Allahabad High Court
Vipin Kumar vs State Of U.P.Through Its Secy.Basic ... on 24 January, 2019
Author: Rajnish Kumar
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 20 Case :- SERVICE SINGLE No. - 4941 of 2010 Petitioner :- Vipin Kumar Respondent :- State Of U.P.Through Its Secy.Basic Education Lucknow & Ors Counsel for Petitioner :- Rajendra Singh Kushwaha,A.M.Tripathi Counsel for Respondent :- C.S.C.,Navendu Srivastava,P.R.Kanaujia,R.C.Tiwari,Shivam Sharma Hon'ble Rajnish Kumar,J.
Heard learned counsel for the petitioner, learned Standing Counsel for the State and Sri Shivam Sharma, learned counsel appearing on behalf of the Basic Shiksha Adhikari, District-Raebareli-respondent no.3.
The petitioner has approached this Court challenging the order dated 31.05.2010 passed by opposite party no.2 i.e. District Basic Shiksha Adhikari, District Raibareli, by means of which the selection of the petitioner and the approval granted thereon has been cancelled.
Brief facts of the case are that one post of Clerk/Class III had fallen vacant due to retirement of Sri Rajendra Prasad Agnihotri on 30.06.2008. The proceedings were initiated for appointment on the post of clerk in pursuance of letter dated 10.12.2008 issued by the Special Secretary, Government of U.P. by which approval for selection was granted. The post of clerk was advertised on 20.02.2009 and the applications were invited. In response thereof, the petitioner had also submitted his application. The interview took place on 05.07.2009. The petitioner was declared successful by the Selection Committee. After completing the necessary formalities,name of the petitioner had been sent to the District Basic Shiksha Adhikari for approval. The District Basic Shiksha Adhikari granted approval vide letter dated 14.07.2009. In pursuance thereof, the petitioner was appointed on the post of clerk in the respondent no.3 institution and thereafter he joined.
Since the petitioner was not being paid salary, he approached this Court by means of Writ Petition No. 6982 (S/S) of 2009. The said writ petition was disposed of with direction to the opposite party no.2 to look into the matter and decide the petitioner's representation in accordance with law by a reasoned and speaking order. In pursuance thereof, the case of the petitioner was considered and it was found that the petitioner is overage as he was 42 years of age and the selection of the petitioner was made without permission of the existing Management committee and its Chairman. Therefore the approval granted by means of letter dated 14.07.2009 has been cancelled by the opposite party no.2 by means of the order/letter dated 31.05.2010. Therefore, the petitioner has approached this Court.
It also appears from the record that one Sri Ajay Kumar Trivedi has been appointed on the post in question and the petitioner had filed an application for amendment/ impleadment which was allowed by means of the order dated 29.11.2011 but amendment/ impleadment has not been incorporated.
Submission of learned counsel for the petitioner is that the petitioner was appointed after due selection on the post of clerk, which had fallen vacant on account of retirement of Sri Rajendra Prasad Agnihotri, in accordance with law and his name was recommended and the approval was granted by the opposite party no.2. But the opposite party no.2 has wrongly and illegally cancelled the appointment of the petitioner without affording any opportunity to the petitioner. Therefore, the petitioner is constrained to approach this Court. It is further submitted that since no opportunity of hearing has been provided to the petitioner before cancelling the selection and approval thereon, the impugned order dated 31.05.2018 is liable to be quashed and the writ petition is liable to be allowed with direction to the opposite parties to make the payment of the arrears of salary with consequential benefits.
Sri Shivam Sharma, learned counsel for the opposite party no.3 vehemently opposed the submission of learned counsel for the petitioner and submitted that as per Rules, the age for selection on the post in question was between 18 to 40 years. As such the maximum age prescribed for a candidate was 40 years and admittedly the petitioner was more than 40 years of age at the time of selection. Therefore, he could not have been selected and the approval was granted inadvertently. Therefore after coming to know about the same it has rightly been cancelled. There is no illegality or infirmity in the impugned order. So far as the question of opportunity is concerned, learned counsel for the opposite party no.2 submitted that it will be merely a useless formality because in the present writ petition also the petitioner has not disclosed as to how he was within the prescribed age at the time of selection. A candidate who was overage at the time of selection, as per Rules, could not have been appointed. Therefore, no purpose would be served by directing the respondents to pass a fresh order after affording opportunity of hearing to the petitioner.
In response thereof, learned counsel for the petitioner submitted that if the opportunity would have been afforded, the petitioner could have explained and filed the documents. However, he could not dispute the fact that the petitioner was overage at the time of making the application against the advertisement.
I have considered the submissions of learned counsel for the parties and perused the records.
The selection process was initiated on account of creation of vacancy due to retirement of an employee on 30.06.2008, in which the petitioner was selected and his name was recommended on which the approval was granted by the opposite party no.2. In pursuance thereof, the petitioner was appointed and he had joined on the post of clerk in the opposite party no.3 institution but the petitioner was not being paid salary. Therefore, he had approached this Court by filing Writ Petition No.6982 (S/S) of 2010 which was disposed of with direction to consider the representation of the petitioner. In compliance thereof, the representation of the petitioner was considered and it was found that the petitioner was more than 40 years of age and his selection was made without permission from the then existing management committee and it's Chairman therefore the selection of the petitioner has been cancelled and the approval granted thereon vide letter dated 14.07.2009 has also been cancelled by means of the order dated 31.05.2010 .
It appears from the order dated 31.05.2010 that the petitioner was of 42 years of age and the candidates kept at serial nos. 1,2 and 3 by the Selection Committee are the son and daughters of the earlier manager. The Selection Committee was constituted without permission of the then existing Management Committee and the Chairman. The candidates were not informed timely, therefore, many candidates could not appear in the interview and no paper book in regard to the selection is available in school. While considering the same, the opposite party no.2 found that the petitioner's date of birth is 24.11.1968 and on the basis of same, the petitioner was selected despite being over age. Therefore, the selection of the petitioner and the approval granted thereon has been cancelled.
The relevant Rule 6 of the The U.P. Recognised Basic Schools (Junior High Schools) (Recruitment And Conditions Of Service Of Ministerial Staff And Group 'D' Employees) Rules, 1984 as amended vide notification dated 23.08.2013 provides the age for selection on the clerical post between 18 to 40 years and 5 years' relaxation has been provided in the maximum age limit to the candidates of the Schedule Castes and Scheduled Tribes and Other Backward Class candidates. Before amendment, the maximum age for application was between 18 to 30 years with the 5 years' relaxation to the SC/ST candidates and dependants of freedom fighters.
In view of above, a candidate could have applied who was within 18 to 40 years of age and 18 to 30 years of age before 23.08.2013 under the General Category. Admittedly, the date of birth of the petitioner is 24.11.1968 and the advertisement was issued on 18.02.2009, as such, the petitioner was over age at the time of making the application against the advertisement, therefore, he could not have been selected and appointed on the post in question in accordance with the Rules. Appointment cannot be made against law and criteria under the Rules.
The Hon'ble Supreme Court in the case of Bhupendra Nath Hazarika and another versus State of Assam and others; (2013) 2 SCC 516 has held that when there is violation of recruitment rules, the recruitment is unsustainable.
The solitary ground argued by the learned counsel for the petitioner is that no opportunity was afforded to the petitioner. Violation of principles of natural justice can be said to be made if the facts in the impugned order are not admitted or are not beyond all dispute. In the present case it is not disputed that the petitioner was overage at the time of making application against the advertisement for the post in question, therefore, even if the opportunity is afforded to the petitioner, the result will not be different.
The Hon'ble Supreme Court in the case of Ashok Kumar Sonkar versus Union of India and others; (2007) 4 SCC 54 has held as under:-
"26.This bring us to the question as to whether the principles of natural justice were required to be complied with. There cannot be any doubt whatsoever that the audi alteram partem is one of the basic pillar of natural justice which means no one should be condemned unheard. However, whenever possible the principle of natural justice should be followed. Ordinarily in a case of this nature the same should be complied with. Visitor may in a given situation issue notice to the employee who would be effected by the ultimate order that may be passed. He may not be given an oral hearing, but may be allowed to make a representation in writing.
"27.It is also, however, well-settled that it cannot be put any straight jacket formula. It may not be in a given case applied unless a prejudice is shown. It is not necessary where it would be a futile exercise.
"28.A court of law does not insist on compliance of useless formality. It will not issue any such direction where the result would remain the same, in view of the fact situation prevailing or in terms of the legal consequences. Furthermore in this case, the selection of the appellant was illegal. He was not qualified on the cut off date. Being ineligible to be considered for appointment, it would have been a futile exercise to give him an opportunity of being heard."
The Hon'ble Supreme Court in the case of Canara Bank versus V.K. Awasthy; AIR 2005 SC 2090 accepted the contention of learned counsel for the appellant that unless failure of justice is occasioned or that it would not be in public interest to do so in particular case the Court may refuse to grant relief to the concerned employee.
In view of above, since the facts are not disputed and no prejudice could be shown and admittedly the petitioner was overage at the time of selection therefore he was ineligible to be considered for appointment, as such his selection and appointment was illegal. Therefore it would be a futile exercise and useless formality to give the petitioner an opportunity of hearing and no purpose would be served by directing the authorities to take a fresh decision after affording opportunity to the petitioner.
In view of above, I do not find any error in the order passed by the opposite party no.2. The writ petition is mis-conceived and lacks merit.
The writ petition is dismissed.
No order as to costs.
Order Date :- 24.1.2019 Akanksha