# STATE OF ORISSA & ANR v. MAMATA MOHANTY

- **Citation:** [2011] 2 S.C.R. 704
- **Court:** Supreme Court of India
- **Decided:** 2011-02-09
- **Case number:** CIVIL APPEAL NO. 1272 OF 2011
- **Bench:** P. Sathasivam, Dr. B.S. Chauhan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-orissa-anr-v-mamata-mohanty-27459
- **Pages:** 52

## Headnote

SERVICE LAW:
C
OR/SSA
EDUCATION
(RECRUITMENT
AND
CONDITIONS OF SERVICE OF TEACHERS AND
MEMBERS OF THE STAFF OF AIDED EDUCATIONAL
INSTITUTIONS) RULES, 1974 :
Rules 2(1), 4 to 7 - Lecturers receiving grant-in-aid -
D Claiming UGC pay scale w.e.f 1.1.1986, as per Notification
dated 6.10.1989 -
Writ petitions allowed by High Court
placing reliance on earlier decisions - Held : Questions
raised in instant appeals had never been considered by
courts earlier - A teacher who had been appointed without
E possessing the requisite qualification at initial stage, cannot
get the benefit of grant-in-aid scheme unless he/she acquires
the additional qualification and, therefore, question of grant
of UGC pay scale would not arise unless such teacher
acquires the additional qualification for benefit of grant-in-aid
F scheme - However, terminating the services of those who had
been appointed illegally and/or withdrawing the benefit of
grant-in-aid scheme would not be desirable as a long period
has elapsed - But, UGC pay scale cannot be granted prior
to the date of acquisition of higher qualification - Delay/
G /aches -Constitution of India, 1950 - Articles 14, and 16 and
21 - Stare decisis - Rule of per incurium.
H
CONSTITUTION OF IND/A, 1950 :
Article 226 - Writ petition - Limitation for filing of - Held
704
STATE OF ORISSA & ANR. v. MAMATA MOHANTY
705
'
: Doctrine of limitation being based on public policy is A
applicable to writ petitions which may be dismissed at initial
stage on ground of delay and /aches - Relief granted in
similar case cannot furnish a proper explanation for delay/
/aches - Limitation Act, 1963 - s.3
B
Article 226 ..:. Writ petition - Held : Relief not founded on
pleadings should not be granted - Relief - Pleadings.
Article 14 -Held : Does not envisage negative equality
· -The principle also applies to judicial pronouncements ..:.
Once the court comes to the conclusion that a wrong order · C
has been passed, it becomes the solemn duty of the court to
rectify the mistake.
Articles 14 and 16 -Held: Even if names of candidates
are requisitioned from Employment Exchange, in addition o
thereto, it is mandatory on the part of employer to invite
applications from open market by advertising the vacancies
in newspapers having wide circulation or by announcement
in Radio and Television -Service Law -Appointments.
Article 14 and 16 - Relaxation or condoning of deficiency ·· E
- Held : Granting relaxation subsequently amounts to change
of criteria after issuance of advertisement and is violative of
fundamental rights enshrined under Articles 14 and 16 of
similarly situated persons who did not apply for want of
eligibility - An appointment which is bad in inception does not
F
get sanctified at a later stage -Concept of adverse possession
of lien on post or holding over are not applicable in service
jurisprudence - A person not possessing the requisite
qualification cannot hold the post nor can he approach the
court as he does not have a right which can be enforced G
through court - Service Law - Relaxation in eligibility.
Article 21-A -Education -Held : It is not permissible for
State while controlling education to impinge the standard of
education -Paucity of funds cannot be a ground for State not
H
706
SUPREME COURT REPORTS
(2011) 2 S.C.R.
A to provide quality education to its future citizens -Therefore,
State provides grant-in-aid to private schools -However, while
granting recognition and affiliation, it is mandatory to adhere
to the conditions imposed which include the minimum
eligibility for appointment of teaching staff -The selection of
8
the most suitable persons is essential in order to maintain
excellence and the standard of teaching - Service Law -
Eligibility of teaching staff.
c
CIRCULARS/GOVERNMENT ORDERS/
NOT/FICA TIONS:
Circulars/Letters - Filing of in courts - HELD: Some of
the Circulars/letters! orders filed in court may not be in
conformity with law and may be violative of the mandatory
provisions of the Constitut

## Text

_Characters 0–39,972 of 92,620. This is a partial read: ask again with offset=39972 for what follows._

A
B
[2011] 2 S.C.R. 704
STATE OF ORISSA & ANR.
v.
MAMATA MOHANTY
(CIVIL APPEAL NO. 1272 OF 2011 ETC.)
FEBRUARY 9, 2011
[P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]
SERVICE LAW:
C
OR/SSA
EDUCATION
(RECRUITMENT
AND
CONDITIONS OF SERVICE OF TEACHERS AND
MEMBERS OF THE STAFF OF AIDED EDUCATIONAL
INSTITUTIONS) RULES, 1974 :
Rules 2(1), 4 to 7 - Lecturers receiving grant-in-aid -
D Claiming UGC pay scale w.e.f 1.1.1986, as per Notification
dated 6.10.1989 -
Writ petitions allowed by High Court
placing reliance on earlier decisions - Held : Questions
raised in instant appeals had never been considered by
courts earlier - A teacher who had been appointed without
E possessing the requisite qualification at initial stage, cannot
get the benefit of grant-in-aid scheme unless he/she acquires
the additional qualification and, therefore, question of grant
of UGC pay scale would not arise unless such teacher
acquires the additional qualification for benefit of grant-in-aid
F scheme - However, terminating the services of those who had
been appointed illegally and/or withdrawing the benefit of
grant-in-aid scheme would not be desirable as a long period
has elapsed - But, UGC pay scale cannot be granted prior
to the date of acquisition of higher qualification - Delay/
G /aches -Constitution of India, 1950 - Articles 14, and 16 and
21 - Stare decisis - Rule of per incurium.
H
CONSTITUTION OF IND/A, 1950 :
Article 226 - Writ petition - Limitation for filing of - Held
704
STATE OF ORISSA & ANR. v. MAMATA MOHANTY
705
'
: Doctrine of limitation being based on public policy is A
applicable to writ petitions which may be dismissed at initial
stage on ground of delay and /aches - Relief granted in
similar case cannot furnish a proper explanation for delay/
/aches - Limitation Act, 1963 - s.3
B
Article 226 ..:. Writ petition - Held : Relief not founded on
pleadings should not be granted - Relief - Pleadings.
Article 14 -Held : Does not envisage negative equality
· -The principle also applies to judicial pronouncements ..:.
Once the court comes to the conclusion that a wrong order · C
has been passed, it becomes the solemn duty of the court to
rectify the mistake.
Articles 14 and 16 -Held: Even if names of candidates
are requisitioned from Employment Exchange, in addition o
thereto, it is mandatory on the part of employer to invite
applications from open market by advertising the vacancies
in newspapers having wide circulation or by announcement
in Radio and Television -Service Law -Appointments.
Article 14 and 16 - Relaxation or condoning of deficiency ·· E
- Held : Granting relaxation subsequently amounts to change
of criteria after issuance of advertisement and is violative of
fundamental rights enshrined under Articles 14 and 16 of
similarly situated persons who did not apply for want of
eligibility - An appointment which is bad in inception does not
F
get sanctified at a later stage -Concept of adverse possession
of lien on post or holding over are not applicable in service
jurisprudence - A person not possessing the requisite
qualification cannot hold the post nor can he approach the
court as he does not have a right which can be enforced G
through court - Service Law - Relaxation in eligibility.
Article 21-A -Education -Held : It is not permissible for
State while controlling education to impinge the standard of
education -Paucity of funds cannot be a ground for State not
H
706
SUPREME COURT REPORTS
(2011) 2 S.C.R.
A to provide quality education to its future citizens -Therefore,
State provides grant-in-aid to private schools -However, while
granting recognition and affiliation, it is mandatory to adhere
to the conditions imposed which include the minimum
eligibility for appointment of teaching staff -The selection of
8
the most suitable persons is essential in order to maintain
excellence and the standard of teaching - Service Law -
Eligibility of teaching staff.
c
CIRCULARS/GOVERNMENT ORDERS/
NOT/FICA TIONS:
Circulars/Letters - Filing of in courts - HELD: Some of
the Circulars/letters! orders filed in court may not be in
conformity with law and may be violative of the mandatory
provisions of the Constitution - Such circulars/letters cannot
o be given effect to.
STARE DEC/SIS :
Rule of per incurium -Held : Courts have developed this
principle in relaxation of the rule of stare decisis -Thus, the
E "quotable in lawn is avoided and ignored if it is rendered in
ignoratium of a statute or other binding authority - The
judgments passed without noticing the judgments in Damodar
Nayak and Bhanu Prasad Panda are held to be not of binding
nature.
F
WORDS AND PHRASES :
Expression 'per incurium' - Connotation of.
Respondent No. 1 in CA No. 1272/2011 was
G appointed as a Lecturer on 9.7.1979 and her appointment
was approved by the Director of Higher Education. By
order dated 18.12.1985 she was granted the benefit of
receiving 1/3rd grant-in-aid Scheme. The Government of
Orissa, by Notification dated 6.10.1989, revised the pay
H scale enforceable with effect from 1.1.1986 as per the
STATE OF ORISSA & ANR. v. MAMATA MOHANTY 707
'
'
I•
recommendations of UGC. The Notification was
A
applicable only in cases where the post was granted the
benefit of grant-in-aid Scheme by 1.4.1989 and the person
manning that post must have a good academic record
i.e. 54% or its equivalent grade in a Master's Course. The
respondent filed a writ petition before the High Court on
B
11.11.2005 seeking a direction from the State Government
to pay her the revised pay scale as per Notification dated
6.10.1989 with effect from 1.1.1986 as had been granted
by the High Court in OJC No. 3705 of 1987 and other
similar cases. The writ petition was contested bythe c
appellants on the ground that since the respondent had
secured only 40% marks in her Master's Course, she was
not eligible for appointment and her appoint~nt being
not in consonance with law, remained illegal. The High
Court, however, placing reliance on its earlier judgments, 0
allowed the writ petition .. Aggrieved, the State
Government filed an appeal. Similarly, the other appeals
were also filed.
It was contended for the respondents that the High
Court had been dealing with the subject matter for a long
E
"
'
time and once SLPs against judgments of the High Court
had been dismissed by the Supreme Court, in limine,
judicial discipline and decorum would demand the
Supreme Court to follow the same order and, therefore,
the judgment impugned in the instant appeals did not
F
warrant any interference. On the other hand, it was
contended for the appellants that factual and legal issues
involved in the instant appeals had never been
considered either by the High Court or by the Supreme
Court.
G
The questions for consideration before the Court
were : {i) whether the orders of the High Court could be
given effect to or be considered by the courts to grant a
relief to the persons whose appointments had been
illegal for want of eligibility and for not following the
H
708
SUPREME COURT REPORTS
[20111 2 s.c.R.
A procedure prescribed by law, i.e. advertisement, etc. and
(ii) whether the delay and laches could be condoned all
together giving the respondents the impetus of the earlier
judgments in cases of persons who had been diligent
enough to approach the court within a reasonable period.
B
Disposing of the appeals, the Court
HELD: 1. The questions raised in the instant appeals
had never been considered by any of the courts,
however, they involve substantial questions of law of
C public importance and, therefore, require proper
adjudication. [para 11) [729-F]
2. STATUTORY PROVISIONS - RELEVANT PARTS
2. In view of the definition of 'University' in Rule 2(i)
D of the Orissa Education (Recruitment and Conditions of
Service of Teachers and Members of the Staff of Aided
Educational Institutions) Rules, 1974, "University" means
all the four universities of Orissa, as enumerated in the
Rules, namely, Utkal University, Behrampur University,
E Sambalpur University and Sri Jagannath Sanskrit Vishwa
Vidyalaya. The instant cases relate to Utkal University. It
is the Selection Board constituted by the Government
under Rule 4 of the Rules 1974, which could call the
candidates for interview/tests and make the selection
F according to merit [Rule 5). The Selection Board shall
make the teachers available to individual colleges as per
their need. Thus, the Committee of Management does not
have a right to make the appointment of a teacher of its
own. More so, under the Rules 1979, the teachers so
G appointed are liable to be transferred throughout the State
of Orissa even to a College which may be affiliated to any
of the four Universities. [para 12) [731-D; 730-A; 731-D-F]
3. EDUCATION :
H
3.1. Education is the systematic instruction,
STATE OF ORISSA & ANR. v. MAMATA MOHANTY 709
schooling or training given to the young persons in
A
preparation for the work of life. It also connotes the whole
course of scholastic instruction which a person has
received. Education connotes the process of training and
developing the knowledge, skill, mind and character of·
students by formal' schooling. The excellence of B ·
Instruction provided by an educational institution mainly
depends directly on the excellence of the teaching staff.
Therefore, unless they themselves possess a good
academic record/minimum qualifications prescribed as an
eligibility, it is beyond imagination of anyone that c
standard of education can be maintained/enhanced. [para
14] [733-H; 734-A-C]
The Sole Trustee Loka Shikshana · Trust v. The
Commissioner of Income Tax, Mysore, AIR 1976 SC 10;
Frank Anthony Public School Employees' Association v.
D
Union of India & Ors., AIR 1987 SC 311; Osmania University
Teachers' Association v. State of Andhra Pradesh & Anr., AIR
1987 SC 2034; and Director (Studies), Dr. Ambedkar Institute
of Hotel Management, Nutrition & Catering Technology,
' Chandigarh & Ors. v. Vaibhav Singh Chauhan, 2008 (15 )
E
SCR 224 = (2009) 1 SCC 59); Meera Massey (Dr) v. S.R.
Mehrotra (Dr) & Ors., AIR 1998 SC 1153 and Chandigarh
Administration & Ors. v. Rajni Vali & Ors., AIR 2000 SC 634
-relied on
Report of the University Education Commission, i.e.,
Radhakrishnan Commission; Report of the Committee on
University Administration 1964(1967) - referred to
F
3.2. Paucity of funds cannot be a ground for the State
for not providing quality education to its future citizens.
G
It is for this reason that in order to maintain the standard
of education, the State Government provides grant-in-aid
to private schools to ensure the smooth running of the
institution so that the standard of teaching may not suffer
for want of funds. Article 21A of the Constitution of India
H
;
710
SUPREME COURT REPORTS
[2011] 2 S.C.R.
A has been added by amending the Constitution with a view
_ 1o facilitate the children to get proper and good quality
of education. The selection of the most suitable persons
is essential in order to maintain excellence and the
standard of teaching. It is not permissible for the State
B that while controlling the education it may impinge the
standard of education. [para 17] [736-C-G]
3.3. This Court in Damodar Nayak has categorically
held that a person cannot get the benefit of grant-in-aid
unless he completes the deficiency of educational
C qualification. Further, this Court in Dr. Bhanu Prasad
Panda upheld the termination of services of the appellant
therein for not possessing 55% marks in Master Course.
[para 46{xii)] [752-D-E]
D
State of Orissa & Anr. v. Damodar Nayak ·& Anr., AIR
1997 SC 2071 and Dr. Bhanu Prasad Panda v. Chancellor,
Sambalpur University & Ors., (2001) 8 SCC 532 -relied on
3.4. In case, a person cannot get the benefit of grantE in-aid scheme unless he completes the deficiency of
educational qualification, question of grant of UGC pay .
scale does not arise. [para 46{xiv)] [752-H; 753-A]
F
4.APPOINTMENT/EMPLOYMENT WITHOUT
ADVERTISEMENT:
4.1. Keeping in view the requirements of Article 16 of
the Constitution, there must be a notice published in the
appropriate manner calling for applications and all those
who apply in response thereto should be considered
G fairly. Even if the names of candidates are requisitioned
from Employment Exchange, in addition thereto it is
mandatory on the part of the employer to invite
applications from all eligible candidates from the open
market by advertising the vacancies in newspapers
H having wide circulation or by announcement in Radio
STATE OF ORISSA & ANR. v. MAMATA MOHANTY
711
and Television. An appointment made by merely calling
A
the names from the Employment Exchange or putting a
note on the Notice Board etc. violates the mandates of
Articles 14 and 16 of the Constitution as it deprives the
candidates who are eligible for the post, from being
considered. A person employed in violation of these
B
provisions is not entitled to any relief including salary.
[para 18-19) [737-A-C; F-H; 738-A]
Delhi Development Horticulture Employees' Union v.
Delhi Administration, Delhi & Ors., AIR 1992 SC 789; State
C
of Haryana & Ors. v. Piara Singh & Ors., AIR 1992 SC 2130;
Excise Superintendent Ma/kapatnam, Krishna District, A.P.
v. K.B.N. Visweshwara Rao & Ors., 1996 ( 5) Suppl. SCR
73 = (1996) 6 SCC 216; Arun Tewari & Ors. V. Zita Mansavi
Shikshak Sangh & Ors., AIR 1998 SC 331; Binod Kumar
Gupta & Ors. v. Ram Ashray Mahoto & Ors., AIR 2005 SC
D
2103; National Fertilizers Ltd. & Ors. v. Somvir Singh, AIR
2006 SC 2319;. Telecom District Manager & Ors. v. Keshab
Deb, 2008 (7 ) SCR 835 = (2008) 8 SCC 402; State of Bihar
v. Upendra Narayan Singh & Ors., 2009 (4 ) SCR 866 =
(2009) 5 SCC 65; and State of Madhya Pradesh & Anr. v.
E
. Mohd. Ibrahim, 2009 (8 ) SCR 229 = (2009) 15 SCC 214) -
referred to.
4.2. In the instant matters, the procedure prescribed
under the Rules, 1974 has not been followed in all the
cases while making appointments of the respondents/
teachers at initial stage. Some of the persons ha~
admittedly been appointed merely by putting some note
F
on the Notice Board of the College. Some of these
teachers did not face the interview test before the G
· Selection Board. Their appointments were approved by
the statutory authority i.e. Director of Higher Education
after a long long time; in some cases even after 10-12
years of their initial appointment. [para 46 (i) and (iii)] [750G-H; 751-B-C]
H
712
SUPREME COURT REPORTS
[2011] 2 S.C.R.
A 5. ORDER BAD IN INCEPTION :
5.1. It is a settled legal proposition that if an order is
bad in Its inception, it does not get sanctified at a later
stage. A subsequent action/development cannot validate
8 an action which was not lawful at its inception, for the
reason that the illegalify strikes at the root of the order. If
an order at the initial stage is bad in law, then all further
proceedings consequent thereto will be non est and have
to be necessarily set aside. A right in law exists only and
C only when it has a lawful origin. [para 20] [738-C-D]
.
Upen Chandra Gogoi v. State of Assam & Ors., AIR 1998
SC 1289; Mangal Prasad Tamoli (Dead) by L.Rs. v.
NaNadeshwar Mishra (Dead) by L.Rs. & Ors. , AIR 2005 SC
1964; and Ritesh Tiwari & Anr. v. State of U.P. & Ors., AIR
D 2010 SC 3823- relied on
5.2. The concept of adverse possession of lien on
post or holding over is not applicable in service
jurisprudence. Therefore, continuation of a person
E wrongly appointed on post does not create any right In
his favour. [para 20 and 46(xx)] [753-G-H; 738-F]
Dr. M.S. Patil v. Gulbarga University & Ors., AIR 2010
SC 3783 - relied on
F 6. ELIGIBILITY LACKING:
6.1. A person who did not possess the requisite
percentage of marks as per the statutory requirement or
is lacking the eligibility cannot hold the post, nor can he
approach the court for the reason that he does not have
G a right which can be enforced through court. [para 21-22]
[738-H; 739-F-G]
Dr. Prit Singh v. S.K. Manga/ & Ors., 1992 ( 1 ) Suppl.
SCR 337 = 1993 Supp (1) SCC 714; Pramod Kumar v. U.P.
H Secondary Education SeNices Commission & Ors., AIR 2008
STATE OF ORISSA & ANR. v. MAMATA MOHANTY 713
SC 1817 -relied on
6.2. A candidate becomes eligible to apply for a post
only if he fulfils the required minimum benchmark fixed
A
by the rules/advertisement. At the relevant time of
appointment of the respondents/teachers there has been . 8
- a requirement of possessing good second class i.e. 54%
marks in Master's Course and none of the said
respondents had secured the said percentage. Thus,
none of the respondents could even submit the
application. [para 46 (ii) and (iv)] [751 ·A·C·D]
7. RELAXATION :
c
7.1. In absence of an enabling provision for grant of
relaxation, no relaxation can be made. Even if such a
power is provided under the Statute, it cannot be o
exercised arbitrarily. Such a power cannot be exercised
treating it to be an implied, incidental or necessary power
for execution of the statutory provisions. Even an implied
power is to be exercised with care and caution with
reasonable means to remove the obstructions or to
E .
overcome the resistance in enforcing- the statutory
provisions or executing its command. Incidental and
ancillary powers cannot be used in utter disregard of the
object of the Statute. Such power can be exercised only
to make the legislation effective so that the ultimate power
F
does not become illusory, which otherwise would be
contrary to the intent of the legislature. [para 30-31) [743·
F-H; 744-A]
Dr. J.P. Kulshrestha & Ors. v. Chancellor, Allahabad
University & Ors., AIR 1980 SC 2141;Rekha Chaturvedi v.
G
University of Rajasthan & Ors., 1993 (1) SCR 186 =1993
Supp (3) SCC 168; P.K. Ramachandra Iyer & Ors. v. Union
of India & Ors., AIR 1984 SC 541; Secretary, A.P. Public
Service Commission v. 8. Swapna & Ors., 2005 (2) SCR 991
= (2005) 4 SCC 154; Kendriya Vidya/aya Sangathan & Ors.
H
714
SUPREME COURT REPORTS
[2011] 2 S.C.R.
A
v. Saja/ Kumar Roy & Ors., 2006 (7). Suppl. SCR 607 =
(2006) 8 SCC 671; Food Corporation of India & Ors. v. Bhanu
Lodh & Ors., AIR 2005 SC 2775; Dr. Bhanu Prasad Panda
v. Chancellor, Sambalpur University & Ors. 2001 (3) Suppl.
SCR 62 = (2001) 8 SCC 532; : Union of India v. Dharam
B Pa/ & Ors., 2009 (2) SCR 193 = (2009) 4 SCC 170); Matajog
Dobey v. H. S. Bhari, AIR 1956 SC 44; and State of Kamataka
v. Vishwabharathi House Building Co-operative Society &
Ors., 2003 (1) SCR 397 = (2003) 2 SCC 412; K. Manjusree
v. State of Andhra Pradesh & Anr., AIR 2008 SC 1470; and
C Ramesh Kumar v. High Courl of Delhi & Anr., AIR 2010 SC
3714- relied on
7.2. Granting relaxation subsequently amounts to
change of criteria after issuance of advertisement, which
is impermissible in law. More so, it is violative of
D fundamental rights, enshrined under Articles 14 and 16
of the Constitution, of the similarly situated persons, who
did not apply considering themselves to be ineligible for
want of required marks. [para 46 (viii)] [751-G-H; 752-A]
E
7.3. The Circulars/Letters issued by the Government
from time to time fixed the minimum 54% marks in
. Master's Course as eligibility. In the instant matters, the
relaxation has been granted only by Utkal University;
condonation of deficiency had not been exercised by any
F University other than Utkal University. The so-called
relaxation was accorded by the Utkal University by
passing a routine order applicable to large number of
colleges, that too after a lapse of long period i.e. about a
decade. [para 12 and 46 (v)] [733-D; 751-D-E]
G
7.4. Fixation of eligibility falls within the exclusive
domain of the executive and once it has been fixed by
the State authorities under the Rules 1974, the question
of according relaxation by Utkal University could not
arise and, therefore, the order of condonation etc. is
H nullity. [para 46 (vi)] [751-E·F]
STATE OF ORISSA & ANR. v. MAMATA MOHANTY
715
7.5. The power to grant relaxation in eligibility had not A
been conferred upon any authority, either the University
or the State. In absence thereof, such power could not
have been exercised. [para 46 (xi)] [752-C]
8. DELAY/LACHES :
8.1. Although Limitation Act does not apply in writ
jurisdiction, however, the doctrine of limitation being
based on public policy, the principles enshrined therein
B
are applicable and writ petitions are dismissed at initial
stage on the ground of delay and laches. In alike case,
C
getting a particular pay scale may give rise to a recurring
cause of action. In such an eventuality, the petition may
be dismissed on the ground of delay and laches and the
court may refuse to grant relief for the initial period in case
of an unexplained and inordinate delay. M.ost of the 0
petitions had been filed before the High Court after 1020 years for grant of UGC pay scales w.e.f. 1.1.1986 and
to pay the arrears etc. The High Court in all the cases,
granted relief with effect from 1.1.1986 or even with effect
from 1.6.1984, though even the Notification dated
E
6.10.1989 makes it applicable w.e.f. 1.1.1986. The cases
had been entertained and relief had been granted by the
High Court without considering the issue of delay and
laches merely placing reliance upon earlier judgments
obtained by diligent persons approaching the courts
F
within a reasonable time. [paras 9, 32, 33 and 46(xv)] [744G-H; 745-A; 729-B-C; 753-B]
Lachhmi Sewak Sahu v. Ram Rup Sahu & Ors., AIR
1944 Privy Council 24; and Kamlesh Babu & Ors. v. Lajpat
Rai Sharma & Ors, 2008 (6 ) SCR 653 = (2008) 12 SCC 577
G
-relied on.
8.2. Relief granted by the Court in a similar case,
cannot furnish a proper explanation for delay and laches.
A litigant cannot claim impetus from the judgment in
H
716
SUPREME COURT REPORTS
[2011] 2 S.C.R.
A cases where some diligent person had approached the
Court within a reasonable time. [para 34) [745-B-C]
Mis Rup Diamonds & Ors., v. Union of India & Ors., AIR
1989 SC 674; State of Karnataka & Ors. v. S.M. Kotrayya &
B Ors., 1996 (5) Suppl. SCR 426 = (1996) 6 SCC 267; and
Jagdish Lal & Ors. v. State of Haryana & Ors., AIR 1997 SC
2366 - relied on.
9. RELIEF NOT CLAIMED - CANNOT BE GRANTED :
c
9.1. A decision of a case cannot be based on
grounds outside the pleadings of the parties. Pleadings
and particulars are required to enable the court to decide
the rights of the parties in the trial. Thus, the pleadings
are more to help the court in narrowing the controversy
0 involved and to inform the parties concerned about the
question in issue, so that the parties may adduce
appropriate evidence on the said issue. It is a settled
legal proposition that "as a rule relief not founded on the
pleadings should not be granted." [para 35) [745-E-F]
E
Sri Mahant Govind Rao v. Sita Ram Kesho, (1898) 25
Ind. App. 195; Mis. Trojan & Co. v. RM. N.N. Nagappa
Chettiar, AIR 1953 SC 235; lshwar Dutt v. Land Acquisition
Collector & Anr., AIR 2005 SC 3165; and State of
Maharashtra v. Hindustan Construction Company Ltd., 2010
F (4 ) SCR 46 = (2010) 4 SCC 518 ~relied on
9.2. The High Court granted relief in some cases
which had not even been asked for, as in some cases the
UGC pay scale had been granted with effect from
G 1.6.1984, i.e., the date prior to 1.1.1986 though the same
relief could not have been granted and was not
permissible in law in view of the law laid down by this
Court in Damodar Nayak *. Thus, it clearly makes out a
case of deciding a matter without any application of mind.
H [para 46 (xvii-xviii)] [753-D-F]
STATE OF ORISSA & ANR. v. MAMATA MOHANTY 717
State of Orissa & Anr. v. Damodar Nayak & Anr., AIR A
1997 SC 2071 and Dr. Bhanu Prasad Panda v. Chancellor,
Sambalpur University & Ors., (2001) 8 SCC 532 -relied on
10. ARTICLE 14 OF THE CONSTITUTION OF INDIA.
10.1. It is a settled legal proposition that Article 14 is
8
not meant to perpetuate illegality and it does not envisage
negative equality. Thus, even if some other similarly
situated persons have been granted some benefit
inadvertently or by mistake, such order does not confer
any legal right on the petitioner to get the same relief. This
C
principle also applies to judicial pronouncements. Once
the court comes to the conclusion that a wrong order has
been passed, it becomes the solemn duty of the court to
rectify the mistake rather than perpetuate the same. [para
36] [7 46-A-D]
D
Chandigarh Administration & Anr v. Jagjit Singh & Anr.,
AIR 1995 SC 705; Yogesh Kumar & Ors. v. Government of
NCT Delhi & Ors., AIR 2003 SC 1241; Mis Anand Buttons
Ltd. etc. v. State of Haryana & Ors., AIR 2005 SC 565; K.K.
E
Bhalla v. State of M.P. & Ors., AIR 2006 SC 898; Maharaj
Krishan Bhatt & Anr. v. State of Jammu & Kashmir & Ors.,
2008 (11 ) SCR 670 = (2008) 9 SCC 24; Upendra Narayan
Singh (supra); and Union of India & Anr. v. Kartick Chandra
Monda/ & Anr., AIR 2010 SC 3455); Hotel Ba/aji & Ors. v.
State of A.P. & Ors., AIR 1993 SC 1048; Sanjiv Datta, Dy.
Secy., Ministry of Information & Broadcasting, 1995 ( 3 )
SCR 450 = (1995) 3 SCC 619; Nirmal Jeet Kaur v. State
F
of M.P. & Anr., 2004 (3 ) Suppl. SCR 1006 = (2004) 7
SCC 558; and Mayuram Subramanian Srinivasan v. CBI, AIR
2006 SC 2449 - relied on. .
G
10.2. The grievance of the respondents that not
upholding the orders passed by the High Court in their
favour would amount to a hostile discrimination, is not
worth acceptance for the reason that Article 14 of the
H
718
SUPREME COURT REPORTS
[2011] 2 S.C.R.
A Constitution envisages only positive equality. [para 46
(xix)] [753-G]
11 ARBITRARINESS :
11.1. The rule of law inhibits arbitrary action and also
B makes it liable to be invalidated. Every action of the State
or its instrumentalities should not only be fair, legitimate
and above-board but should be without any affection or
aversion. Procedural fairness is an implied mandatory
requirement to protect against arbitrary action where
C Statute confers wide power coupled with wide discretion
on an authority. If the procedure adopted by an authority
offends the fundamental fairness or established ethos or
shocks the conscience, the order stands vitiated. The
decision making process remains bad. [para 38) [747-ED F]
Haji T. M. Hassan Rawther v. Kera/a Financial
Corporation, AIR 1988 SC 157; Dr. Rash Lal Yadav v. State
of Bihar & Ors., 1994 ( 1 ) Suppl. SCR 231 = (1994) 5 SCC
E 267; and Tata Cellular v. Union of India, 1994 ( 2 ) Suppl.
SCR 122 =(1994) 6 SCC 651; State of Andhra Pradesh &
Anr. v. Na/la Raja Reddy & Ors., AIR 1967 SC 1458; S.G.
Jaisinghani v. Union of India & Ors., AIR 1967 SC 1427;
Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR
F 1952 SC 16 - relied on.
11.2. The object and purpose of according
recognition and affiliation to educational institutions can
not be ignored. Therefore, while granting the recognition
and affiliation even for non-governmental and non-aided
G private colleges, it is mandatory to adhere to the
conditions imposed which also include the minimum
eligibility for appointment of teaching staff. In the instant
case, it appears to be a clear cut case of arbitrariness
which cannot be approved. [para 37] [747-A-D]
H
STATE OF OR1ss.A."& ANR. v. MAMATA MOHANTY 719
11.3. The submission on behalf of the respondents
A
that Government orders/circulars/letters have been
complied with, therefore, no interference is called for, is
preposterous for the simple reason that such orders/
circulars/letters being violative of statutory provisions
and constitutional mandate are just to be ignored in terms
B
of the judgment of this Court in Ram Ganesh Tripathi *.
[para 46 (xxi)] [754-A-B]
*Ram Ganesh Tripathi & Ors. v. State of U.P. & Ors., AIR
1997 SC 1446 - relied on.
c
11.3. It is a matter of common experience that a large
number of orders/letters/circulars, issued by the State/
statutory authorities, are filed in court for placing reliance
and acting upon it. However, some of them are definitely
found to be not in conformity with law. There may be
D
certain such orders/circulars which are violative of the
mandatory provisions of the Constitution. [para 41) [749F]
11.4. The authority passed illegal orders in
E
contravention of the constitutional provisions arbitrarily
without any explanation whatsoever polluting the entire
education system of the State, ignoring the purpose of
grant-in-aid scheme itself that it has been so provided' to
maintain the standard of education. [para 46 (xvi)] [753C]
F
11.5. The whole exercise done by the State
authorities suffers from the vice of arbitrariness and, thus,
is violative of Article 14 of the Constitution. Therefore, it
cannot be given effect to. [para 42] [749-B-C]
G
12. PER INCURIAM - DOCTRINE :
12.1. "lncuria" literally means "carelessness". In
practice per incuriam is taken to mean per ignoratium. ihe
H
720
SUPREME COURT REPORTS
(2011] 2 S.C.R.
A Courts have developed' this principle in relaxation of the
rule of stare decisis. Thus the "quotable in law", is
avoided and ignored if it is rendered in ignoratium of a
Statute or other binding authority. [para 43] [749-D]
8
Mamleshwar Prasad & Anr. v. Kanahaiya Lal (Dead) by
Lrs., AIR 1975 SC 907; State of Orissa & Anr. v. Damodar
Nayak & Anr., AIR 1997 SC 2071 - relied on.
12.2. The two judgments in Damodar Nayak and
Bhanu Prasad Panda could not be brought to the notice
C of either the High Court or this Court while dealing with
the issue. Special leave petition in the case of Kalidas
Mahapatra & Ors.* has been dealt with without
considering the requirement of law merely making the
reference to Circular dated 6.11.1990, which was not the
D first document ever issued in respect of eligibility. Thus,
all the judgments and orders passed by the High Court
as well as by this Court cited and relied upon by the
respondents are held to be not of a binding nature (Per
in curiam). [para 46(xiii)] [752-F-G]
E
State of Orissa & Anr. v. Damodar Nayak & Anr., AIR
1997 SC 2071 and Dr. Bhanu Prasad Panda v. Chancellor,
Sambalpur University & Ors., (2001) 8 SCC 532 -relied on
State of Orissa & Anr. v. Kalidas Mahapatra & Ors.,
F [SLP(C) Nos. 14206-14209 of 2001 decided by Supreme
Court on 11.3.2001- held per incurium.
12.3. Thus, it stands crystal clear that a teacher who
had been appointed without possessing the requisite
G qualification at initial stage cannot get the benefit of granti n-aid scheme unless he acquires the additional
qualification and, therefore, question of grant of UGC pay
scale would not arise in any circumstance unless such
teacher acquires the additional qualification making him
H eligible for the benefit of grant-in-aid scheme. The
_ STATE OF ORISSA & ANR. v. MAMATA MOHANTY
721
~-
cumulative effect, therefore, comes to that such teacher
A
will not be entitled to claim the UGC pay scale unless he
acquires the higher qualification i.e. M.Phil/Ph.D. [para 47]
[754-C-D].
12.4. In the facts and circumstances of the case,
8
terminating the services of those who had been
appointed illegally and/or withdrawing the benefits of
grant-in-aid scheme from those who had not completed
the deficiency in eligibility/educational qualification or
from those who had been granted from the date prior to C
completing the deficiency, may not be desirable as a long
period has elapsed. So far as the grant of UGC pay scale
is concerned, it cannot be granted prior fo the date Of
acquisition of higher qualification. In view of the above,
the impugned judgment/order cannot be sustained in the.
· eyes of law. [para 48] [754-E-F]
D
12.5. The full particulars of the respondent-teachers
are not before this Court as in some cases there had
been claims and counter claims of possessing the
requisite marks i.e. 54% in Master's Course. Therefore, it E
is directed : (i) In case of dispute regarding possessing
of 54% marks, the authorities, Secretary of Higher
· Education/Director of Higher Education may examine the
' factual position and decide the case of individual
teachers in accordance with law laid down in this case;
F
- and (ii) If a person did not possess the requisite
qualification on the date of appointm~mt and was not
entitled for grant-in-aid scheme, unless fie completes the
d~ficiency, his case would be considered from the date
of completing the deficiency for grant of UGC pay scale.
G
However, in no case, the UGC pay scale can be granted
prior to the date of according the benefit of the grant-inaid scheme, i.e. by acquiring the degree of M.Phil/Ph.D.
[para 49] [754-G-H; 755-A-C]
H
722
SUPREME COURT REPORTS
[2011] 2 S.C.R
I
"A
Case Law Reference:
AIR 1976 SC 10
relied on
para 14
AIR 1987 SC 311
relied on
para 14
B
AIR 1987 SC 2034
relied on
para 14
2008 (15 ) SCR 224
relied on
para 14
AIR 1998 SC 1153
relied on
para 14
AIR 2000 SC 634
relied on
para 15
c
AIR 1992 SC 789
referred to
para 18
AIR 1992 SC 2130
referred to
para 18
1996 ( 5 ) Suppl. SCR 73
referred to
para 18
D
AIR 1998 SC 331
referred to
para 18
AIR 2005 SC 2103
referred to
para 18
AIR 2006 SC 2319
referred to
para 18
E
2008 (7 ) SCR 835
referred to
para 18
2009 (4 ) SCR 866
referred to
para 18
.
2009 (8 ) SCR 229
referred to
para 18
F
AIR 1998 SC 1289
relied on
para 20
AIR 2005 SC 1964
relied on
para 20
AIR 2010 SC 3823
relied on
para 20
AIR 2010 SC 3783
relied on
para 20
G
1992 ( 1 ) Suppl. SCR 337
relied on
para 21
AIR 2008 SC 1817 337
relied on
para 22
AIR 1980 SC 2141
relied on
para 23
H
1993 ( 1 ) SCR 186
relied on
para 24
STATE OF RAJASTHAN & ORS. v. DAYA LAL &
723
ORS.
AIR 1984 SC 541
relied on
para 25
A
2005 (2 ) SCR 991
relied on
para 26
2006 (7 ) Suppl. SCR 607
relied on
para 27
AIR 2005 SC 2775
relied on
para 28
B
2001 ( 3 ) Suppl. SCR 62
relied on
para 29
2009 (2 ) SCR 193
relied on
para 30
AIR 1956 SC 44
relied on
para 31
2003 ( 1 ) SCR 397
relied on
c·
para 31
AIR 2008 SC 1470
relied on
para 31
AIR 2010 SC 3714
relied on
para 31
AIR 1944 Privy Council 24
relied on
para 32
D
2008 (6 ) SCR 653
relied on
para 32
AIR 1989 SC 674
relied on
para 34
-
1996 ( 5 ) Suppl. SCR 426 relied on
para 34
E
AIR 1997 SC 2366
relied on
para 34
(1898) 25 Ind. App. 195
relied on
para 35
AIR 1953 SC 235
relied on
para 35
F
AIR 2005 SC 3165
relied on
para 35
2010 (4 ) SCR 46
relied on
para 35
AIR 1995 SC 705
relied on
para 36
AIR 2003 SC 1241
relied on
para 36
G
AIR 2005 SC 565
· relied on
para 36
AIR 2006 SC 898
relied on
para 36
H
724
SUPREME COURT REPORTS
[2011] 2 S.C.R.
A
2008 (11 ) SCR 670
relied on
para 36
AIR 2010 SC 3455
relied on
para 36
AIR 1993 SC 1048
relied on
para 36
.B
1995 ( 3) SCR 450
relied on
para 36
2004 (3 ) Suppl. SCR 1006
relied on
para 36
AIR 2006 SC 2449
relied on
para 36
AIR 1988 SC 157
relied on
para 38
c
1994 ( 1 ) Suppl. SCR 231
relied on
para 38
1994 ( 2 ) Suppl. SCR 122 relied on
para 38
AIR 1967 SC 1458
relied on
para 39
D
AIR 1967 SC 1427
relied on
para 40
AIR 1952 SC 16
relied on
para 40
AIR 1997 SC 1446
relied on
para 41
E
AIR 1975 SC 907
relied on
para 43
AIR 1997 SC 2071
relied on
para 44
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1272 of 2011.
F
From the Judgment & Order dated 22.3.2006 of the High
Court of Orissa at Cuttack in W.P. (C) No. 14157 of 2005.
WITH
G
C.A. 1246-1271, 1273-1274, 1277-1281, 1283, 12851287, 1289-1293, 1295-1300, 1302-1313. 1315-1321 & 1284
of 2011.
P.N. Misra, A.K. Sanghi, Shambhu Prasad Singh,
H Shibashish Misra, Kirti Renu Mishra, R.S. Jena, Ghanshyam
STATE OF ORISSA & ANR. v. MAMATA MOHANTY
725
Yadav, Suresh Chandra Tripathy, Satya Mitra Garg, Kirti Renu . A
Mishra, Rishi Jain, Radha Shyam Jena, Rutwik Kumar, A.
Raghunath, Kedar Nath Tripathy, Bharat Sangal, K.N. Tripathi,
Shovan Mishra, Sounnak S. Das, S.K. Malik, Hara Prasad
Sahu, Kedar Nath Tripathy, Saraswati Malik, Ashok Panigrahi,
Shiv Kanungo, Satya Mitra Garg, Nilkanta Nayak, A:P. Mayee,
B
Prasanna Kumar Nanda, V.S. Raju, T.N. Rao, Soumyajit Pani,
Sunil K. Jain, P.V. Dinesh, P. Rajesh, Sindhu, Nikhil Goel,
_ Marsook Bafaki, H.K. Puri, Vikay Verma, Kirti Mishra, Rishi
Jain, Sanjay Parikh, Anish R. Shah, Soumya Ray, AN. Singh,
V.K. Monga, Swetaketu Mishra, Ajay Choudhary, Sanjay Das, c
Rltin Rai, Bharat Sangal, R.R. Kumar, Vernika Tomar, Alka
Singh, Abhishth Kumar, Sibo Sankar Mishra, Raj Kumar
Parashar, V.K. Sidharthan, Promila, Sanjay Kr. Das, Rono
Mohanty, R.P. Goyal, AP. Mohanty, P.K. Pattanaik, Rutwik
Panda, Rajib Sankar Roy, Abhijit Sankar Roy,· S.K. Patri,
D
Pranab Kumar Mullick, Ajay Choudhary, Sanjay Das, Prashant
Jha, Manjula Gupta, Prem Sunder Jha, P.K. Mullick, S.K. Patri,
M.N. Mishra, Suresh Chandra, Sanjay V. Kharde, Asha G. Nair,
Manoranjan Mishra, S.C. Triparthy, Shibashish Mishra, Anitha
Shenoy for the appearing parties.
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J.1. All the aforesaid appeals have
been filed against the judgments and orders of the High Co1,1:_rt
E
of Orissa at Cuttack which have been passed placing reliance · F
on its earlier judgments in similar cases. The facts and legal
issues involved herein are the same. Thus, they are heard
together and are being disposed of by the common judgment
and order. However, for convenience, Civil Appeal No. 1272 ·
of 2011 is taken to be the leading case and some reference
G
to facts would be taken from other appeals as and when
necessary in the context .of legal issues involved herein.
2. The appeal has been preferred against the judgment
and order dated 22.3.2006 of the. High Court of Orlssa at
Cuttack in Writ Petition (Civil) No. 14157 of 2005.
H
726
SUPREME COURT REPORTS
[2011] 2 S.C.R.
A FACTS:
3. (A) The respondent was appointed as a Lecturer in Niali
College, Nia Ii, on 9. 7.1979 and her appointment as such was
appr()Ved by the Director of Higher Education, Orissa, a
B ·statutory authority - the appellant No. 2, vide order dated
18.12.1985, and she was granted the benefit of receiving 1/
3rd grant-in-aid.
(B) In order to provide better facilities to teachers and
enhance the standard of higher education, the Government of
C Orissa, came out with a Notification dated 6.10.1989 with a
revised pay scale enforceable with effect from 1.1.1986 as per
the recommendations of UGC. However, the said Notification
was applicable only in such cases where the post has been
granted the benefit of grant-in-aid Scheme by 1.4.1989 and
D person manning that post had a good academic record i.e. 54
per cent or its equivalent grade in a Masters' Course.
(C) Respondent did not make any representation before
any authority to get the benefit of the said Notification dated
E 6.10.1989, rather approached the High Court on 11.11.2005
by filing Writ Petition (Civil) No. 14157 of 2005 seeking a
direction to the State Government to pay the pre-revised pay
gcale with effect from 1.1.1986 placing reliance on the various
orders passed by the High Court earlier in cases of other
F persons e.g. in case OJC No. 3705 of 1987.
(D) The present appellants contested the said writ petition
pointing out that the respondent had secured only 40 per cent
marks in her Master's course. She was by no means, eligible
for appointment. Her appointment, being not in consonance with
G law, remained illegal.
·
H
(E) The High Court placing reliance on its earlier
judgments, allowed the said writ petition giving the benefit of
the U.G.C. pay scale to her w.e.f. 1.6.1984. Hence, this appeal.
1
STATE OF ORISSA & ANR. v. MAMATA MOHANTY 727
[DR. B.S. CHAUHAN, J.]
4. The submissions made in all these appeals, particularly
A
by the respondents are that the High Court had been d/ealing
with the subject matter for a long time and judgments of the High
Court have been upheld by this court. Once the SLPs against
the judgments of the High Court which had been relied upon
by the High Court while deciding these cases, have been
B
dismissed in limine, judicial discipline and decorum demand
that this Court should follow the same order. Thus, the
judgments and orders impugned herein did not warrant any
interference.
5. On the other hand, it has been subm!tted by learned
C
counsel for the appellants that factual and legal issues involved
in these cases have never been considered either by the High
Court or by this Court in proper perspective. For example, in
Civil Appeal No. 1274 of 2011, State of Orissa v. Mrs.