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2020 DIGILAW 342 (GAU)

Dekter Gadi v. State of Arunachal Pradesh

2020-03-04

MIR ALFAZ ALI

body2020
JUDGMENT Mir Alfaz Ali, J. - All these petitions under Article 226 of the Constitution of India have been filed by the respective petitioners praying for setting aside the impugned order vide Memo No. AR/SSA/ESTT/APTET & CTET/Regu/Teacher/2017-18 dated 21-12-2017, whereby the regularization/appointment of the petitioners as Trained Graduate Teachers (for short TGT) and Primary Teachers (for short PRT) respectively, under the department of Elementary Education, Government of Arunachal Pradesh vide common order No.AR/SSA/ESTT/APTET/CTET/ Regu/teacher/2016-2017 dated 07-12-2017 has been withdrawn. The petitioners also pray for issuance of direction to the respondent authorities to allow the petitioners to discharge their duties as Trained Graduate Teachers (TGT) and Primary Teachers (PRT) and to release their pay and allowance. By the Writ Petition No. 9 of 2018 initially 135 nos. of petitioners approached this Court. However, 17 out of 135 petitioners have withdrawn leaving 118 in the fray. 2. The facts leading to the present writ petitions are as follows : The petitioners were appointed on contractual basis as Asstt. Teachers and Junior Teachers respectively under the scheme of Sarva Siiksha Abhiyan (for short SSA). The Asstt. Teachers were appointed for teaching students of Class I to IV and junior teachers were appointed for teaching students of Class VI to VIII. It has been stated that approximately 6850 teachers in both categories, i.e., Assistant Teachers and Junior Teachers were appointed on contractual basis under the SSA in the State of Arunachal Pradesh and such appointment started from the year 2003. On 21-06-2017 the Chief Minister of Arunachal Pradesh announced a proposal for appointment of approximately 1000 nos. of contractual teachers working under the SSA by way of regularization in a phased manner, against the regular vacancies in the Department of Education. Pursuant to such announcement, the Joint Director, Elementary Education, Govt. of Arunachal Pradesh directed the Deputy Directors of Schools, Education Department of various districts to furnish the list of the contractual teachers working under the SSA scheme, who have cleared the Arunachal Pradesh Teachers'' Eligibility Test or Central Teachers Eligibility Test (APTET/CTET). Accordingly, district-wise list of such teachers working under the SSA, who were found suitable for regularization was prepared, which was approved by the Government of Arunachal Pradesh vide the U.O. No. 279 dated 07-12-2007. Accordingly, district-wise list of such teachers working under the SSA, who were found suitable for regularization was prepared, which was approved by the Government of Arunachal Pradesh vide the U.O. No. 279 dated 07-12-2007. On the basis of the said approval of the Government, all the petitioners (122 in numbers), who were working under the SSA, on contractual basis, were regularized and appointed against the permanent vacancies. At the relevant time there were only 122 regular vacancies, of which 63 for Trained Graduate Teachers (TGT) and 59 for Primary Teachers (PRT). On the basis of such regularization all the petitioners have joined their new posts of trained graduate teachers as well as primary teachers respectively after resigning from their existing posts of contractual teachers under the SSA scheme. In the meantime, a representation dated 18-12-2017 was filed by one Jumpe Keyu (Respondent No. 18), who was also an APTET qualified contractual teacher under the SSA, alleging that the regularization and appointment against regular vacancies were done on the basis of pick and choose basis and without following any procedure and also without maintaining seniority. Upon receiving the representation submitted by Jumpe Keyu, who claimed to have represented all the TET qualified teachers working under the SSA, the Chief Secretary of the State of Arunachal Pradesh made a note on the representation, stating that the allegations made therein were serious and directed the Secretary, Department of Education to submit a detailed report on the said representation. After 3(three) days of submitting the representation, the Secretary, Vigilance Department wrote a letter dated 21-12-2017 to the Secretary, Education, Govt. of Arunachal Pradesh stating that the Vigilance Department was examining the matter pertaining to regularization of 122 nos. of contractual teachers working under the SSA and Chief Minister also vide order dated 21-12-2017 asked to withdraw the order of regularization of said 122 nos. of SSA teachers. Accordingly on the same day, i.e., on 21-12-2017, the Secretary, Education Department passed an order withdrawing the earlier order of regularization dated 07-12-2017, whereby, the petitioners were regularized against vacancies of 63 trained graduate teachers and 59 primary teachers. Aggrieved by the said order withdrawing the order of regularization, the petitioners have filed the present series of writ petitions. Accordingly on the same day, i.e., on 21-12-2017, the Secretary, Education Department passed an order withdrawing the earlier order of regularization dated 07-12-2017, whereby, the petitioners were regularized against vacancies of 63 trained graduate teachers and 59 primary teachers. Aggrieved by the said order withdrawing the order of regularization, the petitioners have filed the present series of writ petitions. It was stated in the petitions that after issuance of the regularization and appointment letter, they have already joined in their new assignment as trained graduate teachers and primary teachers, respectively, and thereby became the holder of civil post. Therefore, the orders withdrawing the regularization of the petitioners amounted to removal from service arbitrarily without assigning any reason was violative of Article 311 of the Constitution as well as principles of natural justice. 3. The State-respondents in their affidavit-in-opposition have taken the stand, that though, the Chief Minister made an announcement on 21-06-2017 regarding the regularization of SSA teachers having APTET/CTET qualification in a phased manner, such proposal was not approved by the cabinet. It was also stated that 122 contractual teachers were randomly regularized without holding DPC or without following any procedure and maintaining seniority. It was also stated in the affidavit-in-opposition, that the criteria suggested by the Director of Elementary Education for regularization of the SSA teachers was also not followed and the regularization was made at the behest of the then parliamentary secretary, who prepared and forwarded the list of the candidates for regularization. The parliamentary secretary was not the competent authority and the list was not prepared by the concerned Education Department. Further contention of the State-respondents was that the regularization was made arbitrarily and therefore, the same was withdrawn immediately with the direction of the Chief Minister after the matter having been examined by the Vigilance Department. It was also stated that the matter was being enquired and an FIR was also lodged for missing of the file pertaining to the regularization of the petitioners which was under investigation. 4. The private respondent No. 18 had taken the stand in his affidavit-in-opposition that the regularization of the petitioners was actuated by corrupt practice and against the relevant recruitment rule and therefore, such regularization/appointment was illegal and violative of Article 14 and 16 of the Constitution and therefore, the impugned order withdrawing the regularization cannot be interfered with. 4. The private respondent No. 18 had taken the stand in his affidavit-in-opposition that the regularization of the petitioners was actuated by corrupt practice and against the relevant recruitment rule and therefore, such regularization/appointment was illegal and violative of Article 14 and 16 of the Constitution and therefore, the impugned order withdrawing the regularization cannot be interfered with. It was also stated that regularization/appointment of the petitioners being contrary to the statutory rules governing the appointment of PRT and TGT, no protection under Art. 311 of the Constitution is available to the petitioners. 5. I have heard Mr. P.K. Tiwari, learned Senior Counsel assisted by Mr. M. Kato and Mr. U. Deka for the petitioners, Mr. D. Soki, learned Senior Govt. Advocate and Mr. T. Jamoh, learned Standing Counsel for the State respondents. Also heard Mr. D. Panging, learned counsel for the private respondents and Mr. N. Ratan, learned counsel for the intervenors. 6. Mr. P.K. Tiwari, learned counsel for the petitioners contended that the order of regularization/appointment passed by competent authority was communicated to the petitioners and they have also joined in the respective posts, and as such, the order of regularization and appointment became effective. Once the order becomes effective, it cannot be reconsidered, altered or rescinded without giving opportunity of hearing to the persons to be affected, inasmuch as, the order of withdrawal carried serious civil consequence. Mr. Tewari further contended that the order withdrawing the regularization of the petitioners amounted to removal of the petitioners from the service and therefore, the impugned order, which was made without holding any enquiry violates the mandate of Art. 14 and 311 of the Constitution as well as the principle of natural justice. Learned counsel for the petitioners further contended that the decision to withdraw the order of regularization was not taken by the appointing authority or any other appropriate authority, but by political authority and therefore, the impugned order was illegal and that the impugned order was also bad for not assigning any reason. Learned counsel would further submit that although the staterespondents sought to assign reasons for withdrawing the order of regularization in the affidavit-in-opposition, such reason in the affidavit in opposition subsequent to the orders cannot cure the illegality of non-recording of the reason in the order. To buttress his submission, the learned counsel Mr. Learned counsel would further submit that although the staterespondents sought to assign reasons for withdrawing the order of regularization in the affidavit-in-opposition, such reason in the affidavit in opposition subsequent to the orders cannot cure the illegality of non-recording of the reason in the order. To buttress his submission, the learned counsel Mr. Tiwari placed reliance on the following decisions - i. Commissioner of Police, Bombay vs. Gordhandas Bhanji, (1952) AIR SC 16 . ii. S.L. Kapoor Vs. Jagmohan & Ors., (1980) 4 SCC 379 . iii. State of Orissa Vs. Dr. (Ms.) Binapani Devi, (1967) 2 SCR 625 . iv. Mohinder Singh Gill Vs. Chief Election Commissioner, (1978) 1 SCC 405 . v. S.N. Mukherjee Vs. Union of India, (1990) 4 SCC 594 . vi. Tagin Litin Vs- State of Arunachal Pradesh & Anr., (1996) 5 SCC 83 . 7. Learned counsel Mr. U. Deka adopted the submission made by the learned senior counsel, Mr. P.K. Tiwari. 8. Learned Standing Counsel for the Education Department, T. Jamoh submitted that regularization was done on the basis of a list forwarded by the parliamentary secretary without following the rules and procedures and therefore, the regularization was withdrawn within a week on the basis of enquiry conducted by the Vigilance Cell. It was further contended that having realized the wrong committed by the arbitrary regularization, the same was immediately rectified by withdrawing the regularization. Mr. Jamoh further contended, that when the regularization/appointment of the petitioners itself was illegal and not as per the rules and procedures, any opportunity to the petitioners of being heard would be an empty formality as there could be no other alternative but to withdraw the illegal and arbitrary order of regularization. In order to bolster his submission, learned Standing Counsel placed reliance on the following decisions -- (I) Union of India & Anr. -VS- Raghuwar Pal Singh, (2018) 4 Scale 337 (II) M.C. Mehta-VS- Union of India & Ors., (1999) 6 SCC 237 (III) S.L. Kapoor- VS- Jagmohan & Ors., (1980) 4 SCC 379 9. Mr. D. Panging, learned counsel for the private respondent No. 18 also submits that the regularization/appointment of the petitioners itself was illegal as the contractual teachers could not have been regularized and appointed against the regular vacancy without following the procedure prescribed under the concerned recruitment rules. Mr. D. Panging, learned counsel for the private respondent No. 18 also submits that the regularization/appointment of the petitioners itself was illegal as the contractual teachers could not have been regularized and appointed against the regular vacancy without following the procedure prescribed under the concerned recruitment rules. The regularization/appointment of the petitioners itself being invalid for being contrary to the recruitment Rules as well as violative of the Article 14 & 16 of the Constitution of India, they were not entitled to protection under Article 311 of the Constitution. Mr. Panging further contended that the court may not issue a writ for setting aside the impugned withdrawal order, as the same shall amount to restoration of an illegal appointment. In support of his submission, Mr. Panging placed reliance on the following decisions i. A.B. Krishna & Ors. Vs.-State of Karnataka and Ors., (1980) 4 SCC 379 ii. State of Karnataka Vs.- Uma Devi, (2006) 4 SCC 1 iii. Dipak Babaria and Others-Vs.- State of Gujrat & Ors., (2014) 3 SCC 502 iv. A. Biswanatha Pillai Vs.- State of Kerala & Ors., (2004) 2 SCC 105 v. M.C. Mehta- Vs.- Union of India & ors., (1999) 6 SCC 237 vi. Punjab Water Supply and Sewerage Board Vs. - Ranjodh Singh & Ors., (2007) 2 SCC 491 10. Mr. N. Ratan, learned counsel for the intervenor respondent, adopted the submission of the learned State Counsel as well as Mr. Panging and contended that regularization/appointment of the petitioners was illegal being contrary to the statutory rules and in violation of Article 14 & 16 of the Constitution, the impugned order as corrective measure by the government to rectify the illegality, cannot be interfered. 11. Mr. P. K. Tiwari, learned senior counsel contended refuting the submissions made by the learned counsel for the respondents, that the court has to confine itself to the examination of the impugned order and cannot enter into judicial scrutiny of the order of regularization and appointment as no separate writ petition has been filed challenging the legality of the regularization/appointment of the petitioners. 12. The matter in controversy in these writ petitions and the rival submission made by the learned counsel for both the parties broadly raises the following question (i) Whether the impugned orders withdrawing the regularization/appointment of the petitioners was violative of Article 311 of the Constitution ? 13. 12. The matter in controversy in these writ petitions and the rival submission made by the learned counsel for both the parties broadly raises the following question (i) Whether the impugned orders withdrawing the regularization/appointment of the petitioners was violative of Article 311 of the Constitution ? 13. The undisputed facts which are relevant for adjudication of the controversy raised in these bunch of writ petitions are that the petitioners were originally appointed as contractual teacher under the SSA Scheme. Later on they were appointed as TGT and PRT respectively by way of regularisation against the permanent vacancies. The appointment orders were issued on 07-12-2017, which were duly communicated and the petitioners have joined their respective post. Thereafter, the regularization/appointment of the petitioners were withdrawn by the impugned order dated 21-12-2017. There was also no dispute that the appointment order of the petitioners became effective and the petitioners were not given any opportunity of being heard, before passing the impugned orders withdrawing the regularization/appointment of the petitioners. On the basis of the above admitted position the basic challenge against the impugned order is violation of Article 311 of the Constitution, for not holding any enquiry or not giving any opportunity to the petitioners, who purportedly became the holder of civil post. On the other hand, the common submission of all the respondents was that regularization/appointment of the petitioners as TGT & PRT itself was illegal and void and therefore, protection under Article 311 of the Constitution was not available to the petitioners. 14. Article 311 of the Constitution provides that no member of the civil service or holding civil post shall not be dismissed or removed or reduced to rank except after an enquiry, in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of the charges. The above provision is of-course, subject to the proviso to the Article 311 of the Constitution. 15. The Apex Court in R. Vishwanatha Pillai vs State Of Kerala And Ors (supra) held that when the very appointment to the civil post is vitiated by fraud or forgery or illegality, it would necessarily follow that no constitutional right under Article 311 of the Constitution can possibly flow and the Article 311 of the Constitution is not attracted in case of such illegal appointment. The Apex Court also observed that unless a person can lay a claim to the post on the basis of appointment, being illegal, he cannot claim the constitutional guarantee given under Article 311 and cannot be considered to be a person, who holds a post within the meaning of Article 311 of the Constitution. 16. In the instant case, it is undisputed that the petitioners were initially appointed as contractual teachers under the SSA scheme and there were about 6850 such contractual teachers in the state of Arunachal Pradesh. According to the petitioners, the Chief Minister of the state made an announcement in a meeting, that 1000 contractual teachers, who have cleared the APTET and CTET shall be appointed by way of regularisation, against regular vacancies in the department of Education and pursuant to such announcement of the Chief Minister, the petitioners were regularised and appointed against the existing 122 vacancies for the post of TGT and PRT respectively. The state respondents in their affidavit-in-opposition contended, that though the Chief Minister made an announcement for regularisation of the contractual teachers, there was no cabinet decision nor any policy decision was taken by the Govt. It was also stated that the regularisation and appointment of the petitioners to the post of TGT and PRT was made arbitrarily without following any procedure and having realized the same, immediately the Govt. has withdrawn the order of regularisation of the petitioners. The precise contention of the private respondent No. 18 was also that the regularization/appointment of the petitioners was not made in accordance with the concerned Rules governing the appointment and condition of service of PGT and PRT and therefore, such appointment by way of regularization was illegal for being contrary to the provision of the relevant Rules. 17. Admittedly the Arunachal Pradesh Education Rules, 2010 framed under Section 141 of the Arunachal Pradesh Education Act, 2010 (Act 8 of 2010) governs the appointment and condition of service of the TGT as well as PRT. 17. Admittedly the Arunachal Pradesh Education Rules, 2010 framed under Section 141 of the Arunachal Pradesh Education Act, 2010 (Act 8 of 2010) governs the appointment and condition of service of the TGT as well as PRT. Sub-rule (IX) & (X) of Rule 55 of the Arunachal Pradesh Education Rules, 2010 (for short Rule 2010), which governs the appointment and condition of service of the TGT and PRT read as under :- "Sub-Rule (IX) : The post of Junior Teacher (TGT) shall be filled up by direct recruitment through Arunachal Pradesh Public Service Commission and by promotion from among the Assistant Teachers of department who have completed minimum 12 (twelve) years of regular service in the grade and possessing qualification prescribed for Junior Teacher, i.e., Second Class Bachelor Degree (Science/Arts/Commerce) with B.Ed. The method of direct recruitment/departmental promotion shall be as follows :- (a) 50% by direct recruitment through APPSC. (b) 50 % by departmental promotion through DPC. (c) 80% of the post shall be reserved for APST candidate out of which 3% post for physically challenged persons and 5% for meritorious sports persons. (d) Age for direct recruitment shall be between 21 years to 28 years with 5 (five0 years relaxation for APST candidates. (e) Period of probation shall for direct recruitment shall be 2 (two) years. (f) The scale of pay shall be as per the State Government notification corresponding to the 6th Central Pay Commission Recommendations. Sub-Rule (X) The post of Assistant Teacher (Primary Teacher) shall be filled up by 100% direct recruitment through written test and viva voice conducted by the department. The detail is as follows : (a) Educational and other qualification required for direct recruitment 0 Class-XII passed with Diploma in Elementary Education (D.El. Ed.) b) 80% of the post shall be reserved for APST candidate out of out of which 3% post for physically challenged persons and 5% for meritorious sports persons. (c) Age for direct recruitment shall be between 18 years to 28 years with 5 (five) years relaxation for APST candidates. (d) Period of probation shall for direct recruitment shall be 2 (two) years. (e) The scale of pay shall be as per the State Government notification corresponding to the 6th Central Pay Commission Recommendations. 18. (c) Age for direct recruitment shall be between 18 years to 28 years with 5 (five) years relaxation for APST candidates. (d) Period of probation shall for direct recruitment shall be 2 (two) years. (e) The scale of pay shall be as per the State Government notification corresponding to the 6th Central Pay Commission Recommendations. 18. Thus, the above Rules governing the appointment and condition of service of TGT and PRT do not provide for appointment to the post of TGT and PRT by way of regularization from another stream of contractual teachers, who were appointed under a specific scheme. Apparently the petitioners, who were working as contractual teachers under the SSA scheme were appointed as PRT and TGT by various orders dated 07-12-2017 by way of regularisation without following the Arunachal Pradesh Education Rules, 2010 governing the appointment and condition of service of the TGT and PRT. The Apex Court in Secretary, State of Karnataka & Ors. Vs. Uma Devi (supra) held that the power of the state as employer is limited and it cannot deviate from the statutory rules governing the appointment and condition of service. If the rules have been made governing the appointment and condition of service than the Govt. can make appointment only in accordance with the Rules. The Apex Court held as under :- "6. The power of a State as an employer is more limited than that of a private employer inasmuch as it is subjected to constitutional limitations and cannot be exercised arbitrarily (See Basu''s Shorter Constitution of India). Article 309 of the Constitution gives the Government the power to frame rules for the purpose of laying down the conditions of service and recruitment of persons to be appointed to public services and posts in connection with the affairs of the Union or any of the States. That Article contemplates the drawing up of a procedure and rules to regulate the recruitment and regulate the service conditions of appointees appointed to public posts. It is well acknowledged that because of this, the entire process of recruitment for services is controlled by detailed procedure which specify the necessary qualifications, the mode of appointment etc. If rules have been made under Article 309 of the Constitution, then the Government can make appointments only in accordance with the rules. The State is meant to be a model employer. If rules have been made under Article 309 of the Constitution, then the Government can make appointments only in accordance with the rules. The State is meant to be a model employer. The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 was enacted to ensure equal opportunity for employment seekers. Though this Act may not oblige an employer to employ only those persons who have been sponsored by employment exchanges, it places an obligation on the employer to notify the vacancies that may arise in the various departments and for filling up of those vacancies, based on a procedure. Normally, statutory rules are framed under the authority of law governing employment. It is recognized that no government order, notification or circular can be substituted for the statutory rules framed under the authority of law. This is because, following any other course could be disastrous inasmuch as it will deprive the security of tenure and the right of equality conferred on civil servants under the Constitutional scheme. It may even amount to negating the accepted service jurisprudence. Therefore, when statutory rules are framed under Article 309 of the Constitution which are exhaustive, the only fair means to adopt is to make appointments based on the rules so framed." 19. Admittedly the initial contractual appointment of the petitioners was not against any regular vacancy of PRT and TGT. It was also contended by the private respondent that the appointment of the petitioners as PRT and TGT, by way of regularisation was also violative of the Article 14 & 16 of the Constitution. Refuting the submission of the respondent, Mr. P.K. Tiwari contended that though, the petitioners were appointed as contractual teachers under the SSA Scheme, such contractual appointment was made through proper process of selection and as such, there was no question of violation of Article 14 and 16 of the Constitution. It was also contended by Mr. Tiwary, that the Govt. took a policy decision to fill up the regular vacancies against the post of TGT and PRT in the Department of Education by way of regularization from amongst the contractual teachers working under SSA Scheme and such policy decision was never opposed by the respondents including the private respondents and in fact, they also sought the benefit of regularisation as per the said policy decision, and therefore, they cannot challenge the policy decision of the Govt.. The contention of Mr. The contention of Mr. Tewari has been countered by the learned counsel for the private respondent as well as the intervenor respondent by stating, that the administrative instruction or even a policy decision of the govt. cannot override the statutory rules framed under the statute or constitutional provisions to govern the appointment and condition of service. It was also contended, that though the Chief Minister made an announcement, for regularisation, there was no cabinet decision to that effect and the appointment of the petitioners by way of regularisation was made arbitrarily at the behest of the then parliamentary secretary, who prepared the list and forwarded to the Education Department for regularization and as such, the appointment of the petitioners was made even without following the procedure formulated by the Education Department. 20. Coming to the submission of Mr Tiwari that contractual appointment under SSA scheme was made through due selection process, even if it is assumed for the sake of argument, that at the time of appointment of the petitioners on contractual basis, there was public advertisement, interview etc. the process of appointment cannot be held to be in conformity with the mandate of Article 14 & 16 of the Constitution, so far the appointment of the petitioners as TGT and PRT against the regular vacancies are concerned, reason being that contractual appointment as teacher under the SSA was made for a specific scheme and not against any regular vacnay. Therefore, when the initial contractual appointment of the petitioners were made under a specific scheme and not against any regular vacancy of sanctioned posts, many aspirants, who were eligible to compete for the post of TGT and PRT against regular vacancies might not have applied for such contractual post having regard to the nature of contractual appointment and therefore, even though some procedures with regard to advertisement, interview etc were followed for contractual appointment of the petitioners, such procedure followed at the initial stage of appointment of the petitioners as contractual teachers would not satisfy the mandate of Articles 14 & 16 so far the appointment against the regular vacancy of sanctioned post of teachers in the Department of Education was concerned. Because filling up the regular vacancy by way of regularization from amongst the SSA teachers would certainly deprive many aspirants of participating in the competition for such post and therefore, appointment of the petitioners by way of regularisation would certainly violate the Article 14 & 16 of the Constitution. 21. What is therefore, abundantly clear in the instant case is that the appointment of the petitioners against regular vacancies of TGT and PRT was not only contrary to the Education Rules, 2010 governing the appointment and condition of service of the TGT and PRT, it was also violative of the Article 14 and 16 of the Constitution. 22. Mr. D. Panging, learned counsel for the private respondent No. 18 contended that when the rule governing the appointment and condition of service is made either under Article 309 of the Constitution or under any statute made by the legislature, such rule cannot be superseded by any executive instruction or policy decision of the govt. under Article 162 of the Constitution. The contention of Mr. Panging appears to be preponderous, inasmuch as, when a rule has been framed under the statute and the same is exhaustive, executive instruction cannot supercede the Rules, nor can there be another set of rules in the field covered by the existing Rules framed under the statue on the principle of "doctrine of occupied field". When, evidently the Education Rule, 2010 was framed in exercise of power conferred by Section 141 of the Arunachal Pradesh Education Act, 2010, which governs the appointment and Condition of Service of the TGT as well as PRT and there was no material to show that the Rule, 2010 was not exhaustive, such statutory Rules could not be superceded by executive instruction or policy decision of the Govt. 23. In Punjab Water Supply Sewerage Board Vs.- Ranjodh Singh And Others, (2007) 2 SCC 491 , the Apex Court observed that a policy decision of the Govt. or even a Scheme under Article 162 of the Constitution shall not prevail over the statutory rule. The Apex Court held as under ----- "10. A statutory board is an autonomous body. Nothing has been brought to our notice to show that under the statute any direction issued by the State shall be binding on it. or even a Scheme under Article 162 of the Constitution shall not prevail over the statutory rule. The Apex Court held as under ----- "10. A statutory board is an autonomous body. Nothing has been brought to our notice to show that under the statute any direction issued by the State shall be binding on it. The State may have some control with regard to recruitment of employees of local authorities, but such control must be exercised by the State strictly in terms of the provisions of the Act. The statutory bodies are bound to apply the rules of recruitment laid down under statutory rules. They being ''States'' within the meaning of Article 12 of the Constitution of India, are bound to implement the constitutional scheme of equality. Neither the statutory bodies can refuse to fulfil such constitutional duty, nor the State can issue any direction contrary to or inconsistent with the constitutional principles adumbrated under Articles 14 and 16 of the Constitution of India. The purported directions of the State were otherwise bad in law in so far as thereby the statutory rules were sought to be superceded. A circular letter furthermore is not a statutory instrument. It was not even issued by the State in exercise of the power under Article 162 of the Constitution of India. Even a scheme issued under Article 162 of the Constitution of India, would not prevail over statutory rules. 19. In the instant case, the High Court did not issue a writ of mandamus on arriving at a finding that the respondents had a legal right in relation to their claim for regularization, which it was obligated to do. It proceeded to issue the directions only on the basis of the purported policy decision adopted by means of a circular letter and, as noticed hereinbefore, even a policy decision adopted in terms of Article 162 of the Constitution of India in that behalf would be void. Any departmental letter or executive instruction cannot prevail over statutory rule and constitutional provisions. Any appointment, thus, made without following the procedure would be ultravires." 24. Apex Court in AB Krishna Vs- State of Karnataka, (1998) 3 SCC 495 held as under :- "7. The Rule-making function under the Proviso to Article 309 is a legislative function. Any departmental letter or executive instruction cannot prevail over statutory rule and constitutional provisions. Any appointment, thus, made without following the procedure would be ultravires." 24. Apex Court in AB Krishna Vs- State of Karnataka, (1998) 3 SCC 495 held as under :- "7. The Rule-making function under the Proviso to Article 309 is a legislative function. Since Article 309 has to operate subject to other provisions of the Constitution, it is obvious that whether it is an Act made by the Parliament or the State Legislature which lays down the conditions of service or it is the Rule made by the President or the Governor under the Proviso to that Article, they have to be in conformity with the other provisions of the Constitution specially Article 14, 16 310 and 311. 8. The Fire Services under the State Government were created and established under the Fire Force Act, 1964 made by the State Legislature. It was in exercise of the power conferred under Section 39 of the Act that the State Government made Service Rules regulating the conditions of Fire Service. Since Fire Service had been specially established under an Act of the Legislature and the Government, in pursuance of the power conferred upon it under that Act, has already made Service Rules, any amendment in the Karnataka Civil Services (General Recruitment) Rules, 1977 would not affect the special provisions validly made for Fire Services. As a matter of fact, under the scheme of Article 309of the Constitution, once a Legislature intervenes to enact a law regulating the conditions of service, the power of Executive, including the President or the Governor, as the case may be, is totally displaced on the principle or "Doctrine of Occupied Field". If, however, any matter is not touched by that enactment, it will be competent for the Executive to either issue executive instructions or to make a Rule under Article 309 in respect of that matter. 9. It is no doubt true that the Rule-making authority under Article 309 of the Constitution and Section 39 of the Act is the same, namely, the Government (to be precise, Governor, under Article 309 and Govt. under Section 39), but the two jurisdictions are different. As has been seen above, power under Article 309 cannot be exercised by the Governor, if the legislature has already made a law and the field is occupied. under Section 39), but the two jurisdictions are different. As has been seen above, power under Article 309 cannot be exercised by the Governor, if the legislature has already made a law and the field is occupied. In that situation, Rules can be made under the Law so made by the legislature and not under Article 309. It has also to be noticed that Rules made in exercise of the rule- making power given under an Act constitute Delegated or Sub- ordinate legislation, but the Rules under Article 309cannot be treated to fall in that category and, therefore, on the principle of "occupied field", the Rules under Article 309 cannot supersede the Rules made by the legislature." 25. The learned counsel for the petitioners Mr. Tiwari submits that the impugned orders were illegal as authority did not record any reason for taking such a drastic action of withdrawing the regularization/appointment of the petitioners and therefore, non-recording of reason in the orders vitiates the orders of withdrawal. To buttress his submission, the learned counsel placed reliance on a decision of the Apex Court in S.N. Mukherjee Vs. Union of India, (1990) 4 SCC 594 . The Apex Court observed that it must be concluded that except in cases, where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record reason for its decision. 26. Mr. Tiwary also placed reliance on a decision of the Apex Court in Mohinder Singh Gill and Anr. VS- Chief Election Commissioner, (1978) 1 SCC 405 to contend that when the order is bad for not giving reason, the defect cannot be cured by giving reason subsequently in the affidavit or otherwise. Mr. Tiwari referred to the affidavit filed by the State-respondent, where some reason have been cited to support the action of the authority in withdrawing the order of regularization of the petitioners. 27. The following is the impugned orders, by which the regularization of the petitioners was withdrawn are as under :- GOVT. Mr. Tiwari referred to the affidavit filed by the State-respondent, where some reason have been cited to support the action of the authority in withdrawing the order of regularization of the petitioners. 27. The following is the impugned orders, by which the regularization of the petitioners was withdrawn are as under :- GOVT. OF ARUNACHAL PRADESH DIRECTORATE OF ELEMENTARY EDUCATION ITANAGAR NO.AR/SSA/ESTT/APTET & CET Regu/Teacher/2017-18        Dated Itanagar, the 21th Dec 2017 In pursuance of Vigilance Department Letter No. VIG-172 /2017/402 dated 21st Dec, 2017 addressed to the undersigned, allthe orders of this Directorate bearing No. AAR/SSA/ESTT/APTET &CTET Regu/Teacher/2017-18 dated 07th December, 2017regarding regularisation of 63 (sixty three) Trained GraduateTeachers (TGT) and 59 (fifty nine) Primary Teachers (PRT) are hereby withdrawn with immediate effect. This issues with the approval of the competent authority. (Azimul Haque), IAS Secretary (Education) Govt. of Arunachal Pradesh GOVT. OF ARUNACHAL PRADESH VIGILANCE DEPARTMENT BLOCK No. 4, 3rd Floor, A.P. SECRETARIAT, ITANAGAR. NO.VIG/172/2017/402 Dated Itanagar, the 21th Dec 2017 To, The Secretary Edcuation, Govt. of Arunachal Pradesh. The matter regarding regularization of 63 (sixtythree) Trained Graduate teachers (TGT) and 59 (fifty nine)Primary Teachers (PRT) issued vide No. NO.AR/SSA/ESTT/APTET & CET Regu/Teacher/2017-18dated 7th Dec, 2017 was examined by the VigilanceDepartment and the Honble Chief Minister vide his orderdated 21.12.2017 has directed to withdraw all these orders immediately. Yours faithfully, (S.K. Jain), IAS Secretary (Vigilance) Govt. of Arunachal Pradesh Itanagar 28. The above orders issued by the Secretary Vigilance, Govt. of Arunachal Pradesh as well as the impugned order dated 21-12-2017 issued by the Secretary Education, Govt. of Arunachal transpires that the regularization of the petitioners was examined by the Vigilance Department and pursuant to the communication from the Vigilance Department and also the direction of the Chief Minister, the impugned order was issued, whereby the regularization/appointment of the petitioners were withdrawn. The record produced before the court reveals that though, the Chief Minister made an announcement regarding appointment of regularisation of 1000 SSA teachers in phased manner, there was a file not for obtaining cabinet approval. However, no such cabinet approval was obtained and having noticed anomalies in the process of regularisation, vigilance enquiry was conducted. The record produced before the court reveals that though, the Chief Minister made an announcement regarding appointment of regularisation of 1000 SSA teachers in phased manner, there was a file not for obtaining cabinet approval. However, no such cabinet approval was obtained and having noticed anomalies in the process of regularisation, vigilance enquiry was conducted. What is therefore, apparent is that though, there was no detailed reason in the impugned order, the order indicates that the Vigilance Department has examined the matter and pursuant to such examination, steps for withdrawal of the regularization was taken in all promptitude and the impugned order was issued. 29. In the instant case, it was contended that the Chief Minister made an announcement in a function that approximately 1000 contractual teachers, who were working under the SSA and qualified CTET or APTET shall be regularised and appointed against the regular vacancies of TGT and PRT and pursuant to such announcement, the exercise was undertaken to prepare a list of eligible candidates. The contention of the State-respondent was that there was no policy decision by the State Govt. through any cabinet decision. Rather the regularisation and appointment of the petitioners were made arbitrarily at the behest of the then Parliamentary Secretary. Apparently no policy decision of the Govt. could be brought on record in the instant case. Even if there has been a policy decision of the Govt. to appoint the contractual teachers against regular vacancy by way of regularisation dehors the rule, such policy decision or executive instruction could not supercede the statutory rule governing the appointment and condition of service. Otherwise also filling up the regular vacancies of TGT and PRT by way of regularisation without following the rule governing the appointment to such posts would violate the Article 14 and 16 of the Constitution, inasmuch as, the process of regularisation dehors the rule and without open competition deprive the candidates, who were eligible for appointment and could have participated in the process of recruitment. The office record shows that certain criterion were suggested for the regularisation, however, the list of eligible candidates was prepared for appointment against 122 regular vacancies by way of regularization without adhering to such criterion. Apparently no cabinet approval was obtained for the same. The office note placed before the Minister, Education also pointed out some anomalies in the list. The office record shows that certain criterion were suggested for the regularisation, however, the list of eligible candidates was prepared for appointment against 122 regular vacancies by way of regularization without adhering to such criterion. Apparently no cabinet approval was obtained for the same. The office note placed before the Minister, Education also pointed out some anomalies in the list. However, despite the office note pointing out anomalies in the list, the minister hurriedly accorded approval to the list on 01/12/17 in the office file and formal approval order was directed to be issued on 05/12/17. The appointment letters were prepared and placed for signature on 07/12/2017 and the same were eventually issued on 08/12/17. On 11/12/17 another office note was given by the Secretary, Education Department stating therein, that the Chief Minister directed him on 09/12/2017 to place the matter of regularisation before the cabinet and also directed not to issue the appointment letter. The above development leading to issuance of the various appointment letter on 07/12/17 clearly indicated that though, appointment was given, to the petitioners hurriedly by way of regularisation under the garb of policy decision, there was in fact, no such policy decision of the govt. to regularise the SSA teacher by any cabinet resolution. Evidently there was a complaint against the regularization of the petitioners and a vigilance enquiry was already undertaken. If all these facts and circumstances are taken into consideration, then it is difficult to say that the impugned order of withdrawal was without any reason. It is no doubt true, that in the impugned order detailed reasons were not recorded. The Apex Court, in Gujrat Steel Tubes Limited Vs.- Gujrat Steel Tube Mazdoor Sabha,1980 2 SCC 539 , observed that dismissal order must be grounded on substantial reason, whether such reason is disclosed or undisclosed, the court will find out from the other proceeding or documents connected with the formal order of termination, what the true ground for termination is. Thus, it is not necessary that the administrative order of the present nature must always disclose the detailed reasons in the order itself. If the order is found to be backed by reason available in other connected document or related office file, the requirement of recording reason stands satisfied and the order cannot be criticised for being without reason. Thus, it is not necessary that the administrative order of the present nature must always disclose the detailed reasons in the order itself. If the order is found to be backed by reason available in other connected document or related office file, the requirement of recording reason stands satisfied and the order cannot be criticised for being without reason. Having taken note of all the facts and circumstances and the materials reflected in the office record, I am of the view that the impugned order cannot be held to have been vitiated for want of recording reason. 30. On the question of violation of the principle of natural justice raised by Mr. Tiwari, the learned counsel, Mr. Panging for the private respondent as well as the learned counsel for the intervenor, Mr. N. Ratan submitted, that when the order of regularization/appointment of the petitioners, TGT and PRT respectively, was illegal and void for being contrary to the rule and violative of the Article 14 & 16 of the Constitution, there could not be any other alternative, but to withdraw/cancel the regularization/appointment of the petitioners, and as such, the question of giving opportunity to the petitioners of being heard or following the principles of natural justice would have been empty formalities. Therefore, even the court holds that there was violation of the principles of natural justice, that per se cannot be a ground for issuing a writ under Article 226 of the Constitution to set aside the impugned order of withdrawal, which would amount to perpetuating an illegal and void appointment, submits Mr. Panging and Mr. Ratan. 31. The Apex Court in S.L.Kapoor Vs- Jaganathan and Ors.,1984 SCC 379 dealing with the question whether failure to observe the principles of natural justice does matter if such observation of natural justice would have made no difference, held in paragraph 17 as under :- '''' Linked with this question is the question whether the failure to observe natural justice does at all matter if the observance of natural justice would have made no difference, the admitted or indisputable facts speaking for themselves. Where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it approves the non observance of natural justice but because Courts do not issue futile writs. But it will be a pernicious principle to apply in other situations where conclusions are controversial, however, slightly, and penalties are discretionary." 32. In Kendriya Vidlaya Sanghathan-Vs.- Ajou Kumar Das, (2002) 4 SCC 503 the Apex Courtn observed as under "If the appointment orders are nullity the question of observance of principle of natural justice would not arise." 33. In Dhirender Singh and Ors.-Vs- State of Haryana and Ors., (1997) 2 SCC 712 , the termination order of the appellant therein without notice was not interfered with by the Apex Court, as admittedly the same was not approved by the competent authority. 34. A three-Judge-Bench of the Apex Court in Union of India and Anr. Vs.- Raghuwar Pal Singh, (2018) AIR SC 1411 confronted with the similar question as to the affect of noncompliance of natural justice held as under :- "The Tribunal had justly relied on the exposition in the cases of M. Bhaskaran (supra) and in particular, Kendriya Vidyalaya Sangathan (supra). In the latter case, in paragraph 5 of the reported decision, while dealing with a similar situation, the Court observed that if the appointment letters are nullity, having been issued by an officer who did not wield authority to do so, there was no question of observance of principles of natural justice even though the affected party was not before the Court." 35. In M.C. Mehta-Vs.- Union of India (supra), the Apex Court held that "if on the admitted or indisputable factual position only one conclusion is possible and permissible the court need not issue a writ merely because there was violation of the principle of natural justice." The Apex Court also held following an earlier decision in Venkateswara Rao-Vs.- AP, (1966) AIR SC 828 that --- The court can under Article 32 of 226 refuse to exercise its discretion of striking down the order, if such striking down will result in restoration of another order passed earlier in favour of the petitioner and against the opposite party, in violation of the principle of natural justice or is otherwise not in accordance with law. 36. In the case in hand, as already indicated above, the appointment/regularisation of the appellants was illegal and void and as such, there could be no alternative but to cancel such appointment order, even if the petitioners were given the opportunity of being heard. What is important to note is that the question complying with the principle of natural justice is connected with the question of prejudice. The question of prejudice is again a question of facts, which is required to be proved and there cannot be a presumption of prejudice in all cases. In the facts situation of the present case as indicated above, when there could be no alternative but to withdraw the illegal order of regularization/appointment, the petitioners cannot be held to have suffered any prejudice for not following the principle of natural justice. What is more important to note is that the impugned order was issued withdrawing the regularization in utmost promptitude, immediately after realising the illegality done. When evidently the petitioners were regularized/appointed illegally, issuance of writ striking down the order impugned, would in the present case obviously amount to perpetuate the previous illegal action. Therefore, in my considered opinion, even if there was violation of principle of natural justice, the same in the facts and circumstances of the case cannot be considered as sound reasons to interfere with the impugned order, which was made by the authority as a corrective measure, reason being that, such a course will result in restoring an illegal order of appointment/regularization. 37. Mr. Tiwari further contended placing reliance on a decision of the Apex Court in Tagin Litin Vs- State of Arunachal Pradesh & Anr. (supra), that once the appointment order is communicated and became effective the authority cannot reconsider or rescind the same. In Litin Tagin''s case, the Apex Court held as follows : - "11. It is settled law that, in order to be effective an order passed by the State or its functionaries must be communicated to the person who would be affected by that order and until the order is so communicated the said order is only provisional in character and it would be open to the concerned authority to reconsider the matter and alter or rescind the order." 38. There is however, no dispute at the bar, that the order of appointment/regularization was given effect, inasmuch as, the same were communicated, and the petitioners also joined their respective posts. In State of Punjab Vs- Jagdip Singh : Gurdhian Singh, Malvinder Singh : Rajwant Singh(supra) a five-Judge-Bench of the Supreme Court having been confronted with a similar situation, held that government is not denuded of the power to withdraw or rescind an illegal or void order. The factual matrix of the said case was that four officiating Tehsildars were confirmed as permanent Tehsildar by an authority not competent to make such order and the said order of confirmation of the officiating Tehsildars to the post of permanent Tehsildars was cancelled by the Govt. after having realized that such order of confirmation was void and the order of de-confirmation was challenged and on the facts of the said case, the Apex Court posed the question, that where the govt. itself realises that an order issued by the authority under the govt. is void, is it powerless to do anything in that matter ? Is it bound to give effect to a void order and treat the Tehsildars/persons, who have no legal right to be treated as confirmed Tehsildars ? Is it not open to the govt. to treat the confirmation as void ? Answering to the above questions, the Apex Court held in paragraph 8 & 9 as under :- "8. The question then is as to the effect of a void order of confirmation. When an order is void on the ground that the authority which made it had in power to make it cannot give rise to any legal rights, and as suggested by the learned Advocate-General, any person could have challenged the status of the respondents as Talisildars by instituting proceeding for the issue of a writ of quo warranto under Art. 226 of the Constitution. Had such proceedings been taken it would not have been possible for the respondents to justify their status as permanent Tahsildars and the High Court would have issued a writ of quo warranto depriving the respondents of their status as permanent Tahsildars. Now, where the Government itself realizes that an order made by an authority under the Government it is void, is it powerless to do anything in the matter? Now, where the Government itself realizes that an order made by an authority under the Government it is void, is it powerless to do anything in the matter? Is it bound to give effect to a void order and treat as confirmed Tahsildars/ persons who have no legal right to be treated as confirmed Tahsildars? Is it not open to the Government to treat the confirmation as void and notify the persons affected and the public in general of the fact of its having done so by issuing a notification of the kind it made on October 31, 1957? In our opinion where a Government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give he will not in law be deemed to have been validly appointed to the post or given the particular status. No doubt, the Government has used the expression "de-confirming" in its notification which may be susceptible of the meaning that it purported to undo an act which was therefore valid. We must, however, interpret the expression in the light of actual facts which led up to the notification. These. facts clearly show that the so-called confirmation by the Financial Commissioner of PEPSU was no confirmation at all and was thus invalid. In view of this, the notification of October 31, 1957 could be interpreted to mean that the Government did not accept the validity of the confirmation of the respondents and other persons who were confirmed as Tahsildars by the Financial Commissioner, PEPSU. 9. It was next contended that the respondents were in fact confirmed Tahsildars of the State of Punjab on November 1, 1956, having lien on their posts and that by virtue of the Government notification de-confirming them they have become merely officiating Tahsildars, thus having lien only on the post of naib-Tahsildars. This, it was said, amounted to a reduction in rank and further that it affected their seniority vis-a-vis other Tahsildars and prejudiced their future promotion. This, it was said, amounted to a reduction in rank and further that it affected their seniority vis-a-vis other Tahsildars and prejudiced their future promotion. Relying upon the decision of this Court in Parshotam Lal Dhingra v. Union of India,1958 SCR9 828: AIR 1958 SC 36 ), it is contended that their reduction in rank must be held to be by way of punishment and that consequently without recourse to the procedure indicated in Art. 311(2), this could not be done. On the other hand the Advocate-General, Punjab''contends that the action of the Government in issuing the notification does not operate as a punishment and that, therefore, Art. 311(2) is not attracted. We have already held that the respondents could not be validly confirmed as Tahsildars by the Financial Commissioner of PEPSU. Therefore, even though upon their allocation to the State of Punjab as from November 1, 1956, they were shown as confirmed Tahsildars, they could not in law be regarded as holding that status. Legally their status was only that of officiating Tahsildars. The notification in question in effect recognises only this as their status and cannot be said to have the effect of reducing them in rank by reason merely of correcting an earlier error. Article 311(2) does not, therefore, come into the picture at all." 39. In the present case the petitioners were appointed by way of regularization vide order dt. 1/12/17 and upon realising that the appointment/regularization was illegal, immediately the authority had withdrawn the order vide the order dt. 21/12/17. Therefore, in view of the ratio laid down by the Apex Court in State of Punjab Vs.- Jagdeep Singh (supra) the impugned order withdrawing the regularization/appointment of the petitioners was well within the competence of the govt. and does not call for any interference. 40. Mr. Tiwary also criticized the impugned order placing reliance on a decision of the Apex Court in Commissioner of Police, Bombay- Vs.- Gordhan Das Bhanji (supra), that the order impugned was not issued by the appointing authority acting independently, and as such, the impugned order was illegal. Evidently the regularization/appointment order was issued by the Director Elementary Officer. However, the impugned order withdrawing the regularization/appointment was issued by the Secretary, Education, Govt. of Arunachal Pradesh. Evidently the regularization/appointment order was issued by the Director Elementary Officer. However, the impugned order withdrawing the regularization/appointment was issued by the Secretary, Education, Govt. of Arunachal Pradesh. It is suffice to say that the Secretary Education is not an officer subordinate to the Director Elementary Education, and as such, he was competent to issue the impugned order and on factual matrix the decision of Commissioner of Police, Bombay is distinguishable. 41. It is also contended lastly by the learned counsel for the petitioners Mr. Tiwari that after the regularization/appointment order, the petitioners resigned from their earlier posts of contractual teachers and as such, the impugned order withdrawing the regularization/appointment has rendered the petitioners jobless as they have already resigned from their previous job. In this regard, the learned standing counsel for the Education Department clearly submitted, that the petitioners are still continuing as contractual teachers and they are also getting salary in terms of their appointment as contractual teachers. Therefore, the withdrawal of regularization/appointment by the impugned order shall not affect the continuation of the petitioners as contractual teachers subject to the terms and conditions of such appointment as contractual teachers under the SSA Scheme. 42. Having considered the submission of the learned counsel for both the sides and the materials on record, I am of the view ,that the appointment of the petitioners against regular vacancies of TGT and PRT in violation of the statutory rules governing the appointment was illegal and violative of Articles 14 and 16 of the Constitution, and as such, they would not be entitled to protection under Article 311 of the Constitution. Therefore, the question of violation of Article 311 of the Constitution does not arise. Accordingly, the question formulated is answered in negative and against the petitioners. 43. In view of what has been discussed hereinabove, I find no merit in this bunch of writ petitions and accordingly, all the writ petitions stand dismissed. Before parting, it is made clear that the order passed in these writ petitions shall not affect the service of the petitioners as contractual teachers and the petitioners may continue as contractual teachers subject to the terms and conditions of their appointment as contractual teachers under the SSA Scheme.