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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.7983-7986 OF 2009

State of Punjab and others ..Appellants

versus

Anita and others ..Respondents

WITH

CIVIL APPEAL NOS.7970-7971 OF 2009

J U D G M E N T

J.S.KHEHAR, J.

The Management of the Doaba Arya Senior Secondary

School, Nawanshahr, issued an advertisement in the Indian

Express dated 25.05.2002, inviting applications for six vacant

posts of JBT/ETT teachers. Since the controversy, being

adjudicated upon, is substantially to be determined on the basis

of the contents of the advertisement, the above advertisement

dated 25.05.2002 is being extracted hereunder:

“Doaba Arya Senior Secondary School, Nawanshahr

Wanted following dedicated, talented, trained and

experienced teachers against six vacant JBT/ETT

aided posts preferably one M.A. English, one M.Sc.

Chem., One M.Sc. Bio, M.Com., one M.Sc. Maths, one

M.A. Eco and one Watchman. Apply Principal afresh

within ten days alongwith testimonials. Reservation

exists as per Govt. rules.

Sd/-

Principal, Doaba Arya Sr. Sec. School,

Nawanshahr.

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The private respondents were selected against the six

advertised posts, by the Managing Committee of the above school.

Despite their selection and consequential appointment, the State

Government did not accord its approval. It is in the aforesaid

circumstances, that the private respondents, i.e., the selected

JBT/ETT teachers issue a notice dated 1.2.2004, wherein they

sought approval of the State Government, as also, wages for the

period they had been discharging their duties. Since, they did

not receive any response to the legal notice dated 1.2.2004, the

private respondents approached the High Court of Punjab and

Haryana at Chandigarh (hereinafter referred to as the 'High

Court') by filing Civil Writ Petition No.6789 of 2004. Rather

than examining the merits of the controversy, the High Court by

its order dated 27.04.2004, required the State Government to

take a decision on the legal notice, issued by the private

respondents. It is therefore, that the District Education

Officer, Nawanshahr (hereinafter referred to as the 'DEO')

passed an order dated 04.4.2005, declining the claim of the

private respondents. A perusal of the speaking order passed by

the DEO, inter alia, reveals, that the private respondents had

been appointed in violation of the statutory rules regulating

appointments to privately managed recognised schools. It was

also indicated in the order dated 04.4.2005, that the selection

process was not in consonance with the statutory rules.

The order passed by the DEO dated 04.4.2005 was

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assailed by the private respondents before the High Court by

filing Civil Writ Petition No. 15599 of 2006. The same came to

be allowed by the impugned order dated 2.7.2007. A perusal of

the impugned order reveals, that the High Court emphatically

placed reliance on an earlier litigation in respect of the same

selection process, wherein a Division Bench of the High Court,

while disposing of civil writ petition No. 13979 of 2002 (by

order dated 16.2.2004), had found the petitioner therein not

possessing superior qualifications to the private respondent

no.4, whose selection was sought to be assailed. The High Court

had also, while disposing of civil writ petition no.13979 of

2002, rejected the contention advanced at the hands of the

petitioner therein, that the process of selection was vitiated

on account of bias.

Since the order passed in civil writ petition no. 13979

of 2002 was affirmed by this Court, the special leave petition

filed against the said order before this Court was dismissed.

The High Court inferred from the above dismissal, that the

selection process had been approved by this Court.

We will first endeavour to deal with the basis adopted

by the High Court in affirming the selection process of the

private respondents, consequent whereof they came to be

appointed as JBT/ETT teachers. It would be relevant to mention,

that the qualifications prescribed for the advertised JBT/ETT

posts were not at all the subject matter of consideration in

writ petition no. 13979 of 2002, nor was the selection process a

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matter for consideration. In the above view, it was not proper

for the High Court to approve the selection process, by which

the six private respondents came to be appointed as JBT/ETT

teachers. Moreover, the issues which are now raised were not

examined by the High Court, or by this Court, during the

previous litigation. We are, therefore, of the considered view,

that the High Court should have addressed the pointed questions

raised before it, while examining the legality of the order

passed by the DEO dated 04.4.2005. Unfortunately, the High

Court did not deal with any of the reasons recorded by the DEO

(while rejecting the claim raised by the private respondents).

We shall now deal with the pointed issues recorded by

the DEO in his order dated 04.4.2005. It is not a matter of

dispute, that insofar as the selection and appointments to

privately managed recognised schools in the State of Punjab is

concerned, the same are regulated by the Punjab Privately

Managed Recognised Schools Employees (Security of Service)

Rules, 1981 (hereinafter referred to as the '1981 Rules'). Rule

6 of the aforesaid Rules lays down the qualifications for

different posts, and Rule 7 the manner/method of appointment.

Rules 6 and 7 of the 1981 Rules are reproduced hereunder:

“6. Qualification – (1) No person shall be

appointed to an aided post, unless he possess the

qualifications and experience as specified against

that post in the Appendix to these rules.

(2) Unless otherwise specified in the Appendix to

these rules, an employee who has not attained the

knowledge of Hindi and Punjabi language of

matriculation standard or its equivalent, shall

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have to acquire the same within a period of two

years from the date of his appointment of the

commencement of these rules, whichever is earlier,

failing which he shall not earn his first grade

increments till he acquires such knowledge when the

increments shall be released retrospectively :

Provided that he shall not be entitled to get

arrears of the released grade increments for the

period during which he could not acquire the

aforesaid knowledge.

7. Appointing authority and method of appointment –

All appointments to the aided posts shall be made

by the managing committee in the following manner:

(i) Appointing authority shall advertise in both

English and vernacular daily newspapers in the

State, vacancy or vacancies to be filled in by

giving full particulars thereof including the

requisite qualifications, number of vacancies to be

filled in and the last date by which the

applications may be submitted;

(ii) The recommendations for appointment of the

candidates shall be made by a sub-committee

consisting five members of the managing committee.

(2) The members of the sub-committee shall be

appointed by the managing committee.”

A perusal of Rule 6 reveals, that qualifications for posts under

the purview of the 1981 Rules have been expressed in the

appendix to the 1981 Rules. Insofar as the post of JBT teacher

is concerned, the same figures at serial no.10 of the appendix,

wherein the prescribed qualifications are as under:

APPENDIX

(See Rule 6)

Serial

No.

Designation of Post Qualifications and experiences

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1 2 3

10. J.B.T. Teacher (i) Martic with two years course

in J.B.T. Training; and

(ii) Knowledge of Punjabi and

Hindi Language of Matriculation

Standard or its equivalent.

Under the 1981 Rules, for the post of JBT teachers, the

prescribed qualification is, matriculation with two years course

in JBT training. In addition thereto, a candidate should have

knowledge of Punjabi and Hindi language of matriculation

standard, or its equivalent.

The issue which requires our consideration is, whether

the advertisement issued by the Doaba Arya Senior Secondary

School, Nawanshahr, had invited applications by truly reflecting

the prescribed qualifications, and also whether, the private

respondents possess the qualification prescribed for the post of

JBT/ETT teachers, which was advertised on 25.2.2002.

While examining the advertisement, which has been

extracted hereinabove, we are satisfied that applications were

not invited from candidates possessing the qualification

depicted in the appendix to the 1981 Rules, pertaining to the

posts of JBT/ETT teachers. It is also apparent, that none of

the private respondents possess the qualification of JBT/ETT,

and as such, none of them can be stated to be possessed of

qualifications statutorily prescribed and delineated in the

appendix of the 1981 Rules. None of the private respondents was

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therefore per se eligible for appointment to the posts of

JBT/ETT teachers. This was one of the pointed reasons why the

State Government did not grant its approval to the selection and

appointment of the private respondents. In our considered view,

no infirmity can be found in the aforesaid determination at the

hands of the State Government.

Insofar as the issue in hand is concerned, reference

may be made to the decision rendered by this Court in P.M. Latha

and another vs. State of Kerala and others (2003) 3 SCC 541,

wherein this Court held as under:

We find absolutely no force in the argument

advances by the respondents that BEd qualification

is a higher qualification than TTC and therefore

the BEd candidates should be held to be eligible to

compete for the post. On behalf of the appellants,

it is pointed out before us that Trained Teacher's

Certificate is given to teachers specially trained

to teach small children in primary classes whereas

for BEd degree, the training imparted is to teach

students of classes above primary. BEd degree-

holders, therefore, cannot necessarily be held to

be holding qualification suitable for appointment

as teachers in primary schools. Whether for a

particular post, the source of recruitment should

be from the candidates with TTC qualification or

BEd qualification, is a matter of recruitment

policy. We find sufficient logic and justification

in the State prescribing qualification for the post

of primary teachers as only TTC and not BEd .

Whether BEd qualification can also be prescribed

for primary teachers is a question to be considered

by the authorities concerned but we cannot consider

BEd candidates, for the present vacancies

advertised, as eligible.”

(emphasis is ours)

Reference may also be made to the decision rendered by this

Court in Yogesh Kumar and others vs. Government of NCT of Delhi

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and others (2003) 3 SCC 548, wherein this Court held as under:

“The Division Bench of the Delhi High Court in the

impugned judgment has dealt with the above two

arguments in great detail. In our considered

opinion, it has rightly come to the conclusion that

BEd qualification, although a well-recognised

qualification in the field of teaching and

education being not prescribed in the

advertisement, only some of the BEd candidates who

took a chance to apply for the post cannot be given

entry in the field of selection. We also find that

the High Court rightly came to the conclusion that

teacher training imparted to teachers for BEd

course equips them for teaching higher classes. A

specialized training given to teachers for teaching

small children at primary level cannot be compared

with training given for awarding BEd degree. Merely

because primary teachers can also earn promotion to

the post of teachers to teach higher classes and

for which BEd is the prescribed qualification, it

cannot be held that BEd is a higher qualification

than TTC. Looking to the different nature of TTC

qualification, the High Court rightly held that it

is not comparable with BEd degree qualification and

the latter cannot be treated as higher

qualification to the former .”

(emphasis is ours)

A perusal of the aforesaid judgments leave no room for any

doubt, that it is imperative for candidates to possess the

statutory qualification prescribed for appointment to the posts,

to which they are seeking appointment. In view of the position

declared by this Court, qualifications of B.Ed and other

qualifications possessed by the private respondents, namely,

M.A., M.Sc, M.Com. Etc. cannot be treated as higher

qualifications with reference to the prescribed

qualifications(JBT/ETT). We, therefore, find the reasons

recorded by the DEO in the impugned order dated 04.4.2005 were

fully justified, and in consonance with the legal position

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declared by this Court, as has been noticed hereinabove.

To be fair to the learned counsel for the private

respondents, we may also make a reference to the decision

rendered by this Court in Jyoti K.K. and others vs. Kerala

Public Service Commission and others (2010) 15 SCC 596. Learned

counsel had invited our attention to paragraph 7 thereof,

wherein it was observed as under:

“It is no doubt true, as stated by the High Court

that when a qualification has been set out under

the relevant Rules, the same cannot be in any

manner whittled down and a different qualification

cannot be adopted. The High Court is also justified

in stating that the higher qualification must

clearly indicate or presuppose the acquisition of

the lower qualifications prescribed for the post

shall also be sufficient for the post. If a person

has acquired higher qualifications in the same

Faculty, such qualifications can certainly be

stated to presuppose the acquisition of the lower

qualifications prescribed for the post. In the case

it may not be necessary to seek far .”

(emphasis is ours)

It is no doubt true, that this Court held in the afore-stated

judgment, that if a person had acquired higher qualifications in

the same faculty, such qualifications can certainly be stated

to presuppose the acquisition of the lower qualification.

Possession of higher qualification would therefore, according to

learned counsel, make a candidate eligible for the post, even

though, the candidate does not possess the prescribed

qualification. The question however is, whether the above

position can be applied to the present case?

It was sought to be asserted on the basis of the

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aforesaid observations, that since the private respondents

possess higher qualifications, then the qualification of

JBT/ETT, they should be treated as having fulfilled the

qualification stipulated for the posts of JBT/ETT teachers. It

is not possible for us to accept the aforesaid submission of the

learned counsel for the private respondents, because the

statutory rules which were taken into consideration by this

Court while recording the aforesaid observations in Jyoti K.K.'s

case (supra), permitted the aforesaid course. The statutory

rule, in the decision relied on by the learned counsel for the

private respondents, is extracted hereunder:

6. Rule 10(a)(ii) reads as follows :

“10.(a)(ii) Notwithstanding anything contained in

these Rules or in the Special Rules, the

qualifications recognised by executive orders or

standing orders of Government as equivalent to a

qualification specified for a post in the Special

Rules and such of those higher qualifications

which presuppose the acquisition of the lower

qualification prescribed for the post shall also

be sufficient for the post .”

(emphasis is ours)

A perusal of the rule clearly reveals, that the possession of

higher qualification would presuppose the acquisition of the

lower qualification prescribed for the posts. Insofar as the

present controversy is concerned, there is no similar statutory

provision authorizing the appointment of persons with higher

qualifications. Moreover, in view of the decision rendered by

this Court in P.M. Latha's case (supra) and in Yogesh Kumar's

case (supra) lead to the clear an unambiguous conclusion that

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none of the private respondents could be considered as eligible

for selection or appointment to the advertised posts of JBT/ETT

teachers.

It is also necessary for us to take into consideration

Government Instructions dated 20.12.1995, which were relied upon

by learned counsel, so as to contend, that the private

respondents who possess higher qualifications including the

qualifications depicted as preferential in the advertisement,

should be treated as eligible. Relevant extract of the

aforesaid Government Instructions dated 20.12.1995 is being

reproduced hereunder:

“6. Vide letter No.1/18/95-3Edu-7/20602, dated

14.09.1995 the Government has taken the decision

that in future the appointment of J.B.T. Teachers

in the Government Schools may be done in two parts.

In first part the candidates who are possessing the

qualification of J.B.T./E.T.T. or equivalent shall

be considered. Thereafter, in case it emerges that,

J.B.T./E.T.T. qualified candidates are not

available, in that event, appointments may be made

by adopting second part. It should be mentioned in

the advertisement, that in case candidates with

J.B.T./E.T.T. or equivalent qualification are not

available, then candidates who have graduation/post

graduation qualifications with B.Ed. will also be

considered. But the candidates having qualification

of graduation/post graduation/ along with B.Ed.

shall be paid the scale of J.B.T. only. In such

cases, an affidavit will be furnished by the

candidates that after selection, being

graduates/post graduates candidates, will not claim

any other benefit or higher scale, and in this

regard, at the time of sending the requisition of

posts, this shall also be incorporated in the

advertisement.”

Having given our thoughtful consideration to the

submissions advanced at the hands of the learned counsel for the

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private respondents, based on the government instructions dated

20.12.1995, we are of the view, that the private respondents do

not satisfy the pre-condition of valid appointment expressed

therein, inasmuch as, it was imperative for the Selection

Committee, in the first instance, to consider only those

candidates who possessed the qualification of JBT/ETT, and

thereupon, posts that remained unfilled could be filled up with

persons possessing higher qualifications, i.e., graduate/post

graduate qualifications along with B.Ed.. That was not the

procedure which came to be adopted in the present controversy.

Therefore per se, no benefit can flow to the private

respondents, from the government instructions relied upon by the

learned counsel. Be that as it may, it needs to be emphasised,

that para 6 of the Government Instructions dated 20.12.1995, are

in clear violation of the statutory process of selection and

appointment postulated under the 1981 Rules. Even if the above

Government Instructions would have bestowed validity on the

selection process, through which the private respondents came to

be appointed, the same could not have been acceded to, since

Government Instructions in violation of the statutory rules, are

a nullity in law. In view of the foregoing reasons, it is not

possible for us to bestow legitimacy/legality to the appointment

of the respondents as JBT/ETT teachers.

For the reasons recorded hereinabove, we are satisfied

that the impugned order passed by the High Court dated 2.7.2007

is liable to be set aside. The same is accordingly hereby set

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aside.

We were informed, that the private respondents came to

be appointed by the Management of the Doaba Arya Senior

Secondary School, Nawanshahr, in the year 2002. We were also

informed, that the private respondents have continued to be in

the employment of the Doaba Arya Senior Secondary School,

Nawanshahr, till date. No fault whatsoever lies with the

private respondents. The fault, if at all, lies with the

Management of the Doaba Arya Senior Secondary School,

Nawanshahr. Unfortunately, the Management of the Doaba Arya

Senior Secondary School, Nawanshahr, issued an advertisement in

violation of the 1981 Rules. The procedure depicted in the 1981

Rules was also not followed while making appointments, to the

six vacant posts of JBT/ETT teachers. The Management had

required the private respondents to discharge their duties,

without the prior approval of the State Government. The

Management should therefore bear the responsibility of

shouldering the emoluments payable to the private respondents.

We therefore, hereby direct the Management of the Doaba Arya

Senior Secondary School, Nawanshahr to pay all emoluments (if

the same are still unpaid) to the private respondents, within

two months from the date of receipt of a certified copy of this

order.

The instant civil appeals are accordingly allowed in

the above terms. As a sequel to the above, all pending

interlocutory applications are disposed of.

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Civil Appeal Nos. 7970-7971 of 2009

It is not a matter of dispute that the controversy in

the present civil appeals is identical to the one adjudicated

upon by us in the case of State of Punjab and others vs. Anita

and others (Civil Appeal Nos.7983-7986 of 2009) decided on

24.09.2014.

In view of the above, the instant civil appeals are

also allowed in the same terms.

…..........................J.

[JAGDISH SINGH KHEHAR]

NEW DELHI; …..........................J.

SEPTEMBER 24, 2014. [ARUN MISHRA]

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ITEM NO.104 COURT NO.7 SECTION IV

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Civil Appeal No(s). 7983-7986/2009

STATE OF PUNJAB & ORS. Appellant(s)

VERSUS

ANITA AND ORS Respondent(s)

(with appln(s) for exemption from filing OT and application for

transposing and impleadment of non-official appellants as

respondents)

WITH

C.A. No. 7970-7971/2009

(With Office Report)

Date : 24/09/2014 These appeals were called on for hearing

today.

CORAM :

HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR

HON'BLE MR. JUSTICE ARUN MISHRA

For Appellant(s) Mr. Sanchar Anand, AAG

Mr. Piyush Hands, Adv.

for Mr. Kuldip Singh,AOR(NP)

for Mr. Ajay Pal,AOR(NP)

For Respondent(s) Mr. A.V. Palli, Adv.

Mr. Anupanm Raina, Adv.

for Mrs. Rekha Palli,AOR(NP)

Ms. S. Janani,Adv.

Mr. Deepak Goel, Adv.

UPON hearing the counsel the Court made the following

O R D E R

The appeals are allowed in terms of the Reportable

Signed Judgment, which is placed on the file.

All pending interlocutory applications are disposed of.

(Parveen Kr. Chawla) (Phoolan Wati Arora)

Court Master Assistant Registrar