D.N. Patel, J. - (1.) This Letters Patent Appeal has been preferred by original respondent no.1 of the Writ Petition being W.P.(S) No. 1056 of 2011. The Writ Petition was preferred by the respondent (original petitioner) with a prayer that his services should be regularized on the post of Headmaster in the Project High School, Makka, District- Lohardaga, State of Jharkhand. The Writ Petition was allowed by the learned Single Judge vide judgment and order dated 27th September, 2013, despite the fact that at the time of appointment of the respondent (original petitioner), he was directly appointed as an In-charge Headmaster without having 7 years' minimum experience as a teacher. Reasons:
(2.) Having heard learned counsels for both the sides and looking to the facts and circumstances of the case, it appears that: (i) The respondent is an original petitioner. He was appointed as In-charge Headmaster of the school, in question on 31st December, 1981 without having any experience as a teacher. The minimum requirement is 7 years' teaching experience, which was lacking when the respondent was appointed as In-charge Headmaster on 31st December, 1981. (ii) The management of the school and other schools were taken over by the erstwhile State of Bihar on 1 st January, 1982 under the Bihar Non-Government Secondary School (Taking Over of Management and Control) Act, 1981. There cannot be any automatic recognition of the services of the employees of the School by the Government, even after taking over from the management. There is bound to be an order, which is required to be passed by the appellant-State authorities. (iii) It further appears from the facts of the case that earlier a Writ Petition being W.P.(S) No. 3589 of 2007 was preferred by this respondent (original petitioner), wherein, it was prayed that the respondent should be declared as founder Headmaster. The Writ Petition was disposed of by this Court vide order dated 7th January, 3 2010 and representation was directed to be decided by the appellant-State authorities. (iv) It further appears from the facts of the case that the claim of this respondent (original petitioner) was rejected by the appellantState authorities vide order dated 13th May, 2010 (Annexure-4 to the memo of this Letters Patent Appeal) mainly on the ground that for the appointment as a Headmaster, the minimum qualification is Graduate degree + B.Ed etc. or minimum 7 years' teaching experience. (v) This respondent (original petitioner) got the appointment, just on previous day of taking over of the management and control of the school, in question, as an In-charge Headmaster though he had no experience as a teacher. It appears that such type of appointment is nothing, but, a camouflage because whenever such type of schools are taken over from the management, there are bound to be few such type of illegal appointments on previous day. This case is no exception to such type of "accommodative appointment". (vi) The order passed by the appellant-State authorities dated 13th May, 2010 (Annexure-4 to the memo of this Letters Patent Appeal) was challenged by this respondent (original petitioner) in the Writ Petition being W.P.(S) No. 1056 of 2011, which was allowed by the learned Single Judge vide judgment and order dated 27th September, 2013 and, hence, original respondent no.1 has preferred present Letters Patent Appeal. (vii) It further appears from the facts of the case that this respondent (original petitioner) even could not have been appointed as an In-charge Headmaster as on 31st December, 1981 because he had no requisite qualification in the form of minimum 7 years' experience as a teacher. Moreover, he got his appointment on 31st December, 1981 and on the very next day, the management of the school was taken over by the Government. This aspect of the matter has not been properly appreciated by the learned Single Judge while allowing the Writ Petition preferred by this respondent and, hence, the judgment and order delivered by the learned Single Judge in W.P.(S) No. 1056 of 2011, dated 27th September, 2013 deserves to be quashed and set aside. (viii) Moreover, it appears that the learned Single Judge has not properly appreciated Rule 2(7) to be read with Rule 4(1) to be read with Rule 4(3) of the Bihar Government Secondary School (Service Conditions) Rules, 1983, which prescribe minimum 7 years' experience as a teacher for being appointed as a founder Headmaster. This minimum qualification could not have been waived by any institution, much less, by this Court while exercising powers under Article 226 of the Constitution of India. The Court is mere interpreter of law, especially, when law is explicitly clearer and unambiguous. There was no scope for any interpretation, whatsoever. What is required by law, ought to be followed by the respondent and by the school management. (ix) Moreover looking to the judgment and order delivered by the learned Single Judge in W.P.(S) No. 1056 of 2011, it appears that much reliance is placed upon the judgment delivered in another Writ Petition being W.P.(S) No. 2700 of 2006, dated 12th December, 2008, but, the said judgment was overruled in L.P.A. No. 477 of 2009 vide judgment and order dated 4th July, 2017 and, hence also, the judgment and order delivered by the learned Single Judge in W.P.(S) No. 1056 of 2011, dated 27th September, 2013 deserves to be quashed and set aside. (x) It has been held by the Hon'ble Supreme Court in the case of Distt. Collector & Chairman, Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi, reported in, 1990 3 SCC 655, in paragraph 6, which reads as under: "6. It must further be realised by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No court should be a party to the perpetuation of the fraudulent practice. We are afraid that the Tribunal lost sight of this fact." (xi) It has been held by the Hon'ble Supreme Court in the case of Santosh Kumar Singh v. State of U.P., reported in, 1996 2 SCC 45, in paragraph 10, which reads as under: "10. It may be noticed at this stage that with effect from the enforcement of the Service Commission Act, 1980 the appointment to the post of teacher of any college which is an affiliated or associated college to which the privileges of affiliation or recognition has been granted by a university has to be made in accordance with the provisions contained in the Service Commission Act. Prior to the aforesaid Act came into force, every college had its own Selection Committee with certain nominees of the Vice-Chancellor therein in accordance with the State Universities Act, 1973. Lot of complaints of favouritism in the selection of candidates were made from time to time. To overcome the aforesaid shortcomings the legislature passed the Service Commission Act and Section 30 thereof has overriding effect. Under Section 12 of the Act every appointment as a teacher of any college has to be made by the Management only on the recommendation of the Commission. Section 16 in certain contingencies authorises the Management to make an ad hoc appointment for a specified period. Though Service Commission Act provides the procedure for making appointment to the post of teacher of a college affiliated to the University but it does not make any provision with regard to the qualification of such teacher. But the qualification has been prescribed in the statute of the University. Under Statute 11.13, in case of any college affiliated with the University minimum qualification for the post of lecturer in the Faculty of Arts (except the department of Fine Arts and Music) and the Faculties of Commerce and Science are: (a) An M. Phil. degree or a recognised degree beyond master's level or published work indicating the capacity of a candidate for independent research work; and (b) Consistently good academic record with at least first or high second class master's degree or an equivalent degree of a foreign university in a relevant subject. Clause 5 of said Statute 11.13 confers the power of relaxation on the Selection Committee which is extracted hereinbelow in extenso: (5) If the Selection Committee is of the view that the research work of a candidate as evident either from his thesis or from his published work is of a very high standard, it may relax any of the qualifications prescribed in subclause (b) of clause (1), or sub-clause (b) of clause (2), as the case may be." The aforesaid provision makes it clear that the relaxation is possible in respect of the qualification prescribed in sub-clause (b) and there cannot be any relaxation in respect of the qualification prescribed in subclause (a). Consequently a person is ineligible to be appointed as a lecturer unless he possesses the minimum qualification of M. Phil. degree or a recognised degree beyond master's level or published work indicating the capacity of the candidate for independent research work. Admittedly the appellant had not held even a master's degree on the date he was appointed as a teacher on 1-1- 1984, what to speak of a degree beyond master's level. It is no doubt true that in his application he had clearly indicated that he was pursuing his master's degree course and was in second year M.Sc. and, therefore, there was no concealment on his part and yet the Management of the College appointed him on ad hoc basis. But when the appellant did not have the minimum requisite qualification, as discussed earlier, in accordance with the University Statute the Committee of Management could not have relaxed the same and appointed him even on ad hoc basis. We also find it difficult to conceive that for the post of a lecturer to teach in postgraduate class, a student who is in second year M.Sc. class could at all be appointed. Mr Sanghi, learned Senior Counsel, however, placed strong reliance on the decision of the Court in Ram Sarup v. State of Haryana, where an appointment had been made to the post of Labour-cum-Conciliation Officer in breach of Rule 4 clause (1) of the rules and this Court had observed that such breach did not have the effect of rendering the appointment void but it merely made the appointment irregular and when the appointee acquired the necessary qualification, the appointment becomes regular from that date. In our considered opinion the ratio of the aforesaid case does not in any way help the appellant. In that case, clause (1) of Rule 4 which was under consideration before the court, provided that the person concerned must have 5 years' experience. The appointment had been made even though the appointee did not have the minimum experience of 5 years but undoubtedly he had the minimum educational qualification for the post and, therefore, this Court had observed that the appointment would be valid from the date when the appointee acquires the minimum period of experience. But in the case in hand the University Statute prescribes the minimum qualification for appointment to the post of a teacher as an M. Phil. degree or a recognised degree beyond master's level, in clause (a) of Statute 11.13 and further provides that the candidates should have consistently good academic record with at least first or high second class master's degree or an equivalent degree of a foreign university, in a relevant subject and clause 5 of Statute 11.13 empowers relaxation only of the conditions mentioned in clause (b). It is difficult for us to hold by applying the ratio of Ram Sarup on which Mr Sanghi relies that even the basic qualification can be relaxed. In our considered opinion the aforesaid decision of this Court is of no assistance to the appellant in the matter of relaxation of his qualification for appointment. In this view of the matter we unhesitatingly come to the conclusion that the initial ad hoc appointment of the appellant as a lecturer on 1-1-1984 was wholly without jurisdiction and such appointment could not have conferred the right of regularisation on the appellant by virtue of the Regularisation Ordinance which was later on replaced by an Act and Section 31-B was inserted into the Service Commission Act. Then again under Section 16 of the Service Commission Act an ad hoc appointment can be made only when the Management notifies a vacancy to the Commission and Commission fails to recommend the name of a suitable candidate within 3 months from the date of such notification. It is not the case of the appellant nor is there any material on record to establish that prior to 1-1- 1984 the Management had at all notified the vacancy to the Commission in accordance with sub-section (2) of Section 12 of the Service Commission Act and the Commission failed to recommend the name within 3 months. Consequently the condition precedent for making ad hoc appointment in terms of Section 16 of the Service Commission Act had not been satisfied before making the ad hoc appointment of the appellant on 1-1-1984 and on this score also the appointment must be held to be invalid and inoperative." (xii) It has been held by the Hon'ble Supreme Court in the case of Mohd. Sartaj v. State of U.P., reported in, 2006 2 SCC 315, in paragraph 21, which reads as under: "21. The contention of the learned counsel for the appellants is that the State by various orders had given equivalence to the degree of Moallim-e-Urdu granted by Jamia Urdu, Aligarh with that of Basic Teacher's Certificate, is not correct. In the government order dated 28-1-1985 the Governor was pleased to approve the candidates in State services who qualified Moallim-e-Urdu granted by Jamia Urdu, Aligarh and who had got experience of teaching Urdu at Higher Secondary schools. This order did not provide for equivalence of Moallim-e-Urdu granted by Jamia Urdu, Aligarh, to that of BTC. Another order dated 28-10-1988 issued by the Government, which was clarificatory in nature, to all Heads of Departments and the Chief of Officials of the U.P. Karmik Anubhag, directed that the candidates who have got degree of Moallim-e-Urdu granted by Jamia Urdu, Aligarh and who had experience of teaching Urdu at Higher Secondary level may be appointed in State services. This also does not indicate the equivalence of Moallim-e-Urdu granted by Jamia Urdu, Aligarh to that of BTC. The aforesaid two orders only indicate that the persons who are having degree of Moallim-e-Urdu granted by Jamia Urdu, Aligarh, can be appointed in the State services. The orders do not equate the degree of Moallim-e-Urdu granted by Jamia Urdu, Aligarh to that of Basic Teacher's Certificate, Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of Teaching or any other training course, indicated in the Rule. As far as the training is concerned there is no equivalence of the Certificate of Moallim-e-Urdu. It is for the first time by order dated 13-9-1994 the Government issued an order whereby the Governor granted a sanction that Moallim-e-Urdu degree for teaching Urdu in junior/senior basic schools is equivalent to BTC. It is settled law that that qualification should have been seen which the candidate possessed on the date of recruitment and not at a later stage unless rules to that regard permit it. The minimum qualification prescribed under Rule 8 should be fulfilled on the date of recruitment. Equivalence of degree of Moallim-e-Urdu granted by Jamia Urdu, Aligarh with that of BTC in the year 1994 would not entail the benefit to the appellants on the date they were appointed. The appellants could not have been appointed to the post of Assistant Teachers without having training required under Rule 8. That being the case, the appointments of the appellants were dehors the Rules and could not be treated to be continued. For the aforesaid reasons, we do not find any substance in the appeals and they are, accordingly, dismissed. However, in the circumstances of the case, there shall be no order as to costs." (xiii) It has been held by the Hon'ble Supreme Court in the case of Rakesh Kumar Sharma v. State (NCT of Delhi), reported in, 2013 11 SCC 58, in paragraphs 21, 22 and 23, which read as under: "21. In the instant case, the appellant did not possess the requisite qualification on the last date of submission of the application though he applied representing that he possessed the same. The letter of offer of appointment was issued to him which was provisional and conditional subject to the verification of educational qualification i.e. eligibility, character verification, etc. Clause 11 of the letter of offer of appointment dated 23-2-2009 made it clear that in case character is not certified or he did not possess the qualification, the services will be terminated. The legal proposition that emerges from the settled position of law as enumerated above is that the result of the examination does not relate back to the date of examination. A person would possess qualification only on the date of declaration of the result. Thus, in view of the above, no exception can be taken to the judgment of the High Court. 22. It also needs to be noted that like the present appellant there could be large number of candidates who were not eligible as per the requirement of rules/advertisement since they did not possess the required eligibility on the last date of submission of the application forms. Granting any benefit to the appellant would be violative of the doctrine of equality, a backbone of the fundamental rights under our Constitution. A large number of such candidates may not have applied considering themselves to be ineligible adhering to the statutory rules and the terms of the advertisement. 23. There is no obligation on the court to protect an illegal appointment. The extraordinary power of the court should be used only in an appropriate case to advance the cause of justice and not to defeat the rights of others or create arbitrariness. Usurpation of a post by an ineligible candidate in any circumstance is impermissible. The process of verification and notice of termination in the instant case followed within a very short proximity of the appointment and was not delayed at all so as to even remotely give rise to an expectancy of continuance."
(3.) The aforesaid facts, reasons and judicial pronouncements have not been properly appreciated by the learned Single Judge while allowing the Writ Petition being W.P. (S) No. 1056 of 2011 vide judgment and order dated 27th September, 2013 and, hence, the same is, hereby, quashed and set aside.;