Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.30363064 OF 2022
[Arising out of Special Leave Petition (Civil) No.22987
23015 of 2019]
STATE OF ODISHA & ORS. ETC.ETC. ...APPELLANT(S)
VERSUS
SULEKH CHANDRA PRADHAN ETC.
ETC. ...RESPONDENT(S)
JUDGMENT
B.R. GAVAI, J.
1. Leave granted.
2. The appellants – State of Odisha and others have
approached this Court, being aggrieved by the judgment and
th
order dated 20 December, 2018, delivered by the Division
Bench of the High Court of Orissa at Cuttack in a batch of writ
1
petitions being Writ Petition (Civil) No. 6557 of 2018 along with
connected matters, thereby dismissing the said writ petitions
filed by the appellants – State of Odisha and others, challenging
the judgments and orders delivered by the Odisha
Administrative Tribunal (hereinafter referred to as “the
Tribunal”), Bhubaneswar Bench, Bhubaneswar/Cuttack
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Bench, Cuttack dated 18 May, 2017 in O.A. No. 2266 of 2015
th
along with connected matters and 30 January, 2018 in O.A.
No.3420 (C) of 2015 along with connected matters.
th
3. Vide order dated 18 May, 2017, delivered in O.A.
No.2266 of 2015 along with connected matters, the Tribunal,
Bhubaneswar Bench had allowed the Original Applications filed
by the applicants therein (respondents herein), thereby setting
aside the termination of the applicants (respondents herein)
and directing/allowing them to continue as Government
servant as third teacher/Assistant Teacher in Middle English
Schools (hereinafter referred to as “M.E. Schools”) with effect
2
st th
from 1 April, 2011, as regular teacher. Vide order dated 30
January, 2018, the Tribunal, Cuttack Bench followed its earlier
th
order dated 18 May, 2017 and granted the same relief to 137
Hindi Teachers.
The parties are referred herein as they are referred to in
4.
the Original Applications.
5. The facts giving rise to the present appeals are as under:
6. All the applicants joined the Aided M.E. School as Hindi
Teachers, in or around 198889. The applicantSulekh
Chandra Pradhan (respondent No.1 herein) in the lead case
before the Tribunal, Bhubaneswar Bench, i.e., O.A. No.2266 of
st rd
2015, was appointed on 21 June, 1988 and joined on 23
June, 1988, as Hindi Teacher at Nrusingha Jena M.E. School,
Naginipur in District Kendrapada. The appointment of the said
applicant was made by the Managing Committee of the said
School.
3
th
7. On 12 May, 1992, the Government of Orissa, Education
Department issued a resolution, thereby taking over all M.E.
st
Schools situated in the State of Odisha with effect from 1
April, 1991. Though the Government took over all the teachers
including nonteaching staff of the M.E. School as Government
servants, Hindi Teachers were not taken over as Government
servants and therefore, the services of the applicants were
nd
automatically terminated. Aggrieved thereby, on 2 July, 1993,
Sulekh Chandra Pradhan (respondent No.1 herein), approached
the High Court of Orissa at Cuttack by way of Writ Petition
being OJC No. 3042 of 1993, thereby raising a grievance that
the benefits extended to Hindi Teachers in terms of the letter of
the Deputy Director, Sanskrit, Hindi and Special Education
st
(hereinafter referred to as “the Deputy Director”) dated 1 May,
1992 were not being extended to him. It was asserted that
though he possessed the requisite qualification, he was not
being absorbed against the third teacher post in the M.E.
School where he was earlier working. The Division Bench of
4
nd
the High Court, vide judgment and order dated 2 July, 1993,
disposed of the said writ petition by directing the Director of
Elementary Education, Orissa (hereinafter referred to as “the
Director”), to look into the grievances of the petitioner therein
(i.e. Sulekh Chandra Pradhan) within four months from the
date of receipt of the order.
th
8. On 7 January, 1994, the Government of Orissa issued a
st
clarification that the letter dated 1 May, 1992 of the Deputy
Director addressed to all Inspectors of Schools/all District
Inspector of Schools, was applicable only to the teachers, who
were appointed against sanctioned posts and were drawing
their salaries from the Government fund under Plan and non
st
plan scheme. By the said communication dated 1 May, 1992,
the Deputy Director had clarified that Hindi being a non
examinable subject in M.E. Schools, there was no need to allow
the existing Hindi Teachers in M.E. Schools to continue further.
5
9. It appears that in pursuance to the orders of the High
th
Court, the Government of Orissa addressed a letter dated 29
September, 1995 to the Director, thereby informing that the
Government had decided to adjust such Hindi Teachers
appointed by the Managing Committee within the yardstick in
UP (ME) Schools as Assistant Teachers in the taken over M.E.
Schools either in vacant posts of Assistant Teacher or in the
post of Hindi Teacher to be created in such schools or in other
schools in relaxation of the qualifications, prescribed for the
th
third teachers. Vide the said communication dated 29
September, 1995, the Director was asked to ascertain the
names of the Hindi Teachers along with their qualification from
the concerned District Inspector of Schools. In response to the
same, the Director immediately informed the Government that
since the appointments were made beyond the yardstick and
against the provisions of Odisha Education (Recruitment and
Conditions of Service of Teachers and Members of the Staff of
Aided Educational Institutions) Rules, 1974 (hereinafter
6
referred to as “the said Rules”), the reference to District
Inspector of Schools to furnish the names and qualifications of
such Hindi Teachers would lead to every possibility for
manipulation of the office records. It was also pointed out that
such an exercise may enable to sponsor names of Hindi
Teachers for approval by making backdated appointments. It
was therefore recommended that cases of only such Teachers
th
who had filed the writ application between 12 May, 1992 and
th
12 May, 1993, i.e., within a year after taking over of the
schools should be considered as one time measure.
st
Vide communication dated 21 May, 1996, the
10.
Government of Orissa informed the Director that the
Government has decided to adjust 137 Hindi Teachers in M.E.
th
Schools. It appears that vide communication dated 17 June,
1996, the Government of Orissa also informed the Director that
while examining the original papers of Hindi Teachers, their
Acquaintance Roll should be verified by the District Inspector of
7
st
Schools. It further appears that vide communication dated 21
August, 1996, the Government of Orissa informed the Director
that no action be taken in pursuance to its earlier
st th
letters/communications dated 21 May, 1996 and 17 June,
1996, until further orders of the State Government.
st
11. Ignoring the letter/communication dated 21 August,
1996, the respective District Inspector of Schools issued
th
appointment order dated 27 August, 1996 in favour of the
applicant – respondent No. 1 herein. Noticing this, the
Directorate of Elementary Education, Orissa, Bhubaneswar
st
addressed a communication/letter dated 1 October, 1996 to
the District Inspector of Schools informing that all
appointments made by them should be kept in abeyance. It
st
appears that on the basis of the said communication dated 1
October, 1996, the services of the applicants/Hindi Teachers
th th
were discontinued with effect from 4 November, 1996. On 5
September, 1998, the Government of Orissa addressed a
8
communication to the Director, stating therein that the
th
Government has withdrawn its G.O. No.31360 SME dated 29
September, 1995.
12. It is the contention of the State Government that the Joint
Secretary to the Government of Orissa, Department of School
th
and Mass Education addressed a communication dated 7
July, 2009 to the Director, stating therein that the Government
had decided to adjust the services of 137 Hindi Teachers in
M.E. Schools as Assistant Teachers against the vacant posts.
nd
Vide another communication dated 2 February, 2011, the
office of the Director informed the District Inspectors of Schools
that a committee constituted and headed by them should
scrutinize the original papers of Hindi Teachers and
acquaintance roll of the incumbents should be verified with
reference to the cash book of the School from the date of their
joining before the adjustment of such teachers. In pursuance
nd
to the aforesaid communication dated 2 February, 2011, the
9
st
applicants/respondents were appointed on 31 March, 2011 as
Assistant Teachers.
13. It appears that certain teachers had approached the
Tribunal by filing various applications, thereby challenging the
st th
order dated 1 October, 1996 and 4 November, 1996, vide
which the appointment of teachers were kept in abeyance. One
of such applications being O.A. No.4029(2) of 1996 came to be
th
rejected by the Tribunal by order dated 12 April, 2012. It
appears that one another application being O.A. No.3800 (C) of
2012 was filed by one Nimai Charan Dash, seeking a direction
st
to quash the order dated 21 August, 2012 whereby the
representation of the applicant therein to adjust him as a
regular teacher came to be rejected. The said application came
to be rejected by the Tribunal, Cuttack Bench vide order dated
rd
23 September, 2013. While rejecting the said O.A. the
Tribunal, Cuttack Bench, directed a detailed enquiry to be
conducted through the Vigilance Department.
10
th
14. In the enquiry, it was found that the letter dated 7 July,
2009 of the Government of Orissa addressed to the Director to
adjust 137 Hindi Teachers as Assistant Teachers against
vacant posts was issued by suppressing its earlier letter dated
th th
5 September, 1998, whereby the letter dated 29 September,
1995 to adjust the Hindi Teachers was withdrawn. The
Government of Orissa, therefore, vide communication dated
th
26 February, 2014, directed the Director to remove 137 Hindi
Teachers, who were illegally adjusted by the concerned District
Inspector of Schools. Accordingly, the services of the
applicants/Teachers came to be terminated with effect from
th
15 March, 2014.
15. The applicants, being aggrieved by their termination
approached the High Court by way of Writ Petitions being Writ
Petition (Civil) No.6747 of 2014 and other writ petitions. The
th
High Court vide order dated 9 May, 2014, delivered in Writ
Petition (Civil) No.6747 of 2014, found that the termination was
11
done without following the principles of natural justice and as
such, set aside the same. However, liberty was granted to the
State to proceed against the petitioner therein (i.e., Ramesh
Kumar Mohanty) by complying with the Rules governing the
employment of the petitioner therein and the requirement of the
rule of natural justice. The High Court further directed that the
services/appointments of such of the teachers would be
continued till the decisions were taken by the authorities after
remand.
16. In pursuance thereof, the applicants/teachers were
th
reinstated on 15 December, 2014. In view of the liberty
granted by the High Court, show cause notices were issued to
nd
the applicants on 22 July, 2015. Some of the applicants filed
their replies and appeared for personal hearing. Many of them
chose not to do so. The services of the applicants came to be
nd
terminated with effect from 22 August, 2015. Being aggrieved,
a batch of Original Applications came to be filed before the
12
Tribunal. The same came to be allowed by the Tribunal,
th
Bhubaneswar Bench, vide order dated 18 May, 2017, thereby
nd
quashing the show cause notices dated 22 July, 2015 and
holding that the applicants were entitled to continue as regular
Government servants as third teacher/Assistant Teacher in
st
M.E. School with effect from 1 April, 2011.
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17. Vide another order dated 30 January, 2018, the
Tribunal, Cuttack Bench, followed the abovementioned order
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dated 18 May, 2017, passed by the Tribunal, Bhubaneswar
Bench and granted similar relief to 137 Hindi Teacher.
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18. Being aggrieved by the judgments and orders dated 18
th
May, 2017 and 30 January, 2018 of the Tribunal, the State of
Odisha filed writ petitions before the High Court. The same
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were dismissed by the impugned judgment and order dated 20
December, 2018. Being aggrieved thereby, the present appeals
th
by way of special leave are filed. Vide order dated 20
13
September, 2019, this Court issued notice and granted stay to
the impugned judgment and order.
19. We have heard Shri Chander Uday Singh, learned Senior
Counsel appearing on behalf of the appellants, Shri Gaurav
Agrawal, learned counsel appearing on behalf of the
respondents/teachers and Shri R. Balasubramanian, learned
Senior Counsel appearing on behalf of the
Interveners/applicants.
Shri Chander Uday Singh, learned Senior Counsel
20.
appearing on behalf of the appellants would submit that the
High Court has grossly erred in holding that the State had not
th
challenged the judgment and order dated 18 May, 2017,
passed by the Tribunal, Bhubaneswar Bench, in O.A. No.2266
of 2015 and other connected cases. He submitted that, as a
matter of fact, Writ Petition (Civil) No.6557 of 2018 was filed
th
challenging the judgment and order dated 18 May, 2017,
passed by the Tribunal in O.A. No.2266 of 2015 and other
14
connected cases. He submitted that the High Court has erred
in holding that the teachers had discharged service under the
State Government for more than two decades. He further
submitted that the Division Bench of High Court has erred in
holding that the State had meted out discriminatory treatment
amongst the teachers. He therefore submits that the
judgments and orders passed by the Tribunal as well as the
High Court are not sustainable in law and liable to be set aside.
21. Shri Singh further submitted that the appointments made
are contrary to Rules 5 and 6 of the said Rules and as such, the
appointments made, de hors the said Rules, cannot be
sustained. He further submitted that the Tribunal, while
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delivering the judgments and orders dated 18 May, 2017 and
th
30 January, 2018, has failed to take into consideration the
th rd
earlier orders of the Tribunal dated 25 June, 2013 and 23
September, 2013, vide which the Tribunal had rejected similar
claims made by the Hindi Teachers. He further submits that,
15
as a matter of fact, Sri Antaryami Bal, whose O.A. (No. 2270 of
2015) has been allowed by the Tribunal vide judgment and
th
order dated 18 May, 2017, was the applicant in O.A. No.4029
(2) of 1996, which was rejected by the Tribunal, Cuttack Bench
th
by a wellreasoned judgment and order dated 12 April, 2012.
He therefore submits that the judgments and orders of the
Tribunal, which were impugned before the High Court, would
also not be sustainable on the ground of judicial propriety.
22. On facts, Shri Singh submitted that the
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applicants/teachers have worked only between 27 August,
th st
1996 and 4 November,1996; between 31 March, 2011 and
th th th
15 March, 2014; and lastly from 15 December, 2014 till 25
August, 2015. The third period was on account of the orders
passed by the High Court. He therefore submits that, at the
most, the applicants/teachers have worked approximately for a
period of four years.
16
23. Shri Gaurav Agrawal, learned counsel, would submit that
though the M.E. Schools had a sanction of two posts, i.e., one
post of Headmaster and one post of Assistant Teacher; the
posts of Hindi Teacher were filled in by the Management on
nongrant basis. He submits that the said Rules would be
applicable only to the appointments made on grantinaid basis
and as such, to the post of Headmaster and to the one post of
Assistant Teacher. Since the applicants/teachers, who were
appointed on a third post, which was on nongrant basis, they
would not be governed by the said Rules.
24. Shri Agrawal further submits that in pursuance to the
order passed by the Division Bench of the High Court in O.J.C.
nd
No. 3042 of 1993 dated 2 July, 1993, the State had framed a
policy for absorption of these teachers as a onetime measure.
He submits that prior to their absorption, a detailed scrutiny
and enquiry was required to be done. He submits that if
applicants/teachers were absorbed in pursuance to the policy,
17
which was framed in pursuance to the directions of the High
Court, the termination would be bad in law. He therefore
submits that no interference would be warranted with the
judgments and orders passed by the Tribunal and the High
Court.
25. Shri R. Balasubramanian, learned Senior Counsel
appearing on behalf of the interveners/applicants would submit
that similar matters, i.e., O.A. No. 3420(C) of 2015 and other
connected matters have been allowed by the Tribunal vide order
th
dated 30 January, 2018. He submits that the order of the
Tribunal was confirmed/affirmed by the High Court vide order
th
dated 11 April, 2018 passed in Writ Petition (Civil) No.21661
of 2017. He submits that the Special Leave Petition (Civil) D.
No.40252 of 2018 challenging the same has been rejected by
th
this Court vide order dated 19 July, 2019. He therefore
submits that the issue has reached a finality and therefore, it
will not be permissible for the State to do away with the
18
services of the Assistant Teachers. He further submits that the
applicants/interveners in the present appeals, who have
succeeded before the Tribunal, the High Court, and this Court
have not been reinstated.
For appreciating the rival submissions, it will be necessary
26.
to refer to Rules 5 and 6 of the said Rules, which read thus:
“5. Procedure of application to the Board and
appointment of Staff in aided institutions –
(1)The Secretary of the Managing
Committee or the Governing Body, as
the case may be, of an Aided
Educational Institution shall, on or
before the thirtyfirst day of August
every year apply to the Selection Board
with copy of each application to the
concerned Inspector of Schools in
respect of Schools [Director of Higher
Education] in respect of Colleges in
such manner as the Selection Board
may prescribe for selection of a
candidate for appointment in the
vacancy or vacancies in teaching post,
and the concerned Inspector of Schools
and [Director of Higher Education] shall
process the applications so received
and transmit the same to the Selection
Board by thirtieth day of September
19
every year with certificate of
genuineness of the vacancy or
vacancies along with a statement of the
vacancy position in the Educational
Institutions within his jurisdiction.
(2)The Selection Board shall, on receipt of
applications and certificates referred to
in Subrule () 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.
(3)Appointment shall be made by the
Managing Committee or the Governing
Body as the case may be, of the
candidates allotted under Subrule (2).
(4)[*]
(5)In the extent of nonacceptance of offer
of appointment by any candidate,
report to that effect shall be sent to the
[Director concerned] by the Secretary of
the Managing Committee or the
Governing Body, as the case may be,
and upon receipt of such intimation,
the name of the candidate shall be
struck off the list. The consequential
vacancies shall then be filled up by
candidates allotted by the Director
concerned from an additional list
obtained from the Selection Board from
20
the list of persons in the waiting list
with it.
(6)If instance of default in the
appointment of candidates allotted by
the Director, come to his notice, he
shall be competent to withhold the
individual teacher’s cost of the grantin
aid to be paid to the institution
concerned and to take steps to
supersede the Managing Committee or
the Governing Body, as the case may
be, under Section 11 of the Act.
(7)Where a vacancy was not foreseen by
thirtyfirst day of August the Secretary
of the Managing Committee or the
Government Body, as the case may be,
shall apply to the Selection Board
through the concerned Inspector or the
Director, as the case may be, for
allotment of candidates whereupon, the
Selection Board shall recommend
candidates out of the waiting list
maintained by it, through the
concerned Director.
(8)It shall not be necessary to apply to the
Selection Board for appointments to
vacancies [for a period of six months or
till the date of receipt of the list referred
to in Subrule (2) from the Selection
Board whichever is earlier] and all such
appointments may be made by the
Managing Committee or the
Government Body, as the case may be,
21
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.
[Provided that where it appears to the
Inspector or the Director, as the case
may be, that the appointment to a
vacancy or vacancies in accordance
with the provisions of this rule is being
circumvented by making appointments
in pursuance to this Subrule, the
Director suo motu or on the receipt of a
report from the Inspector as the case
may be, shall be competent to proceed
against the Managing Committee or the
Governing Body under Section 11 of the
Act.]
(9)Notwithstanding anything contained in
Subrule (8), it shall be competent for
the Managing Committee or the
Governing Bode, as the case may be to
extend in terms of appointment beyond
six months till the recommendation of
the Selection Board is received with the
prior approval of Government.
6. Procedure of selection of candidates –
(1) The Selection Board shall, at such
intervals as it deems proper call for
applications for various posts in respect
of which vacancies are likely to arise in
the course of the next one year in such
manner as may be determined in the
regulation of the Selection Board.
22
(2) The Selection Board shall conduct
examinations including a viva voce
examination of any candidate or all
candidates with a view to determine
their merit and suitability in the matter
appointed in its regulations.”
27. Perusal of the subrule (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 thirtyfirst 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
subrule (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
23
concerned Directors, who shall thereupon allot candidates to
the concerned institutions strictly in order of merit as per
vacancy.
28. Perusal of subrule (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 teacher’s cost of the grantinaid 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 subrule (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 subrule (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.
24
29. Rule 6 of the said Rules prescribes the procedure for
selection of candidates.
It could thus be clearly seen that a detailed selection
30.
procedure is prescribed for making appointment of vacancies
arising in Aided Educational Institution.
th
31. Perusal of the approval order dated 12 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.
It is not in dispute that the appointment of all the
32.
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
25
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
1
(Mrs) and others , J & K Public Service Commission and
2
,
others vs. Dr. Narinder Mohan and others Official
3
Liquidator vs. Dayanand and others , and Union of India
4
.
and another vs. Raghuwar Pal Singh
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
grantinaid 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
th
as Aided M.E. Schools vide G.O. dated 12 September, 1980. It
1 (1991) 3 SCC 246
2 (1994) 2 SCC 630
3 (2008) 10 SCC 1
4 (2018) 15 SCC 463
26
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
th th
judgment and order dated 18 May, 2017 and 30 January,
2018, has failed to take into consideration the earlier orders
th rd
dated 25 June, 2013 and 23 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
th
2015 by its order dated 18 May, 2017 filed by Sri Antaryami
Bal, whose earlier application being O.A. No. 4029(2) of 1996
27
with regard to the same relief was rejected by the Tribunal vide
th
its earlier order dated 12 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
nd
the order passed by this Court on 2 December, 1996 in Civil
5
Appeal No. 15712 of 1996 .
35. The impugned order passed by the High Court depicts
total nonapplication 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
th
observed that the order dated 18 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
5 (1997) 2 SCC 635
28
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
6
and another , wherein this Court has held as under:
“ A petition for leave to appeal to this
27.
Court may be dismissed by a nonspeaking
order or by a speaking order. Whatever be
the phraseology employed in the order of
dismissal, if it is a nonspeaking order,
i.e., it does not assign reasons for
dismissing the special leave petition, it
would neither attract the doctrine of
6 (2000) 6 SCC 359
29
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
. If the order of
which has been declared
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
30
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.
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39. In the result, the appeals are allowed. The impugned
judgment and order of the Division Bench of the High Court
th
dated 20 December, 2018 passed in a batch of writ petitions
th th
and the judgments and orders dated 18 May, 2017 and 30
January, 2018 of the Tribunal passed in a batch of Original
Applications are quashed and set aside. The Original
Applications filed by the respondents/applicants before the
Tribunal are dismissed.
All pending applications, including applications for
40.
intervention, shall stand disposed of. There shall be no order
as to costs.
…..….......................J.
[L. NAGESWARA RAO]
…….........................J.
[B.R. GAVAI]
NEW DELHI;
APRIL 20, 2022
32