Rajasthan High Court - Jaipur
Dayal Lal vs State Of Rajasthan And Others on 20 July, 2000
Equivalent citations: 2001(1)WLN90
Author: B.S. Chauhan
Bench: B.S. Chauhan
ORDER Chauhan, J.
1. The instant writ petition has been filed challenging the order of termination/cancellation of appointment dated 13.1.97 (Annex. 3).
(2). The facts and circumstances giving rise to this case are that the posts of Physical Education Teachers were advertised and the petitioner applied for the same.
The selection process was held. His name appeared in the select list and he was appointed vide order dated 11.12.96 (Annex.1). Petitioner joined the said post on 23.12.96 (Annex.2). His appointment has been cancelled vide order dated 13.1.97 (Annex.3) on the ground that he had wrongly been selected treating as Scheduled Caste candidate though petitioner belonged to Other Backward Class and when this mistake was rectified, his name could not appear amongst the successful candidates. Hence this Writ Petition.
(3). Mr. R.R. Vyas, learned counsel for the petitioner, has submitted that once the petitioner has, rightly or wrongly, been appointed in a permanent way, his services could not have been terminated without holding an inquiry. To fortify his submission, he has placed reliance upon the judgments in Shiva Ram vs. Jodhpur Central Co-operative Bank Ltd. (1) and Ramesh Kumar Sharma vs. State of Rajasthan & Ors. (2), wherein it has been held that observance of principles of natural justice is necessary even to modify an erroneous or illegal order.
(4). On the other hand, Mr. N.K. Vyas, learned counsel for the respondents, has submitted that immediately after the appointments were made, some complaints were lodged and an inquiry was held. When the entire matter was re-assessed, it was found that petitioner, who belonged to O.B.C. category, had been, by mistake, treated as a Scheduled Caste candidate. Petitioner secured 59.09% marks while the last selected candidate in the O.B.C. category had secured 68.92% marks and the last -selected General Category candidate had secured 68.96% marks and, therefore, respondents were bound to rectify the mistake and hence no illegality has been committed while passing the impugned order of cancelling the appointment of the petitioner. In such a case, it is not necessary to issue any notice or accord opportunity of hearing to the incumbent as hearing him would not serve any purpose whatsoever. In support of his submissions, learned counsel for the respondents has submitted the report (Annex.2) of the Fact Finding Committee, which makes it clear that petitioner had annexed a copy of the O.B.C. certificate alongwith his application form; however, by mistake, while preparing the result, he had been shown as a Scheduled Caste candidate at Serial No. 14. When he was placed in the list of the candidates belonging to O.B.C., he stood at Serial No. 118 though the candidates in O.B.C. category could be given appointments only upto Serial No. 19.
(5). I have considered the rival submissions.
(6). In absence of any allegation of malafide against the Member of the Fact Finding Committee and without asserting that the inquiry report is not correct, or the factum that petitioner belonged to O.B.C. category, the technical plea, taken by the petitioner, cannot be entertained. Petitioner has not filed any rejoinder-affidavit denying the contents of the reply, including the inquiry report. It is a plain and simple case of rectification of a mistake and as holding any inquiry in such a matter or issuing notice to the petitioner would not have served any purpose whatsoever rather it could have been an exercise in futility, petitioner cannot have any grievance against the impugned order.
(7). In State of U.P. vs. O.P. Gupta (3), the Hon'ble Apex Court had observed that Courts have to examine whether the non- observance of any statutory provision or principle of natural justice have resulted in deflacting the course of justice. In S.L. Kapoor vs. Jag Mohan (4), the Hon'ble Supreme Court has held that where from admitted or undisputed fact, only one conclusion is possible and under the law only one course is permissible to be adopted, the Court should not enforce the observance of principles of natural justice for the reason that it would amount to issuing a futile writ.
(8). In A.K. Kraipak vs. Union of India & Ors. (5), the Hon'ble Supreme Court observed as under:-
"The aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in the areas not covered by any law validly made. In other words, they do not supplant the law of the land but supplement it.... Whenever a complaint is made before the Court that some principles of natural justice had been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case."
(9). Therefore, whether the principles of natural justice should be applied in a given case, depends upon the facts and circumstances of that case. In case the principles have not been applied but if even after their observation result could have been the same, enforcing the observance of such principles would be a futile exercise. (Vide Khem Chand vs. Union of India (6) and Laxmi Shanker Pandey vs. Union of India & Ors. (7).
(10). Dr. J. Shashidhara Prasad vs. Governor of Karnataka & Anr. (8), the Hon'ble Supreme Court dealt with a similar case where appointment of the employee was cancelled without giving an opportunity of hearing to him on the ground that a criminal case was pending against the appointee which could not be noticed at the time of selection. The Hon'ble Court held that where the grounds, on which the action has been taken, is undeniable, "the Court will refuse to issue a writ, which will be futile even after there had been failure to observe the principles of natural justice."
(11). In Dharmarathmakara Raibahadur Arcot Ramaswamy Mudaliar Education Institution vs. Educational Appellate Tribunal & Anr. (9), the Hon'ble Supreme Court observed as under:-
"Giving of opportunity or an inquiry, of course, is a check and balance concept that no one's right be taken away without giving him/her opportunity or without inquiry in a given case or where the statute requires. But this cannot be in a case where allegation and charges are admitted and no possible defence is placed before the authority concerned."
(12). Thus, in view of the above, it can be inferred that observance of principles of natural justice is a cardinal principle which requires strict compliance by the authorities, but in a case where the facts are such which cannot be disputed, observance of said principles would not alter the result.
(13). The judgments relied upon by Mr. R.R. Vyas do not lay down the principle of universal application. In Ramesh Kumar Sharma (supra), this Court has observed as under:-
"Had some opportunity been given to the petitioner to show cause, the petitioner would have been able to convince the authorities of his entitlement.... He should have explain properly if some opportunity had been given to him to prove that the grade given to him was not given by way of any mistake but was given to him because of the reason that he deserved it."
(14). Similarly, the case of Shiva Ram (supra) was of a ban on employment by the State. Therefore, the ratio of those judgments are not applicable in the instant case for the reason that it is a case of rectification of bonafide mistake committed by the authorities which simply means a correctness of an error or removal of defect or imperfection. Rectification implies prior existence of error, mistake or defect, which, after rectification, can be made right and corrected by removal of the flaws. I am of the candid view that such rectification is not impermissible in law even without affording an opportunity of hearing. A person may be adversely affected by rectification but would not be able to canvass that rectification is not required as he has no right to insist that a mistake, occurred bonafide, must perpetuate and does not require rectification. If by bonafide mistake of the authorities petitioner has wrongly been appointed, it has adversely affected the case of the person who ought to have been appointed in accordance with law. Doing justice with the person, who had wrongly been deprived of appointment, by correcting the select list, cannot be held to be suffering from any illegality warranting interference by the Court in equity jurisdiction. However, if petitioner had not been paid for the period he had worked, he may be paid the dues.
(15). The petition is devoid of any merit and accordingly dismissed. There shall be no order as to costs.