Madhya Pradesh High Court
Kusumlata Banwale vs The State Of Madhya Pradesh on 18 January, 2013
1
Writ Petition No. 21651/2012
18.1.2013
Shri B.R. Vijaywar, learned counsel for the petitioner.
Smt. Sheetal Dubey, learned counsel for respondents on
advance notice.
Heard on admission.
Order dated 1.12.2012 passed by the District Education Officer, district Balaghat is being assailed vide this petition.
Vide impugned order promotion granted to the petitioner from the post of Assistant Teacher to that of Upper Division Teacher in Grade Rs.930034800 has been undone on the ground that the petitioner was not within the zone of consideration and was wrongly given the promotion.
Initially appointed as Assistant Teacher in the Tribal Welfare Department, petitioner on the basis of mutual request was transferred from Tribal Department to the School Education Department by order dated 13.6.1990 with a clear stipulation that on transfer petitioner would be given bottom seniority at the place of transfer. The petitioner, thereafter continued to serve in the school education department. In November 2012, a departmental promotion committee was constituted for considering the promotion of Assistant Teacher to Upper Division Teacher. The petitioner though not within the zone of 2 consideration yet was considered on the basis of her seniority of the Tribal Welfare Department where she was initially appointed on 26.8.1986. Whereas, her seniority in the School Education Department was to be taken into consideration on the basis of order dated 13.6.1990, i.e. from the date of said order.
That, on the basis of recommendation of departmental promotion committee, promotion order was issued on 8.11.2012; however, within a month the mistake was detected and has been rectified by order dated 1.12.2012.
The order rectifying the mistake is being questioned on two counts; that, the petitioner having been promoted after due consideration acquired a right and the promotion order could not have been recalled without affording an opportunity of hearing; and secondly, it is urged that in the year 2006 the State Government took a policy decision vide order dated 3.1.2006 that, in case of inter departmental transfer from School Education Department to Tribal Welfare Department or vice versa the incumbents would not loose their original seniority.
In respect of second contention, it is observed from order dated 3.1.2006 (Annexure P3) that the same was confining to mutual inter departmental transfer which was in furtherance to decision taken by School Education Department vide its memo F.4427/94/202 dated 13.1.1995. Learned counsel for the petitioner fails to show from said order that it was also made 3 applicable to the Teachers who sought mutual inter departmental transfer prior to 13.1.1995.
In the case at hand since the transfer of the petitioner from Tribal Welfare Department to School Education Department was mutual with a stipulation that she will adorn the bottom seniority in the School Education Department, her claim for counting the entire seniority from initial date of appointment cannot be acceded to. The Departmental Promotion Committee while taking into consideration the seniority thus committed a mistake in considering the case of the petitioner on the basis of her original seniority since 1986 and though the petitioner was not within the zone of consideration yet she was considered and recommended for consideration. Such mistake was at the cost of other eligible employees, which could not have been allowed to perpetuate and was, therefore, rightly corrected within one month from the passing of promotion order.
Now coming to aspect of mistake. Trite it is that recruitment is an administrative function (see National Institute of Mental Health and Neurosciences v. Dr. K. Kalyan Raman and Ors. (AIR 1992 SC 1806 Paragraph 7). There exist the possibility of committing of administrative mistake. If there is a mistake the same has to be corrected (A quasijudicial or a judicial error also could be rectified by exercising the power of review).
4Question is whether such a mistake would create a vested right in favour of the person/persons who are benefited by such mistake. In the considered opinion of this Court if due to mistake some benefit is extended in favour of person/persons not eligible for such benefit there is no accrual of right .
In Union of India and another v. Narendra Singh (2008) 2 SCC 750 it is observed : "32. It is true that the mistake was of the Department and the respondent was promoted though he was not eligible and qualified. But, we cannot countenance the submission of the respondent that the mistake cannot be corrected. Mistakes are mistakes and they can always be corrected by following due process of law."
Thus no right accrues on the basis of a mistaken order and the same can be undone.
The next question is whether petitioner was entitled for hearing when apparently though not within the zone of consideration she was considered for promotion. In Principles of Statutory Interpretation : by Justice G.P. Singh : 12th Edn. 2010 learned Author observe in Chapter 5 synopsis 6 at page 461 that "Briefly stated 'natural justice' means 'fairplay in action' and requirements of natural justice depend upon the facts of each case. Therefore, in judging the validity of an order when the complaint is about noncompliance with the principles of natural justice, in cases where the attack is not on ground of bias, 5 a distinction has to be drawn between cases of 'no notice' or 'no hearing' and cases of 'no fair hearing' or 'no adequate hearing'. If the defect is of the former category, it may automatically make the order invalid but if the defeat is of the latter category, it will have to be further examined whether the defect has resulted in prejudice and failure of justice and it is only when such a conclusion is reached that the order may be declared invalid. Even in cases of 'no notice' or 'no hearing' the superior courts may in the exercise of their discretion decline to interfere by judicial review (under Article 32 or 226 as the case may be) where on admitted or undisputed facts the view taken by the impugned order is the only possible view and it would be futile to issue any writ to compel observance of natural justice. This is called the useless formality theory. For example, when the petitioner was appointed even though he was not qualified on the cut off date (last date for receipt of applications) and was ineligible to be considered for appointment, cancellation of his appointment without hearing him was not interfered with as it would have been a futile exercise."
In Aligarh Muslim University Vs.Mansoor Ali Khan (2000) 7 SCC 529, it is held:
25.The 'useless formality' theory, it must be noted, is an exception. Apart from the class of cases of "admitted or indisputable facts leading only to one conclusion"
referred to above, there has been considerable debate on 6 the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M.C. Mehta referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J. and Straughton L.J. etc. in various cases and also views expressed by leading writers like Profs. Garner, Craig, De. Smith, Wade, D.H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the Court will be prejudging the issue. Some others have said, that there is no such absolute rule and prejudice must be shown. Yet, some others have applied viamedia rules. We do not think it necessary, in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case.
26.It will be sufficient, for the purpose of the case of Mr. Mansoor Ali Khan to show that his case will fall within the exceptions stated by Chinnappa Reddy, J. in S.C. Kapoor Vs. Jagmohan, namely, that on the admitted or indisputable facts only one view is possible. In that event no prejudice can be said to have been caused to Mr. Mansoor Ali Khan though notice has not been issued.
In view of above, the action taken by the respondents in absence of any mala fides does not suffer from the vice of violation of principle of natural justice.7
Having thus considered this Court is of the opinion that no interference is warranted as the impugned order cannot be faulted with .
In the result petition fails and is hereby dismissed. No costs.
(SANJAY YADAV) JUDGE VT/