trappings of a judicial tribunal, but they cannot make the proceeding any- thing more than a mere fact finding enquiry. This is concluisively established by the provisions of section 21 and 22 of the Act. At the close of the enquiry, the Commissioner has to submit a report to the <ORG> regarding his finding on each one of the charges made: This is a mere expression of opinion and it lacks both finality and authoritativeness which are ,he essential tests of a judicial pronouncement. The )pinion is not even binding on the <ORG> Under section 22 of the Act, the <ORG> can, after receipt of the report, call upon the Commissioner to take, further evidence or give further explanation of his opinion. When Special Commissioners are appointed, their report could be referred to the court or other authority to which the officer concerned is subordinate for further advice and after taking -the opinion of the different authorities and persons, the <ORG> has to decide finally what action it should take.

Then again neither section 21 nor section 22 of the Act says anything about punishrment. There is no to express any power in the Commissioner even opinion about punishment and section 22 only contemplates such order as the <ORG> can pass in its capacity as employer in respect to servants employed by it. As has been said already, an order of dismissal of a servant cannot be regarded as a punishment for an offence punishable under particular sections of the Indian Penal Code or of the Prevention of Corruption Act . A somewhat analogous case would be that of a member of the <ORG> whose name is struck off the rolls on grounds of professional misconduct, in exercise of disciplinary jurisdiction by the proper authority. The professional misconduct might amount to a criminal offence, but if we are to accept the petitioner's contention as correct, the man cannot be prosecuted for it, even though the authority inflicting the penalty of removal was not a competent court to investigate any criminal charge nor was the punishment imposed in exercise of disciplinary jurisdiction a punishment for an offence.

In our opinion, therefore, in an enquiry under the Public Servants (Inquiries) Act of 1850, there is neither any question of investigating an offence in the sense of an act or omission punishable by any law for the time being in force, nor is there any question of imposing punishment prescribed by the law which makes that act or omission an offence. The learned Attorney General raised a point before us that the test of the guarantee under article 20(2) is whether the person has been tried and punished, not for the same act, but for the same offence and his contention is that the offences here are different, though they may arise -out of the same acts. In the view that we have taken this question does not arise for consideration at all. It is also not necessary to express any opinion on the question raised by the learned counsel for the petitioner as to whether for the purpose of attracting the operation of article 20(2) the punishment must be imposed by the same authority before which the prosecution was conducted. The result is that, in our opinion, the petition fails and in dismissed.

Petition dismissed.

APPENDIX PROCEEDINGS AT THE SITTING OF THE SUPREME COURT ON NOVEMBER 5,1954.

<NAME>, <NAME> <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>.

<NAME> are meeting here this morning on a very sad occasion to mourn the death of our brother, Mr. Justice <NAME>, who suddenly collapsed this morning at about 1 A.m. During my absence from Delhi to Patiala, where I had gone to visit <ORG>, he was taken ill and was absent from <ORG> on Monday last. On my- return I made enquiries from him and he told me that he had slight congestion in the lungs but that he was feeling much better and would in all likelihood attend <ORG> on Friday. I saw him myself on Wednesday evening. He was quite cheerful and looked well, and he told me that he was feeling much better and would in all likelihood attend <ORG> on Friday, failing that on Monday. On Thursday morning his condition had much improved, but late in the evening he felt uncomfortable and was removed to hospital,, where he suddenly collapsed. This is the short story of the termination of a successful career on the Bench and at the <ORG> of a very devoted and patriotic citizen of India. Shri <NAME> was born on the 3rd July, 1891. After a distinguished <ORG> career and an equally distinguished career at the <ORG>, he was raised to the Bench of the Oudh Chief <ORG> in 1940 and became its Chief Judge in 1946. He was appointed Senior Judge of the Allahabad High <ORG> in 1948 on the amalgamation of the two High <ORG>s in the United Provinces. On retirement from the High <ORG>, he was appointed a member of <ORG> and on the 8th September, 1952, he became a Judge of this <ORG>. Prior to his appointment as a Judge, he was a Member of <ORG> for two years. He war, also Chairman of <ORG> and <ORG>, <ORG>, since 1942. He received the honour of Knighthood of the Order of St. John in 1947 in recognition of his humanitarian services. He was interested in educational activities and was a member of the <ORG> of the Aligarh <ORG> and a member of <ORG> of that <ORG>. He had varied social and cultural interests which are quite well known and it is hardly necessary to refer to them. Both as a Member of the <ORG> and the Bench, Shri <NAME> distinguished himself by his vast learning, his sense of detachment and high judicial integrity. He was always courteous and patient in his relations with the <ORG>, as in his relations with his colleagues. If I may say so, courtesy was writ large on his face. His full grasp of facts, his thorough knowledge of law and his quick prception of the real points in a case were of great assistance to us in dealing with the many complicated questions that arose for determination in this <ORG>. He had a singularly equable and gentle temperament. His simple and unaffected manner attracted friends in every sphere and he will be very much missed not only by me and his colleagues in this <ORG> but also in the social life of this city, which would be distinctly poorer for his loss.

We have lost an esteemed colleague and a learned, just and upright Judge, and the country has lost a patriotic and great citizen. He leaves behind his widow, a son, and a daughter. We all mourn his loss with the members of his family and offer condolence to all of them, I am sure gentlemen of the <ORG> will desire to associate themselves with the <ORG> in conveying an expression of heart-felt sympathy and condolence to the bereaved family. May his soul rest in peace.

The <ORG> will remain closed today as a mark of respect to the deceased.

<NAME>, ATTORNEY-GENERAL FOR INDIA.--My Lords, the <ORG> respectfully associates itself with deep regret in your Lordships expression of grief and sympathy. I recall how about three years ago this <ORG> assembled to mourn the death of its first Chief Justice. The hand of fate has smitten with equal suddenness on this occasion. It is a little over two years ago that his Lordship became a member of your Lordship <ORG>. His affable personality, his genial and his uniform courtesy made a deep impression on all those who came into contact with him. Members of the <ORG> will never forget the keen practical sense which he brought to bear on all questions that came before him, the patience with which he heard them, and the invariable kindness he showed to them.

The <ORG> tenders its deep and heart-felt sympathy to those near and dear to him in their great, sudden and irreparable loss.

END OF VOL. V.


REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1272 OF 2011 State of Orissa & Anr. ...... Appellants Versus <NAME> ...... Respondent WITH Civil Appeal Nos. 1246-1271 of 2011 Civil Appeal Nos. 1273-1274 of 2011 Civil Appeal Nos. 1277-1281 of 2011 Civil Appeal Nos. 1283 of 2011 Civil Appeal Nos. 1285-1287 of 2011 Civil Appeal Nos. 1289-1293 of 2011 Civil Appeal Nos. 1295-1300 of 2011 Civil Appeal Nos. 1302-1313 of 2011 Civil Appeal Nos. 1315-1321 of 2011 J U D G M E N T

Dr. <NAME>, J.

1. All the aforesaid appeals have been filed against the judgments and orders of <ORG> at Cuttack which have been passed placing reliance on its earlier judgments in similar cases. The facts and legal issues involved herein are the same. Thus, they are heard together and are being disposed of by the common judgment and order. However, for convenience, Civil Appeal No. 1272 of 2011 is taken to be the leading case and some reference to facts would be taken from other appeals as and when necessary in the context of legal issues involved herein.

2. The appeal has been preferred against the judgment and order dated 22.3.2006 of <ORG> at Cuttack in Writ Petition (Civil) No. 14157 of 2005.

FACTS:

3. (A) The respondent was appointed as a Lecturer in <ORG>, Niali, on 9.7.1979 and her appointment as such was approved by the Director of <ORG>, Orissa, a statutory authority - the appellant No. 2, vide order dated 18.12.1985, and she was granted the benefit of receiving 1/3rd grant-in-aid.

(B) In order to provide better facilities to teachers and enhance the standard of higher education, <ORG>, came out with a Notification dated 6.10.1989 with a revised pay scale enforceable with effect from 1.1.1986 as per the recommendations of <ORG>. However, the said Notification was applicable only in such cases where the post has been granted the benefit of grant-in-aid Scheme by 1.4.1989 and person manning that post had a good academic record i.e. 54 per cent or its equivalent grade in a Masters' Course.

(C) Respondent did not make any representation before any authority to get the benefit of the said Notification dated 6.10.1989, rather approached <ORG> on 11.11.2005 by filing Writ Petition (Civil) No. 14157 of 2005 seeking a direction to <ORG> to pay the pre-revised pay scale with effect from 1.1.1986 placing reliance on the various orders passed by <ORG> earlier in cases of other persons e.g. in case OJC No. 3705 of 1987.

(D) The present appellants contested the said writ petition pointing out that the respondent had secured only 40 per cent marks in her Master's course. She was by no means, eligible for appointment. Her appointment, being not in consonance with law, remained illegal.

(E) <ORG> placing reliance on its earlier judgments, allowed the said writ petition giving the benefit of the U.G.C. pay scale to her w.e.f. 1.6.1984. Hence, this appeal.

4. The submissions made in all these appeals, particularly by the respondents are that <ORG> had been dealing with the subject matter for a long time and judgments of <ORG> have been upheld by this court. Once the SLPs against the judgments of <ORG> which had been relied upon by <ORG> while deciding these cases, have been dismissed in limine, judicial discipline and decorum demand that this Court should follow the same order. Thus, the judgments and orders impugned herein did not warrant any interference.

5. On the other hand, it has been submitted by learned counsel for the appellants that factual and legal issues involved in these cases have never been considered either by <ORG> or by this Court in proper perspective. For example, in Civil Appeal No. 1274 of 2011, <ORG> of Orissa v. Mrs. <NAME>, the matter had initially been filed before <ORG>. Therein, the question arose as to whether the respondent herein had been appointed by following the procedure prescribed by the law for making the appointment. As the <ORG> had raised the issue that respondent had been appointed without following any procedure known in law for this purpose her appointment itself was illegal and void. The vacancy on the post of Lecturer in Chemistry in <ORG>, Bolgarh, Dist. Khurda was never advertised nor were the names of eligible candidates requisitioned from <ORG>. Admitted facts in the said case remain that the vacancy was advertised merely by affixing notices on the notice board of the <ORG> and of <ORG> inviting applications from the eligible candidates. More so, the respondent had not even faced an interview before <ORG>, as envisaged by the Statutory Rules in force at the relevant time, rather she had been interviewed merely by representatives of the Committee of Management of the <ORG>. The <ORG> accepted the case of the <ORG> to that effect, but granted her reliefs sought by her.

<ORG> did not even consider the issue of validity of her appointment.

6. It is further submitted that none of the courts till today has considered that in case the institution has been accorded the benefit of grant-in-aid scheme subsequent to 1.6.1986, there could be no liability of the government to contribute partly or fully to the salary of any employee of the said college, prior to the date of grant of such benefit, whether <ORG> pay scale could be given prior to the date of according grant-in-aid benefits. In Civil Appeal No. 1318 of 2011, State of Orissa v. Smt. <NAME>, the post of respondent was included under grant-in-aid scheme w.e.f. 1.6.1988. She did not possess the requisite qualifications and the said respondent was put in grant-in-aid with effect from 1988 though vide impugned judgment she has been given benefit from 1.1.1986.

7. In all these cases, admittedly most of the respondents did not possess the minimum eligibility, i.e., 54% marks in Master's course and some of them acquired it at a much later stage. It is pointed out by the learned counsel for the respondents herein, that <ORG> at Bhubneshwar had condoned the deficiency of eligibility-

qualification by passing general orders from time to time. However, they failed to point out any statutory provision conferring competence upon the <ORG> to condone the deficiency, what to talk of reasonableness or propriety in condoning such deficiency. It is evident from Civil Appeal No. 1280 of 2011, State of Orissa & Ors.

v. Dr. <NAME>, that the respondent was appointed as a Lecturer in Political Science in <ORG> Begunia, Khurda, on 5.9.1978 and the post which he held came into grant-in-aid scheme on 1.6.1984. He acquired the degree of Ph.D. in 2000. His deficiency in qualification was condoned after about 10 years by <ORG> on 28.10.1987, and he has also been granted the benefit of <ORG> pay scale w.e.f. 1.1.1986.

8. There are letters/circulars issued by the <ORG> as well as by the State of Orissa for condonation of the deficiency. However, the question does arise as to whether this kind of orders can be given effect to or be considered by the courts to grant a relief to the persons whose appointments had been illegal for want of eligibility and for not following the procedure prescribed by law, i.e. advertisement, etc.

9. Most of the petitions had been filed before <ORG> after 10-15-20 years for grant of <ORG> pay scales w.e.f. 1.1.1986 and to pay the arrears etc. <ORG> in all the cases granted the same with effect from 1.1.1986 or even with effect from 1.6.1984, without considering the issue of delay and laches, merely placing reliance upon its earlier judgments. Thus, the question does arise as to whether the delay and laches could be condoned all together giving the respondents the impetus of the earlier judgments in cases of persons who had been diligent enough to approach the <ORG> within a reasonable period.

10. It has been further submitted by learned counsel for the respondents that teachers in government colleges have also been granted the said benefit though not entitled and the respondents herein cannot be given hostile treatment in case the impugned judgments and orders herein are not upheld. Thus, the question does arise as to whether Article 14 of the Constitution is meant to perpetuate an illegality.

11. Considering the rival submissions made by learned counsel for the parties, we are of the view that as the questions raised hereinabove had never been considered by any of the courts and involve substantial questions of law of public importance, the cases require proper adjudication.

12.(A) STATUTORY PROVISIONS - RELEVANT PARTS:

The Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 (hereinafter called `Rules 1974').

Rule 2 (i) - "University" means <ORG>, <ORG>, <ORG> and <ORG>.

Chapter II provides for establishment of <ORG> and Rule 4 reads that there will be <ORG> constituted by the <ORG> for the purpose of making appointments of teaching and other staffs in aided schools.

Rule 5(1) thereof provides that the educational institutions would determine the vacancies subject-wise and indicate the same to the Director of Education who shall process the applications so received for those posts and transmit the same to <ORG> after determining the genuineness of the vacancies in a particular college.

Rule 5(2) - <ORG> shall, on receipt of applications and certificates referred to in Sub-rule (1) recommend a list of candidates in order of merit strictly according to the number of vacancies, to the concerned Directors who shall thereupon, allot candidates to the concerned institutions strictly in order of merit as per vacancy.

Rule 5(3) - Appointment shall be made by Managing Committee or <ORG> as the case may be, of the candidates allotted under Sub-rule (2).

Rule 6 provides for Procedure of Selection - (1) <ORG> shall, at such intervals as it deems proper, call for applications for various posts in respect of which vacancies are likely to arise in the course of the next one year in such manner as may be determined in the regulation of <ORG>.

(2) <ORG> shall conduct examinations including a viva voce examination of any candidate or all candidates with a view to determining their merit and suitability in the matter appointed in its regulations.

Rule 7 - Condition of eligibility of candidates - Provided that upper age limit may be relaxable in respect of candidates belonging to Scheduled Castes, Scheduled Tribes and such other categories as may be specified by <ORG> from time to time for recruitment to the similar or corresponding post under the <ORG>.

The Orissa Aided Educational Institutions Employee's Common Cadre and Inter transferability Rules, 1979 (hereinafter called Rules 1979), make the post of teaching staff transferable to any other college, affiliated to any other University.

In view of the above, <ORG> means all the four universities of Orissa, not only Utkal <ORG> at Bhubneshwar. It is <ORG> constituted under the Rules 1974, which could call the candidates for interview/tests and make the selection according to merit. <ORG> shall make the teachers available to individual colleges as per their need. Thus, <ORG> does not have a right to make the appointment of a teacher of its own. More so, the teachers so appointed are liable to be transferred throughout the State of Orissa even to a College which may be affiliated to either of the aforesaid universities.

(B) RELEVANT PART OF NOTIFICATIONS/ CIRCULARS/ LETTERS:

(i) Government of Orissa - Education and Youth Services Department Resolution dated 5.9.1978 dealt with the subject-

qualification for recruitment of lecturers in affiliated colleges of the State of Orissa and the relevant part reads as under:

"A consistently good academic record with at least Ist or high second class (B in the seven point scale) at the Master's degree in a relevant subject. In other words, <ORG> intended to determine high second class as average of minimum percentage of marks of second division and first division as (48+60) 54%....."

(ii) <ORG>, August 19, 1983 published a resolution dated 16.7.1983 prescribing the eligibility for appointment of teachers in affiliated colleges. The relevant part reads as under:

(a) Candidate should have an M.Phil degree or a recognized degree beyond Master's level with atleast a second class Master's degree;

(b) A candidate not holding an M.Phil degree should possess a high second class Master's degree i.e. 54% of marks and a second class Honours/Pass in the B.A./B.Sc./B.Com examination; or

(c) A candidate not holding an M.Phil degree but possessing a second class Master's degree should have obtained a first class in the Honours/Pass in B.A./B.Sc./B.Com examination.

(iii) <ORG> passed a resolution dated 20.8.1986 and condoned the deficiency of qualification of different non-government college teachers.

(iv) <ORG>, <ORG> Circular dated 27.11.1986 dealt with the subject -

Continuance of under-qualified teachers in Non-Government Colleges-Eligibility to receive grant-in-aid from Government. The relevant part reads as under:

"The decision of <ORG> communicated to Government in their letter NO. A.13570/86 dated 20.8.86 cannot be treated as a valid order of condonation of under qualification unless the concurrence of University Grants Commission has been obtained. The Universities which have made order of condonation after the concerned <ORG> may refer the matter to <ORG> and secure their concurrence for condonation."

(v) <ORG>, <ORG> Circular dated 23.4.1987 provides that the requirement of seeking condonation by two other universities had been withdrawn.

(vi) Resolution dated 6.10.1989 published in the <ORG> on 3.11.1989 provided for the revised pay scale of teachers i.e. <ORG> pay scales w.e.f. 1.1.1986.

(vii) Resolution dated 6.11.1990 provides for grant of <ORG> pay scales as <ORG> has condoned the deficiency of eligibility i.e. qualifications.

The aforesaid Circulars/Letters fixed the minimum 54% marks in Master's Course as eligibility and the University has condoned the deficiency in eligibility i.e. educational qualification. The <ORG> pay scale granted by the Notification dated 6.10.1989 could be made available w.e.f. 1.1.1986.

13. While dealing with the aforesaid issues we have taken into consideration all submissions made by all the counsel involved in these group matters. However, the main arguments have been advanced by <NAME>, Ms. <NAME> and <NAME>, Advocates for the <ORG> and <NAME>, <NAME>, <NAME>, Senior Advocates, <NAME>, <NAME>, and <NAME>, Advocates for the respondents.

EDUCATION:

14. Education is the systematic instruction, schooling or training given to the young persons in preparation for the work of life. It also connotes the whole course of scholastic instruction which a person has received. Education connotes the process of training and developing the knowledge, skill, mind and character of students by formal schooling. The excellence of instruction provided by an educational institution mainly depends directly on the excellence of the teaching staff. Therefore, unless they themselves possess a good academic record/minimum qualifications prescribed as an eligibility, it is beyond imagination of anyone that standard of education can be maintained/enhanced. "We have to be very strict in maintaining high academic standards and maintaining academic discipline and academic rigour if our country is to progress".

"Democracy depends for its very life on a high standard of general, vocational and professional education. Dissemination of 'learning with search for new knowledge with discipline all round must be maintained at all costs". (Vide: <CITATION> , AIR 1976 SC 10; <ORG> v.

<ORG>., AIR 1987 SC 311; <CITATION> ., AIR 1987 SC 2034; and Director (Studies), Dr. Ambedkar Institute of Hotel Management, Nutrition & Catering Technology, Chandigarh & Ors. v. <NAME>, ).

15. <CITATION> ., AIR 1998 SC 1153, this Court extensively quoted the Report of <ORG>, i.e., Radhakrishnan Commission, wherein grave concern was expressed observing that "there is negligence in applying criteria of merit in the selection" of teachers.

The <ORG> also quoted from another Report of the Committee on some problems of University Administration 1964(1967) as:

"The most important factor in the field of higher education is the type of person entrusted with teaching. Teaching cannot be improved without competent teachers. ... The most critical problem facing the universities is the dwindling supply of good teachers. ... The supply of the right type of teachers assumes, therefore, a vital role in the educational advancement of the country. The <ORG> further observed as under:

"University imparts education which lays foundation of wisdom. Future hopes and aspiration of the country depends on this education, hence proper and disciplined functioning of the educational institutions should be the hallmark. If the laws and principles are eroded by such institutions it not only pollutes its functioning, deteriorating its standard but also exhibits to its own students the wrong channel adopted. If that be so, how could such institutions produce good citizens? It is the educational institutions which are the future hope of this country. They lay the seed for the foundation of morality, ethics and discipline. If there is any erosion or descending by those who control the activities all expectations and hopes are destroyed."

(emphasis added) 16 <CITATION> ., AIR 2000 SC 634, this Court observed as under:

"It is a constitutional mandate that the <ORG> shall ensure proper education to the students on whom the future of the society depends. In line with this principle, the <ORG> has enacted statutes and framed rules and regulations to control/regulate establishment and running of private schools at different levels. The <ORG> Government provides grant-in-aid to private schools with a view to ensure smooth running of the institution and to ensure that the standard of teaching does not suffer on account of paucity of funds. It needs no emphasis that appointment of qualified and efficient teachers is a sine qua non for maintaining high standards of teaching in any educational institution."

(emphasis added)

17. In view of the above, it is evident that education is necessary to develop the personality of a person as a whole and in totality as it provides the process of training and acquiring the knowledge, skills, developing mind and character by formal schooling. Therefore, it is necessary to maintain a high academic standard and academic discipline along with academic rigour for the progress of a nation.

Democracy depends for its own survival on a high standard of vocational and professional education. Paucity of funds cannot be a ground for the <ORG> not to provide quality education to its future citizens. It is for this reason that in order to maintain the standard of education <ORG> provides grant-in-aid to private schools to ensure the smooth running of the institution so that the standard of teaching may not suffer for want of funds. Article 21A has been added by amending our Constitution with a view to facilitate the children to get proper and good quality education. However, the quality of education would depend on various factors but the most relevant of them is excellence of teaching staff. In view thereof, quality of teaching staff cannot be compromised. The selection of the most suitable persons is essential in order to maintain excellence and the standard of teaching in the institution. It is not permissible for the <ORG> that while controlling the education it may impinge the standard of education. It is, in fact, for this reason that norms of admission in institutions have to be adhered to strictly. Admissions in mid academic sessions are not permitted to maintain the excellence of education.

APPOINTMENT/EMPLOYMENT WITHOUT ADVERTISEMENT:

18. At one time this Court had been of the view that calling the names from <ORG> would curb to certain extent the menace of nepotism and corruption in public employment. But, later on, came to the conclusion that some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. Even if the names of candidates are requisitioned from <ORG>, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in <ORG> as merely calling the names from the <ORG> does not meet the requirement of the said Article of the Constitution. (Vide: <CITATION> ., AIR 1992 SC 789;

<CITATION> ., AIR 1992 SC 2130; Excise Superintendent Malkapatnam, Krishna District, A.P.

v. K.B.N. Visweshwara Rao & Ors., (1996) 6 SCC 216; <CITATION> ., AIR 1998 SC 331; <CITATION> ., AIR 2005 SC 2103; <CITATION> , AIR 2006 SC 2319; <CITATION> , ; <CITATION> ., ; and <CITATION> , ).

19. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from <ORG> or putting a note on <ORG> etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance of the said Constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit.

ORDER BAD IN INCEPTION:

20. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin. (vide: <CITATION> ., AIR 1998 SC 1289;

<NAME> (Dead) by L.Rs. v. <NAME> (Dead) by L.Rs. & Ors. , AIR 2005 SC1964; and <CITATION> ., AIR 2010 SC 3823).

The concept of adverse possession of lien on post or holding over are not applicable in service jurisprudence. Therefore, continuation of a person wrongly appointed on post does not create any right in his favour. ( <CITATION> ., AIR 2010 SC 3783).

ELIGIBILITY LACKING:

21. <CITATION> ., 1993 Supp (1) SCC 714, this Court examined the case of a person who did not possess the requisite percentage of marks as per the statutory requirement and held that he cannot hold the post observing:

"......It need not be pointed out that the sole object of prescribing qualification that the candidate must have a consistently good academic record with first or high second class Master's Degree for appointment to the post of a Principal, is to select a most suitable person in order to maintain excellence and standard of teaching in the institution apart from administration..... The appellant had not secured even second class marks in his Master of Arts Examination whereas the requirement was first or high second class (55%). The irresistible conclusion is that on the relevant date the appellant did not possess the requisite qualifications........On the date of the appointment the appellant did not possess the requisite qualifications and as such his appointment had to be quashed."

(emphasis added)

22. <CITATION> ., AIR 2008 SC 1817, this Court examined the issue as to whether a person lacking eligibility can be appointed and if so, whether such irregularity/illegality can be cured/condoned. After considering the provisions of the U.P. Secondary Education Services Commission Rules, 1983 and U.P. Intermediate Education Act, 1921, this Court came to a conclusion that lacking eligibility as per the rules/advertisement cannot be cured at any stage and making appointment of such a person tantamounts to an illegality and not an irregularity, thus cannot be cured. A person lacking the eligibility cannot approach the court for the reason that he does not have a right which can be enforced through court.

This Court further held as under:

"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.( <CITATION> (3), ;, <CITATION> , ; and <CITATION> ), )".

RELAXATION:

23. <CITATION> ., AIR 1980 SC 2141, issue of relaxation of eligibility came for consideration before this Court wherein it was held as under:

"..........We regretfully but respectfully disagree with <ORG> and uphold the sense of high second class attributed by the learned single Judge. The midline takes us to 54% and although it is unpalatable to be mechanical and mathematical, we have to hold that those who have not secured above 54% marks cannot claim to have obtained a high second class and are ineligible.......We have earlier held that the power to relax, as the Ordinance now runs, in so far as high second class is concerned, does not exist. Inevitably, the appointments of the 3 respondents violate the Ordinance and are, therefore, illegal."

(emphasis added)

24. <CITATION> ., 1993 Supp (3) SCC 168, this Court again dealt with the power of relaxation of minimum qualifications as the statutory provisions applicable therein provided for relaxation, but to what extent and under what circumstances, such power could be exercised was not provided therein. Thus, this Court issued the following directions:

"A. The University must note that the qualifications it advertises for the posts should not be at variance with those prescribed by its Ordinance/Statutes.

B. The candidates selected must be qualified as on the last date for making applications for the posts in question or on the date to be specifically mentioned in the advertisement/notification for the purpose.

C. When the <ORG> or its <ORG> relaxes the minimum required

qualifications, unless it is specifically stated in the advertisement/notification both that the qualifications will be relaxed and also the conditions on which they will be relaxed, the relaxation will be illegal.

D. <ORG> must mention in its proceedings of selection the reasons for making relaxations, if any, in respect of each of the candidates in whose favour relaxation is made.

E. The minutes of the meetings of <ORG> should be preserved for a sufficiently long time, and if the selection process is challenged until the challenge is finally disposed of. An adverse inference is liable to be drawn if the minutes are destroyed or a plea is taken that they are not available."

(emphasis added)

25. <CITATION> ., AIR 1984 SC 541, this <ORG> while dealing with the same issue, held that once it is established that there is no power to relax the essential qualifications, the entire process of selection of the candidate was in contravention of the established norms prescribed by advertisement.

The power to relax must be clearly spelt out and cannot otherwise be exercised.

26. <CITATION> ., , this Court held that:

"Another aspect which this Court has highlighted is scope for relaxation of norms..... Once it is most satisfactorily established that <ORG> did not have the power to relax essential qualification, the entire process of selection so far as the selected candidate is concerned gets vitiated."

27. This Court in <CITATION> ., , held:

"The appointing authorities are required to apply their mind while exercising their discretionary jurisdiction to relax the age- limits....The requirements to comply with the rules, it is trite, were required to be complied with fairly and reasonably. They were bound by the rules. The discretionary jurisdiction could be exercised for relaxation of age provided for in the rules and within the four corners thereof."

(emphasis added)

28. <CITATION> ., AIR 2005 SC 2775, this Court held:

"Even assuming that there is a power of relaxation under the Regulations....... the power of relaxation cannot be exercised in such a manner that it completely distorts the Regulations. The power of relaxation is intended to be used in marginal cases.... We do not think that they are intended as an "open sesame" for all and sundry. The wholesale go-by given to the Regulations, and the manner in which the recruitment process was being done, was very much reviewable as a policy directive, in exercise of the power of <ORG> under Section 6(2) of the Act."

29. <CITATION> ., , one of the questions raised has been as to whether a person not possessing the required eligibility of qualification i.e. 55% marks in Master's degree can be appointed in view of the fact that the <ORG> refused to grant relaxation.

On the issue of relaxation of eligibility, the Court held as under: "....the essential requirement of academic qualification of a particular standard and grade viz. 55%, in the "relevant subject" for which the post is advertised, cannot be rendered redundant or violated...... The rejection by <ORG> of the request of the <ORG> in this case to relax the condition relating to 55% marks at post- graduation level.... is to be the last word on the claim of the appellant and there could be no further controversy raised in this regard...."

(emphasis added) In view of the above, this Court held that the appointment of the appellant therein has rightly been quashed as he did not possess the requisite eligibility of 55% marks in Master's course.

30. In absence of an enabling provision for grant of relaxation, no relaxation can be made. Even if such a power is provided under the Statute, it cannot be exercised arbitrarily. (See: <ORG> v.

<NAME> & Ors., (2009) 4 SCC 170).

31. Such a power cannot be exercised treating it to be an implied, incidental or necessary power for execution of the statutory provisions. Even an implied power is to be exercised with care and caution with reasonable means to remove the obstructions or overcome the resistance in enforcing the statutory provisions or executing its command. Incidental and ancillary powers cannot be used in utter disregard of the object of the Statute. Such power can be exercised only to make such legislation effective so that the ultimate power will not become illusory, which otherwise would be contrary to the intent of the legislature. (vide: <CITATION> , AIR 1956 SC 44; and <CITATION> ., ).

More so, relaxation in this manner is tantamount to changing the selection criteria after initiation of selection process, which is not permissible at all. Rules of the game cannot be changed after the game is over. (<NAME> v. State of Andhra Pradesh & Anr., AIR 2008 SC 1470; and <ORG>., AIR 2010 SC 3714).

DELAY/LACHES:

32. In the very first appeal, the respondent filed Writ Petition on 11.11.2005 claiming relief under the Notification dated 6.10.1989 w.e.f. 1.1.1986 without furnishing any explanation for such inordinate delay and on laches on her part. Section 3 of the Limitation Act 1963, makes it obligatory on the part of the court to dismiss the Suit or appeal if made after the prescribed period even though the limitation is not set up as a defence and there is no plea to raise the issue of limitation even at appellate stage because in some of the cases it may go to the root of the matter. (See: <NAME> v. <NAME>., AIR 1944 Privy Council 24; and <CITATION> , ).

33. Needless to say that Limitation Act 1963 does not apply in writ jurisdiction. However, the doctrine of limitation being based on public policy, the principles enshrined therein are applicable and writ petitions are dismissed at initial stage on the ground of delay and laches. In a case like at hand, getting a particular pay scale may give rise to a recurring cause of action. In such an eventuality, the petition may be dismissed on the ground of delay and laches and the court may refuse to grant relief for the initial period in case of an unexplained and inordinate delay. In the instant case, the respondent claimed the relief from 1.1.1986 by filing a petition on 11.11.2005 but <ORG> for some unexplained reason granted the relief w.e.f.

1.6.1984, though even the Notification dated 6.10.1989 makes it applicable w.e.f. 1.1.1986.

34. This <ORG> has consistently rejected the contention that a petition should be considered ignoring the delay and laches in case the petitioner approaches the <ORG> after coming to know of the relief granted by the <ORG> in a similar case as the same cannot furnish a proper explanation for delay and laches. A litigant cannot wake up from deep slumber and claim impetus from the judgment in cases where some diligent person had approached the <ORG> within a reasonable time. (See: <CITATION> ., AIR 1989 SC 674; State of Karnataka & Ors. v.

<ORG>., (1996) 6 SCC 267; and <ORG>.

v. State of Haryana & Ors., AIR 1997 SC 2366).

RELIEF NOT CLAIMED - CANNOT BE GRANTED:

35. Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is a settled legal proposition that "as a rule relief not founded on the pleadings should not be granted." Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ. (Vide : Sri <NAME> v. <NAME>, (1898) 25 Ind. App. 195; <CITATION> , AIR 1953 SC 235; <CITATION> ., AIR 2005 SC 3165; and State of Maharashtra v.

<ORG>, (2010) 4 SCC 518.) ARTICLE 14:

36. It is a settled legal proposition that Article 14 is not meant to perpetuate illegality and it does not envisage negative equality. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief. ( <CITATION> ., AIR 1995 SC 705;

<CITATION> ., AIR 2003 SC 1241; <ORG> v. State of Haryana & Ors., AIR 2005 SC 565; <CITATION> ., AIR 2006 SC 898; <NAME> & Anr. v. State of Jammu & Kashmir & Ors., ; <NAME> (supra);

and <CITATION> ., AIR 2010 SC 3455).

This principle also applies to judicial pronouncements. Once the court comes to the conclusion that a wrong order has been passed, it becomes the solemn duty of the court to rectify the mistake rather than perpetuate the same. While dealing with a similar issue, this Court in <CITATION> ., AIR 1993 SC 1048 observed as under:

"...To perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience. In this, we derive comfort and strength from the wise and inspiring words of Justice <NAME> in <NAME> v. <NAME> (A.M.Y. at page 18: `a Judge ought to be wise enough to know that he is fallible and, therefore, ever ready to learn: great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead: and courageous enough to acknowledge his errors'".

(See also re: <NAME>, Dy. Secy., <ORG>, (1995) 3 SCC 619; <CITATION> ., ; and <CITATION> , AIR 2006 SC 2449).

37. We are fully alive of the object and purpose of according recognition and affiliation to educational institutions. It is the educational authorities of the State which grant recognition to <ORG> for opening or running an educational institution. Affiliation is granted by the particular <ORG> for undertaking the examination of the students of that college for awarding degrees and certificates. Therefore, while granting the recognition and affiliation even for non-governmental and non-aided private colleges, it is mandatory to adhere to the conditions imposed by them, which also include the minimum eligibility for appointment of teaching staff. The authority at the time of granting approval has to apply its mind to find out whether a person possessing the minimum eligibility has been appointed. In the instant case, it appears to be a clear cut case of arbitrariness which cannot be approved.

ARBITRARINESS:

38. The rule of law inhibits arbitrary action and also makes it liable to be invalidated. Every action of the <ORG> or its instrumentalities should not only be fair, legitimate and above-board but should be without any affection or aversion. It should neither be suggestive of discrimination nor even give an impression of bias, favouritism and nepotism. Procedural fairness is an implied mandatory requirement to protect against arbitrary action where Statute confers wide power coupled with wide discretion on an authority. If the procedure adopted by an authority offends the fundamental fairness or established ethos or shocks the conscience, the order stands vitiated.

The decision making process remains bad. ( <CITATION> , AIR 1988 SC 157; <CITATION> ., ; and <CITATION> , ).

39. <CITATION> ., AIR 1967 SC 1458, a Constitution Bench of this Court observed as under:

"Official arbitrariness is more subversive of doctrine of equality than the statutory discrimination. In spite of statutory discrimination, one knows where he stands but the wand of official arbitrariness can be waived in all directions indiscriminately."

40. Similarly, in <CITATION> ., AIR 1967 SC 1427, a Constitution Bench of this Court observed as under:

"....absence of arbitrary power is the first essence of the rule of law, upon which our whole Constitutional system is based..... Rule of law, from this point of view, means that the decision should be made by the application of known principle and rules and in general such decision should be predictable and the citizen should know where he is, if a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law."

(See also: <CITATION> , AIR 1952 SC 16).

41. It is a matter of common experience that a large number of orders/letters/circulars, issued by the State/statutory authorities, are filed in court for placing reliance and acting upon it. However, some of them are definitely found to be not in conformity with law. There may be certain such orders/circulars which are violative of the mandatory provisions of the Constitution of India. While dealing with such a situation, this Court in <CITATION> ., AIR 1997 SC 1446 came across with an illegal order passed by the statutory authority violating the provisions of Articles 14 and 16 of the Constitution. This Court simply brushed aside the same without placing any reliance on it observing as under:

"The said order was not challenged in the writ petition as it had not come to the notice of the appellants. It has been filed in this Court along with the counter affidavit..... This order is also deserved to be quashed as it is not consistent with the statutory rules. It appears to have been passed by the Government to oblige the respondents......"

(emphasis added)

42. The whole exercise done by the State authorities suffers from the vice of arbitrariness and thus is violative of Article 14 of the Constitution. Therefore, it cannot be given effect to.

PER IN CURIAM - Doctrine:

43. "Incuria" literally means "carelessness". In practice per incuriam is taken to mean per ignoratium. The Courts have developed` this principle in relaxation of the rule of stare decisis. Thus the "quotable in law", is avoided and ignored if it is rendered, in ignoratium of a Statute or other binding authority.

<CITATION> ) by Lrs., AIR 1975 SC 907, this Court held :

"......where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obtrusive omission."

(emphasis added)

44. <CITATION> ., AIR 1997 SC 2071, question arose that in case the teacher at the time of appointment, did not possess the requisite eligibility, i.e., qualifications, whether he could claim any benefit under the grant-in-

aid Scheme. Respondent-teacher therein had secured 53.9 % marks and required eligibility provided for 54%. This Court held that undoubtedly 53.9% marks were very close to required marks i.e. 54%, but the teacher so appointed did not possess the eligibility. The court took notice of the fact that he was appointed in 1978 but acquired further qualification on 10.7.1987, and held:

"Admittedly, since the first respondent on the date of his appointment was not possessing the requisite qualification and acquired the same only on 10.7.1987 he will be eligible to the benefit of the grant-in-aid w.e.f. 1.8.1987 and onwards"

45. This Court while hearing the SLP (C) Nos. 14206-14209 of 2001, <CITATION> ., on 11.3.2002 observed as under:

"Heard.

The so-called contention of deficiency in the qualification being much earlier in the circular of the <ORG> dated 06.11.1990, we see no infirmity with the impugned judgment requiring our interference. The Special Leave Petitions are dismissed accordingly."

This Court further dismissed the Review Petition Nos. 1529-

1532 of 2002 against the said judgment and order on 28.8.2002.

46. From the aforesaid discussion, the following picture emerges:

(i) The procedure prescribed under the Rules, 1974 has not been followed in all the cases while making the appointment of the respondents/teachers at initial stage. Some of the persons had admittedly been appointed merely by putting some note on <ORG> of the College. Some of these teachers did not face the interview test before <ORG>. Once an order of appointment itself had been bad at the time of initial appointment, it cannot be sanctified at a later stage.

(ii) At the relevant time of appointment of the respondents/teachers there has been a requirement of possessing good second class i.e. 54% marks in Master's Course and none of the said respondents had secured the said percentage.

(iii) Their appointments had been approved after a long long time.

In some cases after 10-12 years of their initial appointment by the statutory authority i.e. Director of Higher Education.

(iv) A candidate becomes eligible to apply for a post only if he fulfils the required minimum benchmark fixed by the rules/advertisement. Thus, none of the respondents could even submit the application what to talk of the appointments.

(v) The so-called relaxation by <ORG> was accorded by passing a routine order applicable to large number of colleges, that too after a lapse of long period i.e. about a decade.

(vi) Fixation of eligibility falls within the exclusive domain of the executive and once it has been fixed by the State authorities under the Rules 1974, the question of according relaxation by <ORG> could not arise and, therefore, the order of condonation etc. is nullity.

(vii) The relaxation has been granted only by <ORG> though Rule 2(i) of Rules 1974 defined `University' means <ORG>, <ORG>, <ORG> and <ORG>.

(viii) Granting relaxation at this stage amounts to change of criteria after issuance of advertisement, which is impermissible in law. More so, it is violative of fundamental rights enshrined under Articles 14 and 16 of the Constitution of the similarly situated persons, who did not apply considering themselves to be ineligible for want of required marks.

(ix) The exercise of condonation of deficiency had not been exercised by any University other than <ORG>.

(x) The post of the teachers i.e. respondents is transferable to any college affiliated to any other University under the Rules 1979.

(xi) The power to grant relaxation in eligibility had not been conferred upon any authority, either the <ORG> or the <ORG>. In absence thereof, such power could not have been exercised.

(xii) This Court in Damodar Nayak (supra) has categorically held that a person cannot get the benefit of grant-in-aid unless he completes the deficiency of educational qualification. Further, this Court in Dr. <NAME> (supra) upheld the termination of services of the appellant therein for not possessing 55% marks in Master Course.

(xiii) The aforesaid two judgments in <NAME> (supra) and Dr. <NAME> (supra), could not be brought to the notice of either <ORG> or this <ORG> while dealing with the issue.

Special leave petition in the case of <NAME> & <NAME>.

(supra) has been dealt with without considering the requirement of law merely making the reference to Circular dated 6.11.1990, which was not the first document ever issued in respect of eligibility. Thus, all the judgments and orders passed by <ORG> as well as by this <ORG> cited and relied upon by the respondents are held to be not of a binding nature. (Per in curiam)

(xiv) In case a person cannot get the benefit of grant-in-aid scheme unless he completes the deficiency of educational qualification, question of grant of <ORG> pay scale does not arise.

(xv) The cases had been entertained and relief had been granted by <ORG> without considering the issue of delay and laches merely placing reliance upon earlier judgments obtained by diligent persons approaching the courts within a reasonable time.

(xvi) The authority passed illegal orders in contravention of the constitutional provisions arbitrarily without any explanation whatsoever polluting the entire education system of the State, ignoring the purpose of grant-in-aid scheme itself that it has been so provided to maintain the standard of education.

(xvii) <ORG> granted relief in some cases which had not even been asked for as in some cases the <ORG> pay scale had been granted with effect from 1.6.1984, i.e., the date prior to 1.1.1986 though the same relief could not have been granted. Thus, it clearly makes out a case of deciding a case without any application of mind.

(xviii) In some cases the <ORG> pay scale has been granted by <ORG> prior to the date of according the benefit of grant-in-aid scheme to the concerned teachers which was not permissible in law in view of the law laid down by this Court in Damodar Nayak (supra).

(xix) The grievance of the respondents that not upholding the orders passed by <ORG> in their favour would amount to a hostile discrimination is not worth acceptance for the reason that Article 14 of the Constitution envisages only positive equality.

(xx) Concept of adverse possession of lien on post or holding over are inapplicable in service jurisprudence.

(xxi) The submission on behalf of the respondents that Government orders/circulars/letters have been complied with, therefore, no interference is called for, is preposterous for the simple reason that such orders/circulars/letters being violative of statutory provisions and constitutional mandate are just to be ignored in terms of the judgment of this Court in <NAME> (supra).

47. In view of the above, it stands crystal clear that a teacher who had been appointed without possessing the requisite qualification at initial stage cannot get the benefit of grant-in-aid scheme unless he acquires the additional qualification and, therefore, question of grant of <ORG> pay scale would not arise in any circumstance unless such teacher acquires the additional qualification making him eligible for the benefit of grant-in-aid scheme. The cumulative effect therefore comes to that such teacher will not be entitled to claim the <ORG> pay scale unless he acquires the higher qualification i.e. M.Phil/Ph.D.

48. In the facts and circumstances of the case, we feel that terminating the services of those who had been appointed illegally and/or withdrawing the benefits of grant-in-aid scheme of those who had not completed the deficiency in eligibility/educational qualification or withdrawing the benefit thereof from those who had been granted from the date prior to completing the deficiency, may not be desirable as a long period has elapsed. So far as the grant of <ORG> pay scale is concerned, it cannot be granted prior to the date of acquisition of higher qualification. In view of the above, the impugned judgment/order cannot be sustained in the eyes of law.

49. The full particulars of the respondent-teachers are not before us as in some cases there had been claim and counter claim of possessing the requisite marks i.e. 54% in Master's Course, as in Civil Appeal No. 1253 of 2011, State of Orissa & Anr. v. <NAME> & Ors. Thus, we pass the following directions:

(i) In case of dispute regarding possessing of 54% marks, the authorities, Secretary of Higher Education/Director of Higher Education may examine the factual position and decide the case of individual teachers in accordance with law laid down in this case;

(ii) If a person did not possess the requisite qualification on the date of appointment and was not entitled for grant-in-aid scheme unless he completes the deficiency, his case would be considered from the date of completing the deficiency for grant of <ORG> pay scale. However, in no case, the <ORG> pay scale can be granted prior to the date of according the benefit of the grant-in-aid scheme, i.e. by acquiring the degree of M.Phil/Ph.D;

(iii) The aforesaid exercise shall be completed within a period of four months from today; and

(iv) The arrears of pay, if any, shall be paid to the teacher concerned within a period of four months thereafter.

50. In view of the above, all appeals stand disposed of. No order as to costs.

.................................J.

(<NAME>) New Delhi, .................................J.

February 9, 2011 (Dr. <NAME>)