Full Judgment Text
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CASE NO.:
Appeal (civil) 8425 of 2002
PETITIONER:
Sultan Sadik
RESPONDENT:
Sanjay Raj Subba and Ors.
DATE OF JUDGMENT: 05/01/2004
BENCH:
CJI & S.B. Sinha.
JUDGMENT:
J U D G M E N T
S.B. SINHA :
The appellant herein was elected from 110 Naoboicha
Legislative Assembly Constituency in the State of Assam. An
election petition was filed by the first respondent herein
questioning the election of the appellant in terms of
Sections 100 (1) of the Representation of the People Act,
1951 (hereinafter referred to and called as ’the said Act’,
for the sake of brevity), on the ground that he stood
disqualified being the holder of a post of profit under the
State of Assam.
BACKGROUND FACTS :
The appellant was said to have been appointed as an
Assistant Teacher in ’Pabha Chariali M.E. Madarassa School’
(hereinafter referred to as ’the said School’). He was
working therein as an Assistant Teacher without any
remuneration. Primary education is imparted in the said
School. It appears that the primary education in the State
of Assam used to be governed by three Acts, known as ’Assam
Basic Education Act, 1954’, Assam, Elementary Education Act,
1962’ and ’Assam Elementary Education Act, 1968’.
In terms of the 1968 Act, the Regional Boards of
Elementary Education were constituted which took over the
management of elementary schools and pre-primary schools.
There also existed a State Board of Elementary Education
constituted under Section 4 of Assam Elementary Education
Act, 1968.
The State thereafter enacted the Assam Elementary
Education (Provincialisation) Act, 1974 (Assam Act No. VI of
1975) to provide for provincialisation of the elementary
education in the State of Assam, in terms whereof the
services of employees of the different categories of the
State Board and Regional Boards for Elementary Education
were to be provincialised for the purpose of bringing them
under the direct management and control of the State
Government. Pursuant to or in furtherance of the said Act,
all assets and liabilities of the State Board and all
Regional Boards vested in the State Government. In terms of
Section 3 of the 1974 Act, the services of all teachers of
elementary schools and pre-primary schools maintained by the
Regional Boards of Elementary Education, all employees of
the State Board of Elementary Education, all teachers
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appointed by the Regional Boards of Elementary Education and
all ministerial staff appointed by the State Board of
Elementary Education were provincialised under the said Act.
The consequence of vesting of the institutions maintained by
the authorities under the aforementioned three Acts is
provided in Section 4A thereof which reads thus :
"Services of all teachers and employees
who rendered services under the
following repealed Acts and whose
services are taken over by the
Government on provincialisation on 5th
September, 1975 under the principal Act
shall be deemed to be services under the
Government and shall qualify and count
for pension and other retirement
benefits."
Section 27 (1) of the 1974 Act provides for rule making
power. Pursuant to or in furtherance thereof, the State of
Assam made rules for regulating the terms and conditions of
services of teachers of elementary schools and employees
employed therein known as ’the Assam Elementary Education
(Provincialisation) Service and Conduct Rules, 1981
(hereinafter referred to as ’the 1981 Rules’).
"Service" has been defined in Rule 2(xii) of the 1981
Rules to mean :
"’Service’ means service rendered under
the State Board for Elementary Education
constituted under the Assam Elementary
Education Act, 1968 and service rendered
under the Government before or after
provincialisation both in respect of
teachers and other employees."
Rule 3(i) of the said Rules reads thus :
"Terms and Conditions : The services of
all teachers of Elementary Education
taken over by the Government on
provincialisation on 5th September,
1975, as provided under Section 3 of the
Assam Elementary Education
(Provincialisation) Act, 1974, as
amended, shall be subject to the
following conditions :
(a) Services rendered during the repealed
Acts :-
The Assam Basic Education Act, 1954 (Act
XXVI of 1954), the Assam Elementary
Education Act, 1962 (Act XXX of 1962),
and the Assam Elementary Education Act,
1968 (Act XVIII) of 1969) shall be
counted towards pension and other
retirement benefits provided such
services are substantive and permanent.
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Explanation : Services rendered
temporarily against leave or deputation
vacancies shall be excluded.
(b) They shall be entitled to such scales of
pay and allowances and other benefits as
may be admissible to the teachers of
corresponding rank of the Government
School services with effect from the
date of provincialisation.
(c) They shall be superannuated on
attaining 58 years of age."
The said school was not being maintained by any
authority constituted under any of the aforementioned
statutes. A notification, however, was issued on or about
19.11.1991 whereby and whereunder the said school was
provincialised. Indisputably, the names of the appellant
herein and a large number of teachers were dropped from the
list of approved teachers and their services had not been
provincialised under the provisions of the 1974 Act.
All Assam Middle English School Association of which
the appellant is said to be a member filed a writ petition
before the Assam High Court for regularization of services
of the dropped teachers, which was marked as Writ Petition
No.2833 of 1997. The said writ petition was dismissed where-
against an appeal before the Division Bench was filed being
Writ Appeal No.474 of 1997. The Division Bench while
reversing the judgment of the learned Single Judge by reason
of a judgment and order dated 13.11.1998, inter alia,
directed :
"For the purpose of enabling the
Government to complete process of
regularization/provincialisation, the
appellants association will furnish all
necessary documents and particulars
including names of concerned assistant
teachers to the Director of Elementary
Education, Assam, within two weeks from
today. It will be open for the State
Government to consider
regularization/provincialisation of
Assistant Teachers dropped at the time
of provincialisation of ME and ME
Madrassas during the year 1991-92 in
addition to 1123 Assistant Teachers in
case they find genuineness in the claims
of such additional Assistant Teachers.
The impugned order dated 25.6.97 of
the learned Single Judge passed in CR
No.2833/97 is set aside and the writ
appeal is disposed of in terms of the
aforesaid directions. But considering,
however, the facts and circumstances of
the case, the parties shall bear their
own costs."
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Pursuant to or in furtherance of the said directions,
the services of 190 working teachers were sought to be
regularized w.e.f. 24.4.1998 by an order dated 8.1.1999
stating :
"...The services of the teachers may be
regularized out of the posts already
allotted to you vide this office letter
No.EPD/OB/6/98/156 dated 24.4.98.
Before issuing the regularization order
to the working teacher concern the Dist.
Ele. Edn. Oficer should authenticate the
same. The name of the teachers and the
name of the schools as furnished the
list received from Govt. The
regularization of service of working
teachers should be made on seniority
basis as per physical verification
report of Dist. Ele. Edn. Officer
concerned and were working before the
date of provincialisation of school and
duly approval of the posts against
section. No teachers should be
regularized in case of readjustment of
schools as per need of enrolment without
prior approval of this Directorate..."
It appears that the District Elementary Education
Officer by a letter dated 16.12.1999 addressed to the
Secretary to the Government of Assam allegedly informed the
latter about regularization of 97 numbers of dropped
teachers and brought to his notice that it may be necessary
to take steps for regularization of other teachers by
creating posts therefor. As, allegedly, the order of the
High Court was not complied with, a contempt petition was
filed wherein in his affidavit the District Elementary
Education Officer alleged that in compliance with the order
of the court dated 13.11.1998, the services of 105 dropped
teachers were regularized w.e.f. 24.4.1998 by an order dated
30.10.2000, and therein the name of the appellant found
place at Sl. No.28. It, however, appears that the appellant
herein stopped attending the said school whereafter the Head
Master of the said School by letters dated 2.5.2000,
12.6.2000 and 21.8.2000 asked the appellant to come to the
school with sufficient cause for his absence failing which
action would be taken against him. The appellant neither
joined the School nor replied to the said notices. The
Managing Committee of the said School adopted a resolution
to the following effect :
"Since Md. Sultan Sadique,
Assistant Teacher has unauthorisedly
been absent from his duty without any
notice/intimation and it has been
informed him on 2.5.2000, 12.6.2000 and
21.8.2000 by serving written notices.
But no reply has been received from him
in this regard.
The matter has thoroughly been
discussed in today’s and unanimously
decides that in the interest of the
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school, Md. Sultan Sadik, Assistant
Teacher of the Pabha Charali M.E.
Madrassa has been released from his post
with immediate effect.
It has also been decided to inform
the authority concerned to take
necessary action."
A copy of the said resolution was forwarded to the
appellant herein and a copy thereof was sent to the District
Elementary Education Officer and the Block Elementary
Education Officer by the Head Master of the said School by
letter dated 30.8.2000, which is to the following effect :
"Office of the Head Master and
Secretary Pabha Charali ME Madrassa,
P.O. Kutubpur : Dist. Lakhimpur
Date : 30.8.2000
To
Md. Sultan Sadik
Assistant Teacher
Pabha Charali M.E. Madrassa
Subject : Release from service
Sir,
With reference to the subject cited
above and due respect it has been
informed you that the Managing Committee
of Pabha Charali M.E. Madrassa vide its
resolution No.1 passed in its meeting
held on 25.8.2000 decided to release you
from the post of Assistant Teacher from
Pabha Charali M.E. Madrassa.
This decision will be implemented
with immediate effect.
Sincerely yours,
Sd/- illegible
Seal : Headmaster
Pabha Charali M.E.
Madrass, PO Kutubpur
Dist. Lakhimpur"
It is not in dispute that that the appellant herein
despite receipt of the said purported order dated 30.8.2000
did not question the legality or validity thereof. He
accepted the said order.
A notification for holding an election was issued on
16.4.2001. The appellant and the first respondent herein
amongst others pursuant thereto filed their nomination
papers. The first respondent herein filed objections to the
nomination of the appellant on the ground that he was a
Government employee and hence ineligible for contesting the
election. The appellant herein took the stand that as
despite order of regularization passed in his favour, he did
not join duties nor received any salary, he was not a
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Government employee. The said plea was accepted. In the
election, as noticed hereinbefore, the appellant was elected
whereafter the election petition was filed by the first
respondent.
ISSUES :
The High Court having regard to the pleadings of the
parties, inter alia, framed the following issues:
"(5) Whether the Respondent No.1 on the
date of his nomination held any
office of profit ?
(6) Whether on the date of scrutiny of
nomination papers and also on the
date of election the Respondent
No.1 was disqualified for being
chosen to the Legislative Assembly
of the 191(1)(A) of the Indian
Constitution and Section 100(1)(a)
and Section 100(1((d)(iv) of the
Act ?"
HIGH COURT JUDGMENT :
The High Court in its impugned judgment held that : (i)
an Assistant Teacher in the school whose services had been
provincialised by the Government of Assam would be holder of
an office of profit under the State of Assam, in view of the
order of the High Court in Writ Appeal No.474 of 1997
whereby and whereunder the State was directed to consider
cases of 1123 dropped teachers for
regularization/provincialisation; (ii) As pursuant to or in
furtherance thereof the services of several teachers
including that of the appellant were regularized in terms of
order dated 8.1.1999 (Ext.9) as also the order dated
30.10.2000 (Ext.14) wherein the name of the appellant found
place at Sl. No.28, he would be deemed to have become an
Assistant Teacher with retrospective effect from 24.4.1998.
Keeping in view the fact that the appellant was in
Government service on 25.8.2000, the Managing Committee of
the said school had no authority to terminate his services
without approval of the appropriate authority of the
Government thereabout; (iii) Although proceedings of the
Managing Committee bore the endorsement of the Block
Elementary Education Officer, it had no authority to
terminate the services of the appellant. Even if the
appellant was a dropped teacher, the question of the
Managing Committee releasing or relieving him would not
arise and, thus, the said order dated 25.8.2000 is of no
legal effect; (iv) There is no explanation as to why even
after 30.8.2000 the Head Master requested the District
Elementary Education Officer to take action against the
appellant for his absence from duty, which also shows that
the Head Master considered him to be a regularized teacher
on that day; (v) The letter dated 30.10.2000 must be
presumed to have been served upon the appellant in terms of
Section 114 of the Evidence Act; (vi) As the effect of
regularization of provincialisation/regularization has been
provided for under the Act, the non-joining or non-drawing
of any salary by the appellant was irrelevant.
On the aforementioned findings, the election petition
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was allowed by the High Court.
SUBMISSIONS :
Mr. V.A. Mohta, learned Senior Counsel appearing on
behalf of the appellant would submit that having regard to
the fact that the appellant had been served with notices on
2.5.2000, 12.6.2000 and 21.8.2000 by the School and
furthermore in view of the order dated 30.8.2000 as also the
resolution of the Managing Committee dated 25.8.2000, the
purported order of regularization dated 30.10.2000 cannot be
said to have been acted upon. The learned counsel would
urge that the High Court committed a manifest error insofar
as it failed to consider the purport of the letter dated
30.8.2000 (Ext.G), genuineness whereof is not in dispute.
Mr. Mohta would submit that as the appellant has accepted
the said order of termination, the first respondent had no
locus standi to question the same. Our attention in this
behalf has also been drawn to the show cause filed by the
District Elementary Education Officer, Lakhimpur in the
contempt proceedings. The learned counsel would contend
that as the order of regularization was passed only on
30.10.2000, the same was non est in the eye of law. It was
further submitted that even from the said order dated
30.10.2000, it would appear that one Naseema Begum claimed
seniority over the appellant on the ground that he
superseded her and, thus, even the order of regularization
did not attain finality. The learned counsel would submit
that in terms of Rule 8 of 1981 Rules, a register is
required to be opened at the beginning of service by the DI
of School and as no service records had been opened the
appellant cannot be said to be holder of an office of profit
under the State. Relying on or on the basis of a decision
in R.P. Moidutty vs. P.T. Kunju Mohammad and Another [(2000)
1 SCC 481], the learned counsel would argue that the first
respondent herein has failed to discharge his heavy onus.
Mr. Mohta would also contend that the High Court committed
an error in setting aside the election on mere surmises and
conjectures.
Mr. U.N. Bachawat, learned Senior Counsel appearing on
behalf of the respondents, on the other hand, would submit
that the expression ’regularization’ connotes that the
services of a person who has irregularly been appointed
would be made regular and, thus, such an order can be given
to have a retrospective effect. Strong reliance, in this
regard has been placed on State of Mysore and Another vs.
S.V. Narayanappa [AIR 1967 SC 1071] and B.N. Nagarajan and
Others etc. vs. State of Karnataka and Others etc. [AIR
1979 SC 1676].
The learned counsel would contend that as the
institution stood provincialised in terms of notification
dated 19.11.1991 issued by the State of Assam, as would
appear from the deposition of the Head Master of the School,
the consequences provided for in Section 4A of the Act and
Rule 3 of the 1981 Rules shall ensue in terms whereof the
appellant would be deemed to be a Government servant with
retrospective effect from 24.4.1998. Mr. Bachawat would urge
that keeping in view of the provisions of Section 87 of the
Representation of the People Act and having regard to the
pleadings of the parties as contained in Para 16 of the
election petition and para 18 of the written statement
wherefrom it would appear that the factum of provincialism
had not been denied or disputed and, thus, the same would be
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deemed to have been admitted and, in that view of the matter
it was not necessary for the High Court to consider the
effect of mode of provincialisation of teachers. The
learned counsel would contend that the role of the Managing
Committee of a provincialised school being a limited one,
the purported resolution dated 25.8.2000 and letter dated
30.10.2000 being wholly illegal and without jurisdiction ,
the same would be non est in the eye of law. Strong
reliance in this behalf has been placed on Mysore State Road
Transport Corporation vs. Mirja Khasim Ali Beg and Another
[AIR 1977 SC 747]. The learned counsel would submit that in
view of the aforementioned legal position, it was not even
necessary for the authorities of the State of Assam to
communicate the order of regularization dated 30.10.2000
insofar as the same would be deemed to be communicated as
soon as it went out of the control of the District
Elementary Education Officer. Reliance has been placed on
State of Punjab vs. Khemi Ram [AIR 1970 SC 214]. Non-
receipt of salary by the appellant is also not relevant in
view of the fact that the State has made budgetary provision
therefor according to Mr. Bachawat and in support of his
aforementioned contention he relied upon M.V. Rajashekaran &
Ors. vs. Vatal Nagaraj & Ors. [JT 2002 (1) SC 237].
ANALYSIS :
The parties have not brought on records the offer of
appointment, if any, issued in favour of the appellant
herein by the Managing Committee of the said School at the
time of his joining. Admittedly, he had been rendering his
services in the School without any remuneration. The terms
and conditions of his job are not known. It is admitted
from the records that he fought election in the year 1998
and during the relevant period he discontinued going to the
School but thereafter again he started going to the School.
It is also not disputed he had not been going to the School
for a long time, as a result whereof the said letters
2.5.2000, 12.6.2000 and 21.8.2000 came to be issued . The
authenticity of the letter of the Head Master dated
30.8.2000 is not in dispute.
The question in the aforementioned situation would be
as regard the effect thereof vis-‘-vis his purported
regularization in terms of letter dated 30.10.2000 w.e.f.
24.4.1998.
LEGAL IMPLICATIONS :
The statutory provisions, as referred to hereinbefore,
ex facie demonstrate that the 1974 Act was enacted for the
purpose of the provincialisation of services of employees
of different categories of the State Board and Regional
Boards for Elementary Education and bringing them under
direct management and control of the State Government.
The pleadings of the parties before the High Court do
not reveal that the School in question was maintained by the
Regional Board. Had it been so, the question of the
appellant being a dropped teacher would not have arisen.
Furthermore, no occasion would have also arisen for the
State of Assam to issue a separate notification dated
19.11.1991 for provincialisation of the said school. We
have also not been shown any provision of law in terms
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whereof such a notification could be issued. Be that as it
may, the fact remains that the appellant herein was not
recognised as a teacher working in the said School. He
continued to render voluntary services without receiving any
remuneration. It may be that such rendition of service by
the appellant or the teachers similarly situated was on the
hope or belief that their services would also be
provincialised by the State one day or the other. But only
by reason thereof, it is difficult to conceive that a
relationship of a master and servant came into being by and
between the management of the School and the appellant.
Even if such a relationship existed, the same was a fragile
one. The services of the appellant in terms of the 1974 Act
or the rules framed thereunder were not protected.. He did
not enjoy any status; his services could be dispensed with
by the Managing Committee of the said School at any time.
Even after provincialisation of the School, keeping in view
the admitted fact that the appellant was not an approved
teacher, it must be held that he was merely rendering some
services and, thus, either in law or on fact, no jural
relationship between the State and the appellant came into
being.
The High Court, however, proceeded on the basis that
such a relationship existed. It opined that the order of
the Division Bench dated 13.11.1998 was mandatory in
character. The fact that the said order attained finality
is not in dispute but a bare perusal of the directions
issued therein would reveal that the Association was asked
to furnish necessary documents and particulars including
names of the concerned teachers so as to enable the State to
consider and complete the process of
regularization/provincialisation of ME Madrassas during the
year 1991-92 in addition to 1123 Assistant Teachers in case
they find genuineness of claims of such Assistant Teachers.
The order dated 8.1.1999 of the Director of Elementary
Education stated that the services of the teachers should
be regularized out of the posts already allotted to the
concerned District Elementary Education Officer. He was
asked to authenticate list of working teachers before
regularization of services of such teachers. Despite that
the name of the appellant appeared at Sl. No.56 thereof,
such a direction was not final. The letter of the District
Elementary Education Officer dated 16.12.1999, although
discloses that he had finalized the list of 97 names, no
order pursuant thereto had been issued. Even the order
dated 30.10.2000 says that such purported
provincialisation/regularization was provisional in nature.
Such regularization was further subject to the outcome of
order dated 25.9.2000 in Writ Appeal No.474 under C.R.
No.2833 of 1997 in Contempt Case (C) No. 420 of 2000 of the
High Court of Gauhati. From the list of dropped teachers
purported to have been regularized from 24.4.1998, it
appears that there existed a factual dispute as to whether
the appellant superseded one Mst. Naseema Begum who had
joined the said School on 1.4.1984 or not. The appellant
contended that he even did not receive the said purported
order of regularization. The High Court having regard to
the provisions contained in Section 114 of the Evidence Act,
was of the opinion that a presumption that he had received
the said order could be drawn but it failed to take into
consideration that such presumption stood rebutted when the
appellant stated on oath that he did not receive such
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letter. In such an event, the onus was on the election
petitioner to show that the same had been delivered or
tendered to him by the postal peon of the concerned post
office. It is not a case where the High Court directed
regularization of services of the appellant. It is
furthermore not a case where the posts were existing on the
date on which the appellant joined the said School. The
additional posts, admittedly, had been created by the State
in the year 1998. Prior to 30.10.2000, thus, there existed
no relationship of master and servant. The offer came to be
made by the State to the appellant only on the issuance of
the said order. The said offer was not only required to be
communicated but also was required to be accepted by the
appellant.
It is true that the school in question stood
provincialised in terms of the notification issued by the
State of Assam but the same by itself would not lead to the
conclusion that the services of the Assistant Teachers
working therein stood automatically provincialised. Had
such consequences of provincialisation of the school been
flown from the notification, it would not have been
necessary for the teachers to approach the High Court. The
very fact that even in terms of the order of the High Court,
the genuineness of claims of the concerned Assistant
Teachers was required to be verified is itself a pointer to
the fact that no order of regularization could be passed
pursuant to or in furtherance of the judgment of the High
Court only.
It is not a case, it will bear repetition to state,
where the State or its authorised officer made an
appointment of an employee either on ad hoc basis or on
daily wages or on contract basis or otherwise. Only in
cases of such irregularities in the matter of appointment,
the employees can be regularized in their services.
In S.V. Narayanappa (supra) whereupon Mr. Bachawat
strongly relied, this Court stated that for the purpose of
application of a Government order, it must be shown that
the local candidate claiming the benefit thereof must
satisfy that he was initially appointed prior to 31.12.
1959 and was in service on 1.1.1960 and continued till
22.9.1961. It was held :
"...This construction finds support from
sub-cl. (iii) which provides that local
service prior to regularization would be
counted for the purposes of leave,
pension and increments though not for
seniority as seniority was to be fixed
from the length of service calculated
from the date of regularization. It is
manifest that unless the local service
was continuous such service could not be
taken into account for the purposes, in
particular of pension and increments.
How would increments, for example, be
granted unless the service prior to such
increments was continuous? The same
consideration would also apply in the
case of pension. It had, therefore, to
be provided as has been done in sub-cl.
(iv) that a break in service would not
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be condoned for a period howsoever
short. Continuity of service is thus a
condition for both sub-cls. 2 and 3..."
Yet again in B.N. Nagarajan (supra), this Court
repelled the argument that regularization gives a colour of
permanence and the appellants therein must be deemed to have
acquired substantive rights stating :
"...The argument however is unacceptable
to us for two reasons. Firstly the
words "regular" or "regularization" do
not connote permanence. They are terms
calculated to condone any procedural
irregularities and are meant to cure
only such defects as are attributable to
the methodology followed in making the
appointments. They cannot be construed
so as to convey an idea of the nature of
tenure of the appointments...."
It is interesting to note that therein this Court
quoted with approval a decision of this Court in R.N.
Nanjundappa vs. T. Thimmaiah [(1972) 2 SCR 799], which is to
the following effect :
"...If the appointment itself is in
infraction of the rules or if it is in
violation of the provisions of the
Constitution illegality cannot be
regularized. Ratification or
regularization is possible of an act
which is within the power of province of
the authority but there has been some
non-compliance with procedure or manner
which does not go to the root of the
appointment. Regularization cannot be
said to be a mode of recruitment. To
accede to such a proposition would be to
introduce a new head of appointment in
defiance of rules or it may have the
effect of setting at naught the rules."
These decisions of this Court do not support the
contention of Mr. Bachawat and in fact run counter thereto.
It is not the case of the parties that there existed even
semblance of any legal right of the appellant and there
existed a relationship of employer and employee between
the State and him. In law the appellant did not enjoy any
status. His services had not been recognized by the State.
The terms and conditions of his services were not governed
by any statute and, thus, the same were not protected. The
relationship of employer and employee, if any, between the
State and the appellant was to come into being (may be with
retrospective effect) only upon receipt of the offer of an
appointment dated 30.10.2000 and acceptance thereof by him.
A contract of service in absence of any statutory provisions
must be preceded by an offer and acceptance. A contract of
service in absence of any statute, a fortiori is also
governed by the provisions of the Indian Contract Act. It
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is, therefore, not correct to contend that the order dated
30.10.2000 was not required to be communicated for making a
valid contract of service. It was absolutely necessary to
communicate the said order to the appellant by the State,
acceptance thereof whether expressly or by necessary
implications by the appellant was also required. The
appellant did not do it nor it is the case of the State or
the statutory authorities that such a relationship had come
into being.
The decision of this Court in Khemi Ram (supra) relied
upon by Mr. Bachawat is not apposite as therein an order of
suspension was in question. This Court in the said decision
itself referred to its decision in State of Punjab vs. Amar
Singh Harika [(AIR 1966 SC 1313], which stated that
communication of an order dismissing an employee from
service is imperative. If communication of an order for
terminating the jural relationship is imperative, a fortiori
it would also be imperative at the threshold.
The High Court proceeded to render its opinion on a
wrong premise. It was not a case where the High Court
having regard to the provisions contained in Article 191 of
the Constitution of India vis-‘-vis- Section 100 of the
Representation of the People Act was required to determine a
question as to whether the appellant being holder of an
office of profit of the Government of the Assam was
wrongfully dismissed from his services. Only holding of an
office of profit under the Government of India or the
Government of any State would render a candidate
disqualified from contesting an election. Only in that
event, the High Court could have been entitled to declare
such election as a void one, but the question involved
herein is not so.
What was necessary to be considered by the High Court
was as to whether any relationship of employer and employee
between the State of Assam and the appellant herein came
into being. The submission of Mr. Bachawat, therefore, to
the effect that the High Court had the requisite
jurisdiction by invoking the doctrine of "implied powers"
to go into the question of termination/dismissal/removal of
the appellant does not arise for consideration in the
instant case.
EFFECT OF RESOLUTION DATED 25.8.2000 :
Furthermore, even the de facto relationship of employer
and employee (as contra-distinguished from de jure
relationship) existed, the same came to an end in view of
the aforementioned resolution of the Managing Committee of
the said School and the communication thereof by the Head
Master of the said School to the appellant in terms of
letter dated 30.8.2000. An administrative order can be
challenged in a proper forum only by the right person for a
right remedy.
In Administrative Law, Eighth Edition by HWR Wade &
C.F. Forsyth, at p. 293, it is stated :
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"An officer de facto is one who has the
reputation of being the officer he
assumes to be, and yet is not a good
officer in point of law."
The question as to whether the relationship of the
appellant with the said School could be validly terminated
by the Managing Committee or not could have been raised only
in an appropriate proceeding where the State was a necessary
party.
An order may be void for one and voidable for the
other. An invalid order necessarily need not be non est;
in a given situation it has to be declared as such. In an
election petition, the High Court was not concerned with the
said issue.
In Administrative Law, Eighth Edition by HWR Wade &
C.F. Forsyth, at page 309, it is stated :
"Effect on third parties :
If an act or order is held to be ultra
vires and void it is natural to assume
that, being a nullity, it is to be
treated as non-existent by all who would
otherwise be concerned. But the
judgment of a court binds only the
parties to it, so that here also there
are problems of relativity. Once again
Lord Diplock has supplied the answer.
Although such a decision is directly
binding only as between the parties to
the proceedings in which it was made,
the application of the doctrine of
precedent has the consequence of
enabling the benefit of it to accrue to
all other persons whose legal rights
have been interfered with in reliance on
the law which the statutory instrument
purported to declare.
In effect, therefore, the court’s
judgment of nullity operates erga omnes,
i.e. for and against everyone concerned.
Patent and latent invalidity
In a well-known passage Lord Radcliffe
said :
An order, even if not made in good
faith, is still an act capable of legal
consequences. It bears no brand of
invalidity upon its forehead. Unless
the necessary proceedings are taken at
law to establish the cause of invalidity
and to get it quashed or otherwise
upset, it will remain as effective for
its ostensible purpose as the most
impeccable of orders.
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This must be equally true even where the
’brand of invalidity’ is plainly visible
: for there also the order can
effectively be resisted in law only by
obtaining the decision of the court.
The necessity of recourse to the court
has been pointed out repeatedly in the
House of Lords and Privy Council,
without distinction between patent and
latent defects. Lord Diplock spoke
still more clearly, saying that
it leads to confusion to use such terms
as ’voidable’ ’voidable ab initio’,
’void’ or ’a nullity’ as descriptive of
the status of subordinate legislation
alleged to be ultra vires for patent or
for latlent defects, before its validity
has been pronounced on by a court of
competent jurisdiction."
The appellant herein had accepted the order of
termination. In that view of the matter, the High Court
could not have proceeded on the basis that the order of
termination was illegal. So long as the order of
provincialisation was not issued, as noticed hereinbefore,
there was no relationship of employer and employee between
the appellant and the State of Assam. The appellant had
been working subject to the discretion of the Managing
Committee. His voluntary services could be refused to be
taken by the Managing Committee of the School. The question
would have been otherwise, had the purported service
conditions of the appellant been governed by a statute or
statutory rules, regularization of a teacher would be
permissible in law, if he remains a teacher on the day on
which such an order is passed. Had he been in service on
30.10.2000, the same could have been regularized with
retrospective effect but he was not in service of the School
and on that date the question of his regularization would
not arise. It is only in that context the High Court was
required to consider as to whether the validity or otherwise
of the order of termination passed by the Managing Committee
could have been the subject matter of a decision by an
Election Tribunal.
The contention of Mr. Bachawat to the effect that
services of an employee can only be terminated in certain
situations could have been accepted if the jural
relationship had come into being and not otherwise.
CONCLUSION :
For the reasons aforementioned, we are of the opinion
that the High Court has committed a manifest error in
holding that the appellant being a holder of an office of
profit disentitled himself from contesting the election in
terms of Article 191 of the Constitution of India.
The appeal, therefore, is allowed. The judgment and
order of the High Court under challenge is set aside.
However, in the facts and circumstances of the case, there
shall be no order as to costs.
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