Nigma Devi vs State of Himachal Pradesh and Others

V.K. Sharma, J.—Admittedly, this case is covered under judgment, dated 6.8.2010 of this Court in CWP (T) No. 4595 of 2008, titled Sarojni Devi v. State of Himachal Pradesh and Ors. text whereof is reproduced below in extenso:

Petitioner was issued call letter for the post of Language Teacher by Respondent-Department on 9.1.1990. She appeared before the interview Board alongwith Respondent No. 3 on 7.2.1990. The result was declared on 20.2.1995 as per Annexure A-7. Petitioner''s name did not find mention in the list, however, Respondent No. 3 was recommended by the Selection Committee.

Mr. M.A. Khan has strenuously argued that his client was fully eligible and qualified to be appointed to the post of Language Teacher. He then contended that similarly situate Respondent No. 3 has been offered appointment to the post of Language Teacher.

Mr. R.P. Singh, learned Assistant Advocate General and Mr. D.P. Gupta have supported the selection of Respondent No. 3 to the post of Language Teacher.

I have heard the learned Counsel for the parties and perused the record carefully.

Respondent-State has framed the rules called "the Himachal Pradesh Education Department Class-III (School and Inspection Cadre) Service (Second Amendment) Rules, 1975". The minimum qualification required for the post of Hindi Teacher reads thus:

Prabhakar (Honours in Hindi) with Matric (full) and L.T. Training or J.B. T. (two years training) from a recognized University/institution.

Petitioner and Respondent No. 3 have obtained Hindi Qualifying Certificate from Central Institute of Hindi Agra on 6.10.1989 and 26.8.1989, respectively. The certificate issued by the Central Institute of Hindi, Agra is not recognized by the State of Himachal Pradesh. Petitioner has not placed tangible material on record to establish that the Central Institute of Hindi, Agra is either a Board or University established under the Central or State Act. The diplomas/certificates/degrees can only be granted by the institutions which are set up by the Central or the State Act and affiliated with the University Grants Commission.

Their Lordships of the Hon''ble Supreme Court in Pramod Kumar Vs. U.P. Secondary Education Services Commission and Others, have held as under:

The qualifications for holding a post have been laid down under a statute, any appointment in violation thereof would be a nullity. It is a matter of some concern that appointments are being offered by the authorities of the State without verifying the fact as to whether the degree(s) possessed by the candidate(s) are valid or not. It was an ad hoc appointment. Why despite the same, he was allowed to obtain degree from another university is not known. 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 regularized, particularly, when the statute in no unmistakable term says so. Only an irregularity can be (See Secretary, State of Karnataka and Others Vs. Umadevi and Others, National Fertilizers Ltd. and Others Vs. Somvir Singh, and Post Master General, Kolkata and Others Vs. Tutu Das (Dutta), .

Various institutions have sprung up in different parts of India representing that their degrees are recognized. However, even no such representation appears to have been made to the Appellant by the said institution. The directory of institutions for higher education merely gives details of the institutions. No statement was made therein that it was a recognised university.

Maithil Vishwa Vidyapeeth Sankat Mochan Dham was a name given to an institution. It was not a University. It is said to have been founded in the year 1962. Admittedly, it is a privately managed institution. Although it offered a large number of courses like Madhyama, Visarad, Shastri, Acharya, Vidyabhaskar, Vidyaratna, Vidyavaridhi,Vidyavachaspati, Mahamah- opadhyaya, the number of teachers therein were nine only. What sort of education was imparted therein is not known. How an institution could be run with a teacher strength of nine can very well be imagined.

It is not in dispute that the said institution was not recognized by any University. A degree is recognized only if it is granted by a University constituted in terms of the University Grants Commission Act, 1956 or under any State Or Parliamentary Act. No University can be established by a private management without any statutory backing.

The management of the school, when it came to learn that the Appellant did not possess a degree of B. Ed, from a recognised University, should have terminated his services forthwith. It did not do so for reasons best known to it. It has not been shown to us that the management of the school had any authority to allow the Appellant to obtain the requisite degree from any other University during the tenure of his services. Even the Commission in its counter affidavit, although otherwise supports the case of the Appellant, did not say so.

It is in these circumstances that Petitioner was not found qualified for the post of Language Teacher. However, surprisingly, Respondent No. 3, who is possessing the same qualification has been appointed to the post of Language Teacher and is working as such as per the orders passed by the erstwhile Himachal Pradesh Administrative Tribunal in OA No. 1049/1992 and 830/1993. It has come in the reply that Respondent No. 3 has also been issued notice and after the receipt of the reply, her services will be terminated.

Mr. M.A. Khan has strenuously argued that since Respondent No. 3 has been appointed as Language Teacher, his client should also be appointed as Language Teacher. There cannot be perpetuity of illegality. Article 14 of the Constitution of India is a positive concept. Petitioner cannot get any advantage of the wrong appointment of Respondent No. 3, which has been made in contravention of law and this fact has been admitted in the reply. There cannot be any equity available to those who are neither qualified nor eligible as per the Recruitment and Promotion Rules.

Their Lordships of the Hon''ble Supreme Court in State of Bihar Vs. Upendra Narayan Singh and Others, have held that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. Their Lordships have held as under:

By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior Court for repeating or multiplying the same irregularity or illegality or for passing wrong order - Chandigarh Administration and another Vs. Jagjit Singh and another, , Secretary, Jaipur Development Authority, Jaipur Vs. Daulat Mal Jain and Others, , Union of India (UOI) Railway Board and Ors. v. J.V. Subhaiah and Ors. : (1996) 2 SCC 258, Gursharan Singh and others etc. Vs. New Delhi Municipal Committee and others, , State of Haryana v. Ram Kumar Mann : (1997) 1 SCC 35, M/s. Faridabad Ct. Scan center Vs. D.G. Health Services and others, , M/s. Style (Dress Land) Vs. Union Territory Chandigarh and Another, and State of Bihar and Others Vs. Kameshwar Prasad Singh and Another, , Union of India (UOI) and Another Vs. International Trading Co. and Another, and Directorate of Film Festivals and Others Vs. Gaurav Ashwin Jain and Others, .

Their Lordships of the Hon''ble Supreme Court in State of Uttaranchal Vs. Alok Sharma and Others, have held that equality does not apply to illegality. Their Lordships have held as under:

Our attention has been drawn to an additional affidavit filed by the Respondents wherein inter alia it has been shown that a large number of employees who had been absorbed were initially appointed after 1.10.1986. Article 14 carries with it a positive concept. It would have no application in the matter of enforcement of an order which has its source in illegality. In other words, equality cannot be applied in illegality. See Post Master General, Kolkata (supra) and Punjab State Electricity Board and Others Vs. Gurmail Singh,

Accordingly, there is no merit in the petition and the same is dismissed. Respondent-State is directed to take necessary steps for terminating the services of Respondent No. 3, who has been appointed on the basis of degree/ certificate not recognized by the State Government. Needful be done within a period of four weeks from today. No costs.

In view of the above, the petition is dismissed as the diploma acquired by the Petitioner has been held not to be recognized by the State Government for employment in terms of the judgment referred to hereinabove.