Madras High Court
The Secretary, Saliar Mahajana Higher ... vs G. Subburaj And Ors. on 16 December, 2004
Equivalent citations: 2005(1)CTC8, (2005)1MLJ233, 2005 LAB. I. C. 1415, (2005) 27 ALLINDCAS 676 (MAD), (2005) 1 LAB LN 426, (2005) 1 MAD LJ 233, (2005) 2 SCT 620, (2005) 1 MAD LW 48, (2005) 2 RECCIVR 293, (2005) 1 CTC 8 (MAD)
Author: Markandey Katju
Bench: Markandey Katju
ORDER Markandey Katju, C.J.
1. This writ appeal has been filed against the impugned order of the learned single Judge dated 20.11.2003. By that order, the school management has been directed to pay salary of a regular teacher to the first respondent herein, for the period for which he worked i.e. from 11.8.1997.
2. Heard the learned counsel for the parties.
3. The facts in detail have been set out in the judgment of the learned single Judge and hence we are not repeating the same.
4. Admittedly, the first respondent had been appointed on 10.8.1997 as a Post Graduate Teacher in Commerce.
Rule 15(4)(i) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 states as follows:
"Promotion shall be made on grounds of merit and ability, seniority being considered only when merit and ability are approximately equal.
(4) Appointments to the various categories of teachers shall be made by the following methods :-
i) Promotion from among the qualified teachers in that school.
ii) If no qualified and suitable candidate is available by method (i) above, -
(a) Appointment of other persons employed in that school, provided they are fully qualified to hold the post of teachers.
(b) Appointment of teachers from any other school.
(c) Direct recruitment."
5. A perusal of the above Rule shows that appointment of outsiders can only be made if no qualified and suitable internal teacher is available. In other words, Sub-clause (ii) of Rule 15(4) will only apply when no teacher falling in the category of Sub-clause (i) of Rule 15(4) is available. It is undisputed that there were teachers available as specified in Sub-clause (i) of Rule 15(4) i.e. internal candidates. Hence the appointment of the first respondent who was an outsider was clearly illegal. It was rightly set aside by the Joint Director of School Education by order dated 17.12.2001 and that order has been rightly confirmed by the learned single Judge. Admittedly, during the period when the first respondent was working i.e. from 11.8.1997 to October 2004, he has been paid a consolidated salary of Rs. 1,050 p.m. (later enhanced to Rs. 1,250 p.m.) from the donations received by the Management. The learned single Judge has directed that the first respondent should be paid salary of a regular teacher for the period for which he had worked i.e. from 11.8.1997. We are of the opinion that this direction of the learned single Judge for payment of salary as a regular teacher for the period for which the first respondent worked, cannot be sustained. Admittedly, the first respondent was not a legally appointed teacher. He had been appointed illegally in violation of Rule 15(4) of the Rules. Hence we cannot see how he can be granted salary of a regular teacher.
6. Learned counsel for the first respondent has relied upon the observation made in paragraph 11 of the decision of the Supreme Court in Jaswant Singh v. Punjab Poultry Field Staff Association and Ors., , in which the Supreme Court observed as follows:
"... Therefore, while the appellant's promotion to the post of chick-sexer cannot be upheld, given the fact that the appellant had discharged the duties of a chick-sexer, he was at least entitled to the pay and other allowances attributable to that post during the period he carried out such duties"
7. In our opinion, the above direction of the Supreme Court cannot be treated as a precedent. It may be mentioned that every direction of the Supreme Court is not a precedent. It is only where the Supreme Court lays down a principle of law that it will amount to a precedent. Often, the Supreme Court issues directions with out laying down any principle of law, in which case, it is not a precedent. For instance, the Supreme Court often directs appointment of someone or regularization of a temporary employee or payment of salary, etc. without laying down any principle of law. This is often done on humanitarian considerations, but this will not operate as a precedent binding on the High Court. For instance if the Supreme Court directs regularisation of service of an employee who had put in 5 years' service this does not mean that all employees who had put in 5 years' service must be regularised. Hence such a direction is not a precedent.
8. In Municipal Committee, Amritsar v. Hazara Singh, , the Supreme Court observed that only a statement of law in a decision is binding.
9. In State of Punjab v. Baldev Singh, , the Supreme Court observed that everything in a decision is not a precedent.
10. In Delhi Administration v. Manoharlal, , the Supreme Court observed that a mere direction without laying down any principle of law is not a precedent.
11. In Divisional Controller, KSRTC v. Mahadeva Shetty, , the Supreme Court observed as follows:
"....The decision ordinarily is a decision on the case before the Court, while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently.....The scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation. The only thing binding as an authority upon a subsequent Judge is the principle upon which the case was decided....."
12. Hence the first respondent cannot derive any benefit from the decision of the Supreme Court in Jaswant Singh's case (supra).
13. For the reasons given above, this writ appeal is allowed and the direction in the impugned order of the learned single Judge for payment of salary of a regular teacher to the first respondent, for the period for which he worked, is set aside. No costs. Consequently, W.A.M.P.No. 7451 of 2004 for stay is closed.