Case: STATE OF ODISHA &amp; ORS. ETC.ETC Vs. SULEKH CHANDRA PRADHAN ETC. ETC

the said Rules are not applicable. The said Rules would clearly show that they are applicable to Aided Educational Institution. Undisputedly, the institutions in which the applicants/teachers were appointed, were recognized as Aided M.E. Schools vide G.O. dated 12th September, 1980. It is also not in dispute that the appointments so made were subsequent to the schools being recognized as Aided Schools. As such, the contention in that regard deserves to be rejected. 34. We further find that the Tribunal, while delivering the judgment and order dated 18th May, 2017 and 30th January, 2018, has failed to take into consideration the earlier orders dated 25th June, 2013 and 23rd September, 2013 delivered by the same Tribunal. In the said orders of 2013, the Tribunal had elaborately considered the provisions of the said Rules and found no merit in the contentions raised on behalf of the applicants therein. The orders passed by the Tribunal ignoring its earlier orders, which were passed elaborately considering the scheme of the said Rules, are totally contrary to the well- established norms of judicial propriety. The situation becomes graver, inasmuch as, the Tribunal has allowed O.A. No.2270 OF 2015 by its order dated 18th May, 2017 filed by Sri Antaryami Bal, whose earlier application being O.A. No. 4029(2) of 1996 with regard to the same relief was rejected by the Tribunal vide its earlier order dated 12th April, 2012. The orders passed by the Tribunal are, therefore, totally unsustainable in view of the law laid down by this Court in the case of Official Liquidator vs. Dayanand and others (supra). Not only this, the Tribunal as well as the High Court has failed to take into consideration the order passed by this Court on 2nd December, 1996 in Civil Appeal No. 15712 of 1996 (1997) 2 SCC 635 . 35. The impugned order passed by the High Court depicts total non--application of mind. Whereas the cause title would itself show that a Writ Petition (Civil) No.6557 of 2018 is disposed of by the impugned judgment, the High Court observed that the order dated 18th May, 2017, passed by the Tribunal in O.A. No.2266 of 2015, has not been challenged by the State. Whereas the teachers have hardly worked for four years and a substantial part thereof on account of interim orders passed by the High Court, the High Court goes on to observe that the teachers have worked for a period of more than 20 years. No reasons, leave aside sound reasons, are reflected in the impugned order while dismissing the writ petitions filed by the State. 36. That leaves us with the submission of Shri R. Balasubramanian, learned Senior Counsel that since the view taken by the Tribunal has been affirmed by the High Court and the Special Leave Petition challenging the same has been dismissed, the view of the Tribunal has become final. In this respect, reliance could be placed on the judgment of this Court in the case of Kunhayammed and others vs. State of Kerala and another (2000) 6 SCC 359, wherein this Court has held as under: 27. A petition for leave to appeal to this Court may be dismissed by a non--speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non--speaking order, i.e., it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared. If the order of dismissal be supported by reasons then also the doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal. We have already dealt with this aspect earlier. Still the reasons stated by the Court would attract applicability of Article 141 of the Constitution if there is a law declared by the Supreme Court which obviously would be binding on all the courts and tribunals in India and certainly the parties thereto. The statement contained in the order other than on points of law would be binding on the parties and the court or tribunal, whose order was under challenge on the principle of judicial discipline, this Court being the Apex Court of the country. No court or tribunal or parties would have the liberty of taking or canvassing any view contrary to the one expressed by this Court. The order of Supreme Court would mean that it has declared the law and in that light the case was considered not fit for grant of leave. The declaration of law will be governed by Article 141 but still, the case not being one where leave was granted, the doctrine of merger does not apply. The Court sometimes leaves the question of law open. Or it sometimes briefly lays down the principle, may be, contrary to the one laid down by the High Court and yet would dismiss the special leave petition. The reasons given are intended for purposes of Article 141. This is so done because in the event of merely dismissing the special leave petition, it is likely that an argument could be advanced in the High Court that the Supreme Court has to be understood as not to have differed in law with the High Court. [emphasis supplied] 37. It is thus clear that a mere dismissal of the Special Leave Petition would not mean that the view of the High Court has been approved by this Court. As such, the contention in that regard is rejected. 38. We are, therefore, of the considered view that the Tribunal has erred in allowing the Original Applications of the applicants/teachers. Similarly, the High Court has also erred in dismissing the petitions filed by the appellants.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]27. Perusal of the Sub--rule (1) of Rule 5 of the said Rules would show that the Secretary of the Managing Committee or the Governing Body, as the case may be, of an Aided Educational Institution, is required to apply to the Selection Board on or before the thirty--first day of August every year with copy of each application to the concerned Inspector of Schools and Director of Higher Education. The Inspector of Schools and the Director of Higher Education are required to process the applications so received and transmit the same to the Selection Board by thirtieth day of September every year with certificate of genuineness of the vacancy/vacancies. Perusal of Sub--rule (2) of Rule 5 of the said Rules would show that the Selection Board shall 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.28. Perusal of Sub--rule (6) of Rule 5 of the said Rules would reveal that if the Management defaults in making appointment of candidates allotted by the Director, he shall be competent to withhold the individual teachers cost of the grant-in-aid to be paid to the institution concerned. He is also entitled to take steps to supersede the Managing Committee or the Governing Body, as the case may be. Under Sub--rule (8) of Rule 5 of the said Rules, the relaxation is granted for filling up the vacancies for a period of six months or till the date of receipt of the list as referred to in Sub--rule (2) of Rule 5 of the said Rules. However, the same has to be with the prior approval of the Inspector in respect of an institution other than a College and of the Director in respect of a College.30. It could thus be clearly seen that a detailed selection procedure is prescribed for making appointment of vacancies arising in Aided Educational Institution.31. Perusal of the approval order dated 12th September, 1980 of the Government of Orissa, Education and Youth Service Department, would reveal that for each M.E. School, only two posts, i.e., one post of a Trained Graduate Headmaster and one post of a Trained Matric Teacher, have been sanctioned. The order clearly provides that no other post of teaching and non--teaching staff would be permitted.32. It is not in dispute that the appointment of all the applicants/respondents/teachers have been made directly by the respective Management without following the procedure as prescribed under the Rules/Statute. It is a trite law that the appointments made in contravention of the statutory provisions are void ab initio. Reference in this respect could be made to the judgments of this Court in the cases of Ayurvidya Prasarak Mandal and another vs. Geeta Bhaskar Pendse (Mrs) and others (1991) 3 SCC 246,  J & K Public Service Commission and others vs. Dr. Narinder Mohan and others (1994) 2 SCC 630,  Official Liquidator vs. Dayanand and others (2008) 10 SCC 1,  and Union of India and another vs. Raghuwar Pal Singh (2018) 15 SCC 463 .33. We are unable to accept the contention raised by Shri Gaurav Agrawal and Shri R. Balasubramanian that since the applicants/teachers were appointed on posts which were not on grant-in-aid basis, the said Rules are not applicable. The said Rules would clearly show that they are applicable to Aided Educational Institution. Undisputedly, the institutions in which the applicants/teachers were appointed, were recognized as Aided M.E. Schools vide G.O. dated 12th September, 1980. It is also not in dispute that the appointments so made were subsequent to the schools being recognized as Aided Schools. As such, the contention in that regard deserves to be rejected.34. We further find that the Tribunal, while delivering the judgment and order dated 18th May, 2017 and 30th January, 2018, has failed to take into consideration the earlier orders dated 25th June, 2013 and 23rd September, 2013 delivered by the same Tribunal. In the said orders of 2013, the Tribunal had elaborately considered the provisions of the said Rules and found no merit in the contentions raised on behalf of the applicants therein. The orders passed by the Tribunal ignoring its earlier orders, which were passed elaborately considering the scheme of the said Rules, are totally contrary to the well- established norms of judicial propriety. The situation becomes graver, inasmuch as, the Tribunal has allowed O.A. No.2270 OF 2015 by its order dated 18th May, 2017 filed by Sri Antaryami Bal, whose earlier application being O.A. No. 4029(2) of 1996 with regard to the same relief was rejected by the Tribunal vide its earlier order dated 12th April, 2012. The orders passed by the Tribunal are, therefore, totally unsustainable in view of the law laid down by this Court in the case of Official Liquidator vs. Dayanand and others (supra). Not only this, the Tribunal as well as the High Court has failed to take into consideration the order passed by this Court on 2nd December, 1996 in Civil Appeal No. 15712 of 1996 (1997) 2 SCC 635 .35. The impugned order passed by the High Court depicts total non--application of mind. Whereas the cause title would itself show that a Writ Petition (Civil) No.6557 of 2018 is disposed of by the impugned judgment, the High Court observed that the order dated 18th May, 2017, passed by the Tribunal in O.A. No.2266 of 2015, has not been challenged by the State. Whereas the teachers have hardly worked for four years and a substantial part thereof on account of interim orders passed by the High Court, the High Court goes on to observe that the teachers have worked for a period of more than 20 years. No reasons, leave aside sound reasons, are reflected in the impugned order while dismissing the writ petitions filed by the State.In this respect, reliance could be placed on the judgment of this Court in the case of Kunhayammed and others vs. State of Kerala and another (2000) 6 SCC 359,  wherein this Court has held as under:27. A petition for leave to appeal to this Court may be dismissed by a non--speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non--speaking order, i.e., it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared. If the order of dismissal be supported by reasons then also the doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal. We have already dealt with this aspect earlier. Still the reasons stated by the Court would attract applicability of Article 141 of the Constitution if there is a law declared by the Supreme Court which obviously would be binding on all the courts and tribunals in India and certainly the parties thereto. The statement contained in the order other than on points of law would be binding on the parties and the court or tribunal, whose order was under challenge on the principle of judicial discipline, this Court being the Apex Court of the country. No court or tribunal or parties would have the liberty of taking or canvassing any view contrary to the one expressed by this Court. The order of Supreme Court would mean that it has declared the law and in that light the case was considered not fit for grant of leave. The declaration of law will be governed by Article 141 but still, the case not being one where leave was granted, the doctrine of merger does not apply. The Court sometimes leaves the question of law open. Or it sometimes briefly lays down the principle, may be, contrary to the one laid down by the High Court and yet would dismiss the special leave petition. The reasons given are intended for purposes of Article 141. This is so done because in the event of merely dismissing the special leave petition, it is likely that an argument could be advanced in the High Court that the Supreme Court has to be understood as not to have differed in law with the High Court.37. It is thus clear that a mere dismissal of the Special Leave Petition would not mean that the view of the High Court has been approved by this Court. As such, the contention in that regard is rejected.38. We are, therefore, of the considered view that the Tribunal has erred in allowing the Original Applications of the applicants/teachers. Similarly, the High Court has also erred in dismissing the petitions filed by the appellants.