JUDGMENT : A.K. Ganguly, C.J. - This appeal has been filed challenging the Judgment and Order Dated 22.6.2001 passed by a Learned Judge of the Writ Court in OJC No. 10584 of 1997. 2. In that Writ Petition the present Appellant was the Petitioner and he prayed for quashing the appointment of Opposite Party No. 8 Sachindra Kumar Parida in the post of Trained Graduate Teacher in Mahyama stream as well as for a direction to promote him to the post of Trained Graduate Teacher. 3. The case of the Appellant In the Writ Petition as appreciated by the Learned Judge of the Writ Court is that the Appellant was appointed against a Trained Matric Post in Ramdas Sanskrit Vidyapitha on 15.10.1979 and at that point of time the institution was a Prathama institution. Thereafter on 9.1.1981 the said institution started receiving' aid from State Government and became an aided institution. While working in the said institution, the Appellant applied for and acquired B.Ed qualification in 1989 and in the said year the institution was upgraded to a Madhyama institution. The school was granted provisional recognition as a Madhyama institution from the academic session 1991-92 by the Deputy Secretary of Education Department, Government of Orissa by an Order Dated 7.2.1992. 4. The Learned Judge noted that the case of the Appellant is that in 1992 the Appellant made a representation to the Managing Committee of the institution for consideration of his case for promotion to the post of Trained Graduate Teacher which was available. But the grievance of the Appellant is that without considering his case for promotion to the said post in terms of Rule 8(2)(b) of 1974. Rules the Managing Committee appointed Respondent No. 8 (Opposite Party No. 8 in the Writ Petition) on 27.11.1992 against the said post though admittedly Respondent No. 8 was not qualified and was untrained at the time of such appointment. 5. It has been further noted by the Learned Judge that Madhyama stream of the said institution was notified for receiving grant in aid from the State Government with effect from 1994, but the appointment of Respondent No. 8 against the post of Trained Graduate Teacher was not approved by the Superintendent of Sanskrit Studies in view of the fact theta Respondent No. 8 was unqualified. The Learned Judge of the Writ Court further noted that finding no other alternative the Appellant made a representation on 13.12.1996 for consideration of his case for promotion to the said post. But, the said representation did not produce any result and then the Appellant approached this Court by filing OJC No. 2109 of 1991. This Court disposed of the said Writ Petition by an Order Dated 24.2.1991. The said order is as follows: 24.2.97. Heard Shri Swain for the Petitioner and the Additional Standing Counsel for Opposite Parties 1 to 5. Case of the Petitioner is that since October, 1979 he has been working as an assistant teacher in Ramdas Sanskrit Vidyapitha, Sanamanitia in the district of Kendrapara. He, completed graduation in the year 1986 and obtained B.Ed., degree in the year 1989. According to him, in view of his acquisition of higher qualification, he is eligible to be considered for appointment against a trained graduate post which is lying vacant. But till now the Superintendent of Sanskrit Studies, has not taken up his case for being considered even. Shri Swain states that the Petitioner has made a representation dated 30.12.1996 (Annexure-5) in this regard to the Superintendent of Sanskrit Studies, Orissa but no decision has yet been communicated. Considering the grievance of the Petitioner, we dispose of this matter with a direction to Opposite Party No. 4 to consider the matter and communicate his decision on the representation within three months from the date of receipt of this order. Requisites for communication of the order will Us filed within three days. The case of the Appellant is that pursuant to the aforesaid Order Dated 24.2.1997 passed in OJC No. 2109 of 1997, the Superintendent of Sanskrit Studies considered the Petitioner's representation and by his Order Dated 4.7.1997 rejected the case of the Appellant on the ground that the aforesaid Trained Graduate Post has already been filled up since 1992 by the Managing Committee of the school in question and as such there was no question of consideration of the Appellant's case for promotion. It was also stated that the matter of promotion being within the power of the Managing Committee the Superintendent of Sanskrit Studies has no role to play. 6. By filing the Writ Petition the Appellant prayed for quashing of the said Order Dated 4.7.1997. 7. It was also stated that the matter of promotion being within the power of the Managing Committee the Superintendent of Sanskrit Studies has no role to play. 6. By filing the Writ Petition the Appellant prayed for quashing of the said Order Dated 4.7.1997. 7. Before the Learned Judge of the Writ Court a counter affidavit was filed by Respondent Nos. 7 and 8 (Opposite Party Nos. 7 & 8 in the Writ Petition ). In that counter it was alleged that Prathama institution and Madhyama institution are two separate entities and Respondent No. 7 was appointed as the Head Pandit in Madhyama institution and the process of amalgamation of the two institutions was pending before the authorities. Unless orders are passed by the State Government the amalgamation will not take place. Prathama institution started getting grant in aid in the year 1981 and Madhyama institution got provisional recognition from the academic year 1992. It was also stated in the counter affidavit that Respondent No. 8 was appointed to the Trained Graduate Post on 29.6.1992 and the Appellant who was working in Prathama institution did not apply for his appointment against the said post and only after the institution became aided one and after the appointment of Respondent No. 8 he applied for the same post in the year 1994. If he had applied in the year 1992, he would not have got the salary as applicable to an aided educational institution and therefore, he waited till 1994 when the institution became aided one. It was admitted in the counter affidavit that Respondent No. 8 acquired B.Ed qualification in 1997 and his appointment was approved against the Trained Graduate Post with effect from 5.7.1997, the date on which he acquired the B.Ed qualification. It was also noted by the Learned Judge of the Writ Court that when Respondent No. 8 was appointed in the year 1992, the Petitioner did not challenge the same. On these facts the Learned Judge of the Writ Court came to the following findings: (i) Though it was claimed by the Appellant that both Prathama and Madhyama institutions are one, but in fact same has been disputed by Respondent Nos. 7 and 8 to the effect that there is no amalgamation. On these facts the Learned Judge of the Writ Court came to the following findings: (i) Though it was claimed by the Appellant that both Prathama and Madhyama institutions are one, but in fact same has been disputed by Respondent Nos. 7 and 8 to the effect that there is no amalgamation. (ii) Though it is stated by the Appellant that he made a representation in 1992 to the Managing Committee for consideration of his case for promotion to the post of Trained Graduate Teacher of Madhyama stream, copy of the same was not filed along with the Writ Petition. (iii) The said representation was also not filed in the earlier Writ Petition ( OJC No. 2109/1997). Therefore, the Learned Judge entertained a doubt whether the Petitioner had at all made any representation in 1992. The representation was made to the authorities only in, December, 1996, i.e., four years after appointment of Respondent No. 8 and two years after the institution received the grant in aid. (iv) There is no explanation for the delay and therefore, the Writ Petition suffered from delay and laches. Thereafter the Learned Judge of the Writ Court has considered certain decisions which were cited at the Bar and came to a further finding that Madhyama stream which did not receive grant in aid till 1994 cannot be treated as an aided institution till 1994 and ultimately the Learned Judge came to a finding that the appointment of Respondent No. 8 having been made in 1992 when the institution was not an aided one, Rule 8(2)(b) of the 1974 Rules has no application. As such the Writ Petition was dismissed. 8. Against the said order, the Appellant has filed the present appeal on 20.8.2001. The said appeal came up for hearing before a Division Bench of this Court presided by Hon'ble Chief Justice. On 16.12.2003 the said Division Bench dismissed the appeal by the following order: Heard Learned Counsel for the Appellant. The cause of action for this case arose long back in the year 1994. After perusing the order passed by the Learned Single Judge, we do not find any merit in this appeal. We, therefore, dismiss this appeal. Challenging the said order, the Appellant filed an SLP before the Hon'ble Supreme Court, which was registered as Civil Appeal No. 5523 of 2007. After perusing the order passed by the Learned Single Judge, we do not find any merit in this appeal. We, therefore, dismiss this appeal. Challenging the said order, the Appellant filed an SLP before the Hon'ble Supreme Court, which was registered as Civil Appeal No. 5523 of 2007. The Learned Judges of the Supreme Court set out in their Lordships' order the aforesaid Order Dated 16.12.2003 passed by the Division Bench of this Court and thereafter was pleased to opine that since the Learned Single Judge had decided the matter not only on the ground of limitation but also on merit, the Division Bench of this Court ought to have decided the issue of limitation and merits at the same time. 9. After making the aforesaid observation, the Learned Judges of the Hon'ble Supreme Court were pleased to set aside the order of the Division Bench by which the appeal was dismissed and remitted the matter to this Court with a request to decide the matter both on the question of limitation as well as on merits within a certain time frame. 10.Pursuant to the aforesaid order of the Hon'ble Supreme Court, the matter was placed before this Bench and was heard at length. Learned Counsel for the Appellant submitted that the finding of the Learned Judge of the Writ Court is not sustainable inasmuch as the Appellant in his rejoinder affidavit filed in the writ proceeding has categorically stated that he made a representation dated 27.11.1992 under. Annexure-7 for consideration of his case for promotion to B.Ed trained graduate post which was available In Madhyama Stream. But unfortunately the said representation dated 27.11.1992 which was made part of his rejoinder affidavit was not taken into consideration by the Learned Judge of the Writ Court. Learned Counsel for the Appellant also stated that the resolution of the Managing Committee dated 22.9.2002, which was annexed as Annexure-8 of the rejoinder to the counter affidavit filed by Respondents 7 and 8 was also not taken into consideration by the Learned Judge of the Writ Court. From the said resolution it will be clear that the Managing Committee recorded the protest of the Appellant of not teaching in Madhyama Section as he was not promoted to the Trained Graduate Post in Madhyama Section. From the said resolution it will be clear that the Managing Committee recorded the protest of the Appellant of not teaching in Madhyama Section as he was not promoted to the Trained Graduate Post in Madhyama Section. From a perusal of Annexure-7 to the said rejoinder it appears that the Appellant made a request for promoting him to the post of Trained Graduate Teacher in Madhyama Section vide his representation dated 27.11.1992 and the same was addressed to the Secretary of the managing committee of the school. In paragraph 8 of the said rejoinder, the Appellant has stated as follows: ...It is relevant to mention here that the Head Pandit is completely aware of the representation made by the Petitioner relating to his promotion/appointment which is evident from the resolution dated 22.9.1992. An extract of the said resolution dated 22.9.1992 is filed herewith as Annexure-8. 11. From the last but one paragraph of the said resolution it appears that the school authorities were aware that the Appellant was not willing to take the classes in Madhyama Section of the said institution as he was not promoted to the post of a Trained Graduate Post and he was protesting to teach in Madhyama Section. 12. Relying on the aforesaid documents, Learned Counsel for the Appellant submitted that the Learned Judge of the Writ Court failed to take into account those documents which are already on record in his rejoinder affidavit before the Writ Court. Therefore, without taking into account those materials, the Learned Judge of the Writ Court came to an erroneous finding that the Appellant has not made any representation in 1992 and the Appellant's representation in 1996 is barred by delay inasmuch as promotion of Respondent No. 8 was made in 1992. This Court finds that there is a lot of substance in the aforesaid contentions of the Appellant. 13. In Sri-La-Sri Subramania Desika Gnanasambanda Pandarasannadhi Vs. State of Madras and Another, it has been held that the points raised in the rejoinder affidavit should also be taken into consideration by the Court. However, if new facts are stated in the rejoinder, the Respondents -Opposite Parties may be given opportunity to deal with the same by filing a separate affidavit. 14. Therefore the facts stated in the rejoinder affidavit should not be discarded by the Court while coming to a finding. However, if new facts are stated in the rejoinder, the Respondents -Opposite Parties may be given opportunity to deal with the same by filing a separate affidavit. 14. Therefore the facts stated in the rejoinder affidavit should not be discarded by the Court while coming to a finding. In the instant case the finding of the Learned Judge of the Writ Court is that the Appellant had not made any representation in 1992 asking for his promotion. In coming to that finding the Learned Judge ignored the Appellant's representation dated 27.11.1992 made to the Secretary of the Managing Committee of the School. The school authorities were also aware about the Appellant's protest because he was not promoted to the post of Trained Gradate Teacher even though he was qualified for the said post. That being the position, the Learned Judge of the Writ Court should not have held that the Writ Petition filed by the Appellant in 1997 is barred by delay and laches. Respondent No. 8 was appointed on 27.11.1992 and the Appellant's representation as stated above was made on 27.1 i:id?2 itself which is at Annexure - 7 of the rejoinder to the counter affidavit filed by Respondent Nos. 7 and 8. Therefore, the Appellant' immediately raised the protest. So the finding by the Writ Court that Writ Petition is barred by delay is not at all a correct finding. 15. Now, coming to the question on merit, this Court finds that admittedly at the time when the Respondent No. 8 was appointed, he was not qualified for that appointment. When he was appointed in 1992 to the said post B.Ed, qualification was necessary and the Respondent No. 8 did not have that qualification. He acquired that qualification almost five years later in the month of July, 1997. 16. The other aspectis whether before the appointment of Respondent No. 8 to the said post, any selection procedure was followed. In paragraph-12 of the writ, petition, the Petitioner categorically stated that the Managing Committee could not have appointed an under qualified teacher against a post which requires a Trained Graduate. It was also made clear in the said paragraph that against the Trained Graduate post, in an aided educational institution all appointments must be through a Selection Board. In paragraph-12 of the writ, petition, the Petitioner categorically stated that the Managing Committee could not have appointed an under qualified teacher against a post which requires a Trained Graduate. It was also made clear in the said paragraph that against the Trained Graduate post, in an aided educational institution all appointments must be through a Selection Board. In paragraph 14 of the Writ Petition it was also stated that appointment of the Respondent No. 8 was made in violation of Rule-5 of the 1974 Rules. 17. In this matter, a counter affidavit has been filed by Opposite Party Nos. 2 to 4 who are the State authorities. But the averments made in paragraphs 12 and 14 of the Writ Petition have not been denied. Nothing has been disclosed before this Court that before appointment of Respondent No:8 to the said post any selection procedure was followed. From the appointment letter of the Respondent No. 8, which has been disclosed in the counter affidavit filed by Opposite Party Nos. 7 and 8, does not appear that any selection process was followed. The said appointment letter runs as follows: OFFICE OF THE SECRETARY RAMDAS SANSKRIT VIDYAAPITHA SANAMANATIA Letter No. 156 Dated 25.6.1992 To Sri Sachindra Kumar Parida (B.A.) At/P.O. Palasingha, Dist. Kendrapara. Sir, It is informed that you are selected to be joined as an Asst. Trained Graduate Arts post on dated 29.6.1992 at 10 A.M. in this Institution. This appointment letter is purely temporary. Sd/- Illegible. 25.6.1992 Secretary, Ramdas Sanskrit Bidyapitha, Sanamanatia. 18. The appointment letter shows that Respondent No. 8 was allegedly selected to join as an Asst. Trained Graduate Arts post on 29.6.1992. But admittedly on that date, the Respondent No. 8 was not a Trained Graduate. As noted above, nothing has been disclosed to show that Respondent No. 8 was appointed on the basis of any valid selection process or interview before that appointment. Therefore, the initial appointment of Respondent No. 8 as per the aforesaid appointment letter is invalid in the eye of law. The fact remains that Appellant was available in 1992 as a Trained Graduate teacher, but discarding the availability of the Appellant, Respondent No. 8 was appointed in the said post. When the initial appointment of Respondent No. 8 was illegal, the same cannot, be approved. The fact remains that Appellant was available in 1992 as a Trained Graduate teacher, but discarding the availability of the Appellant, Respondent No. 8 was appointed in the said post. When the initial appointment of Respondent No. 8 was illegal, the same cannot, be approved. The very concept of the approval pre-supposes not the initial appointment is valid in the eye of law. In the instant case, the initial appointment letter which was made in favour of Respondent No. 8, as extracted above does not show that any valid selection process preceded such appointment. Reference in this connection may be made to Section 7-B(1) of Orissa Education Act which applies to private educational institution. 7-B. (1) The State Government or any officer or authority authorized by it may prescribe the qualifications to be possessed by persons for appointment as teachers including the norms relating to the requirement of such teachers in different categories of private educational institution. In 1992 when Respondent No. 8 was appointed, the school had already received provisional recognition. It was not a private school. Even if the school is. a private educational institution in 1992 at the time of appointment of Respondent No. 8.10 the trained graduate post the Managing Committee was under a statutory obligation u/s 7-B of the Orissa Education Act to appoint only qualified teachers to such posts. Admittedly Respondent No. 8 was not qualified in 1992 to be appointed to the trained graduate post. 19. An illegal appointment does not confer any right-on an appointee. This has been very clearly held by the Constitution Bench of the Supreme Court in the case of Secretary, State of Karnataka and Others Vs. Umadevi and Others. At page 1822 of the report (paragraph 34), the Supreme Court laid down: ...this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee.... 20. In R. Vishwanatha Pillai Vs. State of Kerala and Others a three Judge Bench of the Supreme Court held that appointment obtained on the basis of a false caste certificate is void and non est in the eye of law and in such a situation an appointment is considered to be no appointment at all. 20. In R. Vishwanatha Pillai Vs. State of Kerala and Others a three Judge Bench of the Supreme Court held that appointment obtained on the basis of a false caste certificate is void and non est in the eye of law and in such a situation an appointment is considered to be no appointment at all. Here also the alleged appointment of the Respondent No. 8 to the post of trained graduate teacher without any selection procedure, being contrary to Section 7-B of the Orissa Education Act, is non est in the eye of law. By such appointment, Respondent No. 8 has not acquired any right. Such appointment can be challenged at any time and challenge to such appointment cannot be defeated on the ground of delay. 21. Similar view was taken in the case of State of Jharkhand and Others Vs. Manshu Kumbhkar. In that case fake appointment was made without the vacancy being notified to the employment exchange or in the newspaper. No interview was taken but appointment letter was issued. Learned Judges held, by relying on the principles in Umadevi, that such an appointment does not confer any right on appointee. In Manshu Kumbhkar, Learned Judges relied on the decision of the Supreme Court in the case of Ashwani Kumar and Others Vs. State of Bihar and Others. In Ashwani Kumar the Learned Judges held that if the initial appointment is unauthorized, the question of regularizing such an appointment would never survive for consideration. Even if such a regularization is given that would be an exercise in futility. The Learned Judges held that confirming such an appointment would amount to decorating a still-born baby. 22. This Court finds that the Appellant's representation against the approval of appointment of Respondent No. 8 was directed to be considered by an order of this Court in OJC No. 2109 of 1997. The Superintendent of Sanskrit Studies, Orissa considered the representation and passed an Order Dated 4.7.1997, which was challenged in a Writ Petition by the Appellant herein. 23. In that order it was admitted that the post of Trained Graduate Teacher-has been allegedly filled up by the Managing Committee since 29.6.1992 but the fact remains that it was not approved due to lack of qualification which means the lack of qualification of Respondent No. 8. 23. In that order it was admitted that the post of Trained Graduate Teacher-has been allegedly filled up by the Managing Committee since 29.6.1992 but the fact remains that it was not approved due to lack of qualification which means the lack of qualification of Respondent No. 8. In paragraph-6 of the said impugned order, it has been stated that in the matter of appointment the power of the Managing Committee is absolute. The said assumption is not correct in law. Admittedly the Managing Committee has the power to appoint, but that power has to be exercised in accordance with law and in accordance with a fair procedure that meets the general norms of transparency and open competition in a selection process. Unfortunately the process of appointment of Respondent No. 8 is vitiated for two vital reasons. Admittedly the Respondent No. 8 was not qualified for the post and secondly the appointment did not follow any selection process of any kind. It was virtually an extension of patronage by the Managing Committee and the appointment was inherently illegal. Something which is inherently illegal cannot be subsequently legalized. 24. Reference in this connection may be made to the decision of a Division Bench in the case of Gopal Chandra Mishra Vs. State of Orissa and Others. The Division Bench of this Hon'ble Court held that every employee has a right of consideration when any promotion is made or when the question of filling up of a post in the higher scale of pay falls due. Learned Judges of the Division Bench stated that Article 16(1) of the Constitution guarantees such a right. Learned Judges further held that consideration in making such appointment must be made only amongst all eligible candidates on the date the post fell vacant. Learned Judges further held that for any appointment against a Trained Graduate post, the parson must have qualification of B.A. B.Ed. Following the said ratio, this Court holds that on the date the post of Trained Graduate Teacher in Prathama Stream fell vacant, the case of Respondent No. 8 could not be considered because he was not at all eligible to hold the post and on that date the case of the Appellant should have been considered since the Appellant was a Trained Graduate. 25. 25. Similar view has also been taken by the Hon'ble Division Bench of this Court in the case of Nabaghana Das Vs. State of Orissa and Others. In that case the Petitioner obtained B.Ed. degree in 1982 but the Opposite Parties obtained B.Ed. degree in 1983. As such, Learned Judges held that the Petitioner must be held senior to Opp. Party even if the Petitioner has not intimated the Management about his obtaining B.Ed. 26. In the instant case, the Managing Committee is aware that the Appellant had obtained the B.Ed. degree in 1989 which is much before 1992 when the post fell vacant. As such the Managing Committee should have appointed the Appellant to the said post who was qualified for the same. In any event, the Managing Committee should have considered the case of the Appellant while filling up the said post before considering the case of Respondent No. 8 who was not eligible in 1992 for being appointed to the said post. 27. For the reasons aforesaid the Court cannot uphold the Judgment passed by the Learned Judge of the Writ Court where by the Appellant's Writ Petition was dismissed inter alia on merit as also on the ground of delay. Accordingly the said Judgment is set aside. 28. The impugnea Order Dated 4.7.1997 (Annexure-6) whereby the Appellant's representation was discarded on invalid grounds is also set aside. The appointment of Respondent No. 8 is also quashed. 29. The Superintendent of Sanskrit Studies, Orissa is directed to re-consider the matter in the light of the observations made in this Judgment for appointing the Appellant to the Trained Graduate Post, treating the post as vacant from 1992. In the light of the direction made above, the authority should consider the case of the Appellant for appointment to the post of Trained Graduate Teacher in Madhyama stream. Such consideration should be made within a period of three months from the date of service of this order upon the said Superintendent of Sanskrit Studies, Orissa. The appeal is allowed to the extent indicated above. There shall be no order as to costs. B.N. Mahapatra, J. 30. I agree. Final Result : Allowed