Madhya Pradesh High Court
Ramakant Tiwari vs Principal Secretary The State Of Madhya ... on 29 January, 2013
1
W.P. No.9418/2009
29.01.2013
Shri A. S. Pathak, learned counsel for the petitioner.
Smt. Sheetal Dubey, learned Government Advocate
for the respondents.
Heard.
Order passed in this writ petition shall also govern the disposal of connected writ petition 73/2010 analogously heard.
Both these writ petitions are directed against order dated 10.8.2009 whereby, the promotion given to the petitioner on the post of Upper Division Teacher by order dated 2.6.2009 has been cancelled. The reason shown in the order for cancellation being that the Assistant Teachers belonging to General category appointed prior to 2.8.1974 were only within zone of consideration. Whereas, the petitioners were having seniority of Assistant Teachers from 10.9.1974.
Initially, engaged by order dated 26.7.1974, as Assistant Teacher while undergoing Teachers training on a fixed pay of Rs.100 per month during training period and after completion of training on grade Rs.169-4-185-5-240-6-260-10-300 with a specific condition they will not get benefit of seniority, petitioner on completion of training was given the regular pay scale of Assistant Teacher from 10.9.1974. That to consider the promotion of Assistant Teacher to the post of Upper 2 Division Teacher, DPC was convened on 10.10.2008. Assistant Teacher belonging to general category appointed prior to 2.8.1974 was within zone of consideration. Petitioners though were Assistant Teachers since 10.9.1974 were considered and were promoted by order dated 2.6.2009. That on noticing the error, meeting of DPC was again convened on 7.4.2009 whereby, it was recommended to recall the erroneous order of promotion of the petitioners. The impugned order was accordingly passed. Contention of the petitioner is that before cancellation of promotion order no opportunity of hearing was afforded and that the petitioner appointees of 26.7.1974 was rightly considered for promotion was granted right accrued in favour of the petitioner.
Question which calls for consideration is whether the petitioners are entitled for grant of seniority from 26.7.1974 and whether the promotion order could be cancelled without affording any opportunity of hearing.
Regarding seniority as noticed from the appointment order 26.7.1974 that, the same was conditional and the continuation was subject to petitioner's passing the qualifying examination which the petitioners passed 10.9.1974, the date from which the seniority was granted to the petitioner on the post of Assistant Teacher. There is therefore, no error in treating the petitioner as appointees after 2.8.1974.
3Next question is whether the error could have been corrected.
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 quasi-judicial or a judicial error also could be rectified by exercising the power of review).
Question 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."
4Thus 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 non-compliance with the principles of natural justice, in cases where the attack is not on ground of bias, 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 5 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 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 6 have applied via-media 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.
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 Loretta & Das