Allahabad High Court
Atul Kumar Singh vs State Of U.P.Through Secy. on 24 February, 2020
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 21 Case :- SERVICE SINGLE No. - 343 of 1999 Petitioner :- Atul Kumar Singh Respondent :- State Of U.P.Through Secy. Counsel for Petitioner :- Kapil Deo,Abhishek Yadav,Ashwani Kumar,G L Yadav Counsel for Respondent :- Amarjeet Kaur,C.S.C,I.H.Farooqui,R.K.Katiyar,Rakesh Kumar Tiwari,Shobhit Mohan Shukla,Vikash Singh Hon'ble Saurabh Lavania,J.
Heard learned counsel for the petitioner, learned Standing Counsel Sri Gyanendra Srivastava, Sri Shobhit Mohan Shukla for respondent nos.2 and 3, Sri Vikas Singh for respondent no.4.
In the present writ petition, the following main reliefs have been sought:-
"(A) A writ, order or direction in the nature of Mandamus commanding the opposite parties to treat the petitioner having been approved by the District Basic Shiksha Adhikari, Sitapur and to allow him all benefits arising out of appointment on the post of Clerk including payment of salary etc. (B) A writ, order or direction in the nature of Mandamus commanding the Accounts Officer of District Basic Shiksha Adhikari, Sitapur to pass salary bill in respect of the petitioner without any objection treating the petitioner to have been duly approved by the District Basic Shiksha Adhikari, Sitapur.
(B)(i) Issue a writ, order or direction in the nature of Certiorari quashing the order dated 21.11.1998 passed by the opposite party no.2, B.S.A., Sitapur which is annexed as CA-1 with the counter affidavit."
After filing of the counter affidavit by the opposite party no.2, the order dated 21.11.1998 has been challenged by amending the writ petition.
By the order dated 21.11.1998, under issue, the respondent no.2 District Basic Education Officer, Sitapur, (hereinafter referred to as "BSA"), cancelled the selection process/interview wherein the petitioner was selected for the post of Clerk, the effect of which is that the BSA disapproved the appointment of the petitioner made by respondent no.4-Manager, Sri Dharwal Devi Vidya Mandir, Madhyamik Vidyalaya, Dharauli, District Sitapur, (in short "Institution") on the post of "Clerk". The main ground for cancellation of selection process/interview and disapproving the proposal of appointment of the petitioner made by the Institution on the post of Clerk is that the "'Type Test", as required under Rule 4 of the Rules of 1984 namely the U.P. Recognized Basic Schools (Junior High School) (Recruitment and Condition of Service of Ministerial Staff and Group 'D' Employees) Rules, 1984, was not held during the selection process.
Brief facts of the case are to the effect that the respondent no.4 sent the relevant documents vide letter dated 15.06.1998 to the respondent no.2-BSA. It was with regard to seeking permission to fill up the vacancy of Clerk, which came into existence on account of death of one Sri Mahesh Prasad, who was working on the post of Clerk in the Institution. Thereafter, vide letter dated 24.08.1998, BSA accorded the permission and in furtherance thereof, an advertisement dated 24.09.1998 was published in daily newspaper "Dainik Jagran" for making recruitment on the post of Clerk in the Institution. Pursuant to the the advertisement dated 24.09.1998, petitioner along with other candidates applied for the post in issue i.e. Clerk. The selection was held on 25.10.1998 by the duly constituted Selection Committee comprising of Manager, Principal and nominee of BSA. The petitioner was selected in the selection process and thereafter relevant documents including the select list was sent for approval of BSA vide letter of respondent no.4 dated 28.10.1999.
Thereafter, in absence of any response from the BSA on the select list within one month, the Committee of Management of the Institution approved recommendation of Selection Committee and appointment order dated 29.11.1998 was issued by the respondent and pursuant to the same the petitioner joined on the post of Clerk on 03.12.1998.
After considering the relevant documents, respondent no.2-BSA cancelled the selection process/interview held for selecting the candidate for the vacant post of Clerk in the Institution, the effect of which is that the BSA disapproved the appointment of the petitioner and the decision was duly communicated to the respondent no.4 vide letter dated 21.11.1998, Annexure No.1 to the Counter Affidavit dated 05.05.1991 filed on behalf of opposite party nos. 2 and 3. The letter dated 21.11.1998, as stated by the respondent no.4, was received by respondent no.4 on 06.12.1998.
The appointment of the petitioner was disapproved on the ground that during selection process 'Type Test' was not held.
For the purposes of reliefs sought in the writ petition as also assailing the order dated 21.11.1998, learned counsel for the petitioner submitted that it is unsustainable in the eye of law keeping in view the provisions of Rule 15 particularly Sub Rule 5(iii) and Rule 16 of the Rules of 1984.
Elaborating his arguments, the learned counsel for the petitioner further submitted that the Committee of Management-respondent no.4 sent the relevant documents for approval of proceedings of Selection Committee dated 25.10.1998 including the select list wherein the name of petitioner find place and he was selected Selection Committee, duly constituted, before the respondent no.2-BSA vide letter dated 28.10.1998 and on the proposal of appointment of petitioner the decision ought to have been taken by the BSA within a month from the date of receipt of the letter dated 28.10.1998, as required under Rule 15 of the Rules of of 1984, which was not taken in the said time nor any decision was communicated by BSA to respondent no.4 within the said time and in absence of any decision or communication within statutory period provided under Rule 15 of the Rules of 1984,the Committee of Management-respondent no.4, taking into consideration of provision as envisaged in Rule 15(5)(iii), issued the appointment order dated 29.11.1998 to the petitioner. Rule 15(5)(iii) provides deemed approval of recommendation made by the Selection Committee if any decision thereon is not communicated by BSA within one month from the date of receipt of paper/select list. Pursuant to the appointment order dated 29.11.1998 the petitioner joined on the post in question on 03.12.1998.
It is further submitted that the order dated 21.11.1998, whereby the appointment of petitioner was disapproved, was served in the office of respondent no.4-Committee of Management of college on 06.12.1998, is antedated and prior to service of order dated 21.11.1998 the appointment of the petitioner was made on the post in issue i.e. Clerk. Thus, keeping in view provisions as envisaged in Rule 15 and 16 of the Rules of 1984 and facts of the case including the fact that appointing authority of the petitioner is Management of the Institution the order dated 21.11.1998 is unsustainable.
Learned counsel for the petitioner further submitted that the impugned order dated 21.11.1998 passed by the respondent no.2-BSA whereby he disapproved the appointment of petitioner and cancelled the Selection Process/Interview related to appointment of petitioner on the ground that no "Type Test" was held in the selection process is also unsustainable in view of the fact that the "Type Test" was held and thereafter the Selection Committee recommended the name of the petitioner for providing appointment on the post in issue i.e. Clerk and on the basis of recommendation of the Selection Committee as also keeping in view the provisions of Rule 15 of Rules 1984 the appointment of petitioner was made by the respondent no.4 vide appointment order dated 29.11.1998. It is also stated that the respondent no.2 has no power to cancel the appointment of the petitioner, who was appointed against Group-C post, as the appointing authority of the petitioner is Committee of Management and not the respondent no.2-BSA. In this regard, reliance has been placed on paras 26(i) to 26(v) of the amended Writ Petition as also on the order dated 21.11.1998.
Lastly it is stated by the learned counsel for the petitioner that prior to passing of order dated 21.11.1998 no opportunity of hearing was given to the petitioner and as such the order dated 21.11.1998, on this ground, is liable to be interfered by this Court.
In view of aforesaid, the prayer is to allow the writ petition and quash the impugned order dated 21.11.1998.
Per contra, learned counsel for the respondent no.2-BSA, Sri Shobhit Mohan Shukla on the basis of counter affidavit submitted that the writ petition for the reliefs sought is liable to be dismissed. Elaborating his argument, it is stated that as per the Rule 4 of Rules 1984, which is applicable in the instant case and not disputed by learned counsel for the petitioner, the 'Type Test', which was necessary for providing appointment on the post in issue i.e. Clerk, was not held and accordingly selection process was dehors the Rules and as such is nullity and taking into account the same the Selection Process/Interview was cancelled. It is also stated that on the basis of vitiated selection process appointment given to petitioner is also nullity as it is settled proposition of Law that an appointment dehors the Rules is nullity.
In support of his contention to the effect that "Type Test" was not held in the selection/recruitment process, the learned counsel for the respondent no.2-BSA placed reliance on para 26 & 29 of the counter affidavit dated 19.01.2020 filed in response to the amended writ petition, which on reproduction reads as under:-
"26. That the averments made in paragraphs 26(i) to 26 (iii) of the writ petition are vehemently denied. In this regard, it may be stated that vide a letter dated 28.12.1998 bearing No.3875/98-99 the Manager of the Institution was informed in reference to the letter dated 03.12.1998 that type test was not taken in utter derogation to the Rules. True copy of letter dated 28.12.1998 is being annexed herewith as Annexure No.CA-3 to this affidavit.
29. That it would not be out of place to mention here again that after the interview held on 25.10.1998 complaints were made which received in the office of the answering opposite party no.2 on 29.10.1998. The facts of the complaints were inquired into and found to be correct inasmuch as various irregularities were committed in the interview held on 25.10.1998. In these circumstances it was quite necessary to maintain the fairness and legality in the selection and appointment to cancel the unfair and irregular selection held on 25.10.1998. Accordingly the answering opposite party no.2 vide his order dated 21.11.1998 cancelled the selection dated 25.10.1998 and intimated the opposite party no.4, but the opposite party no.4 ignoring the order of the opposite party no.2 dated 21.11.1998 issued the appointment letter dated 29.11.1998 to petitioner which is absolutely illegal and invalid. The answering opposite party no.2 again vide his letter dated 28.12.1998 (Annexure CA-3) apprised the opposite party no.4 that the appointment of the petitioner on the post of Clerk made by him is invalid. But one of the orders of the opposite party no.2 were complied with.
On the basis of the averments made in the counter affidavit dated 19.01.2020, Sri Shobhit Mohan Shukla further submitted that in response to the counter affidavit, no rejoinder affidavit has been filed and as such in view of observation made by the Division Bench of this Court in para 5 of the judgment reported in 2004 (22) LCD 1445 (Ravindra Pratap Yadav @ Mahajan Vs. State of U.P. & Ors.) the averments made in counter affidavit to amended Writ Petition filed by respondent nos.2 and 3 are liable to be treated as correct and in view of the same the admitted position is that no "Type Test" was held, which is mandatory and accordingly neither the selection process nor the appointment of petitioner is legally sustainable. The relevant part of the judgment reads as under:-
"5. Various others allegations have been made in the writ petition but in our opinion it is not necessary for us to go into same in view of the allegations in the counter-affidavit of the Nagar Nigam, Allahabad, respondent No. 4 to which no rejoinder affidavit has been filed and hence these allegations in the counter-affidavit have to be treated as correct."
On the basis of the documents annexed to the rejoinder affidavit dated 27.09.1999, Sri Shobhit Mohan Shukla, learned counsel for the respondent no.2-BSA further stated that on perusal of the same it is crystal clear that the "Type Test" was not held and only interview was held and thereafter the name of petitioner was recommended for providing appointment on the post in issue i.e. Clerk.
It is stated that in absence of type test, which is mandatory as per Rule 4 of Rules of 1984 the recommendation for appointment of petitioner on the post in issue i.e. Clerk in the office of respondent no.4 is void ab initio and nullity and being so appointment of petitioner is also nullity and keeping in view same as well as the principle laid down by the Hon'ble Apex Court and by this Court to the effect that issuance of a writ or quashing/setting aside of an order if revives another illegal order then in that eventuality the writ court should not interfere in the matter on any ground including the ground of failure to follow the principle of Natural Justice. The writ petition for relief sought is liable to be dismissed.
In regard to the decision taken by the respondent no.2-BSA dated 21.11.1998 Sri Shobhit Mohan Shukla submitted that the decision was taken, within time as prescribed under Rule 15 of Rules 1984 and accordingly the appointment of the petitioner is unsustainable in the eye of law and in view of the same, the petitioner is not entitled to any benefit of Rule 15(5)(iii) of the Rules 1984.
On the basis of the affidavits on record, the learned counsel for Committee of Management-respondent no.4, Sri Vikas Singh, stated that the petitioner was a trained "Typist" from Khanna Commercial College, Alambagh, Lucknow, U.P. which is a recognized institute, as appears from the record, and taking into account the said fact, it appears that the appointment of the petitioner was made by the respondent no.4.
On query made to the learned counsel for the respondent no.4, Sri Vikas Singh, specifically on the issue of "Type Test", it has been stated that it appears that "Type Test" was not held and all the candidates who were before the Selection Committee participated in the selection process and they were interviewed and thereafter the select list was prepared. It is further stated that in the short counter affidavit dated 22.09.1999 as also in the detailed counter affidavit dated 19.12.2010 filed by the Committee of Management-respondent no.4 it has not been specifically stated that the "Type Test" was held.
Heard learned counsel for the parties and perused the record.
Admitted facts of the present case, as appears from the pleadings and documents on record, are to the effect that the selection process was initiated for making recruitment/ appointment on the post of Clerk, which fell vacant on account of death of incumbent of the post, on 24.09.1998 (the date of advertisement). The advertisement was published after due permission of BSA vide letter dated 24.08.1998. The advertisement was published in daily newspaper "Dainik Jagran". In response to the advertisement 26 candidates applied for one post of Clerk in the Institution and 17 appeared in the Selection Process. The duly constituted Selection Committee considered the candidature of 17 candidates and being found suitable, the name of the petitioner was recommended by the Selection Committee for providing appointment on the post in issue i.e. Clerk.
The relevant records for the purposes of giving approval to the recommendation of Selection Committee and providing appointment to the petitioner was sent by the respondent no.4 vide letter dated 28.10.1998. The letter dated 28.10.1998 sent by Committee of Management-respondent no.4 was duly replied by respondent no.2-BSA vide letter dated 21.11.1998. Vide letter dated 21.11.1998 the selection process which includes recommendation of Selection Committee for providing appointment to the petitioner on the post of Clerk was cancelled on the ground to the effect that the "Type Test" was not held during selection process.
On the issue of "Type Test" in the Writ Petition it has not been stated that "Type Test" was held on 25.10.1998, the date on which selection was held. It appears further from the contents of the para 7 of the short counter affidavit filed by respondent no.4-Committee of Management dated 22.09.1999, which on reproduction reads as under, that no "Type Test" was held for the purpose of appointment on the post in issue i.e. Clerk.
"7. That since the petitioner was a trained typist from Khanna Commercial College which is recognized institution from the State Government and the petitioner was having requisite typing speed which was also confirmed and the petitioner was selected as per provisions of the above said rule, 1984 and a copy of the typing certificate is being filed herewith as Annexure No.-C-3 to this counter affidavit."
It is also evident from the documents annexed as Annexure No.R-1 to the rejoinder affidavit dated 27.09.1999 and the averments made therein as also from Annexure No.7 to the writ petition that no "Type Test" was held prior to making recommendation for providing appointment to the petitioner by the Selection Committee on the post of Clerk in the Institution.
In view of the aforesaid as well as keeping in view specific averments made in paras 26 and 29 of the counter affidavit dated 19.01.2020, quoted above, not refuted by filing the rejoinder affidavit and in view of the law laid down by this Court in the case of Ravindra Pratap Yadav (Supra) the same are liable to be treated as correct, this Court is of the view that "Type Test" was not held prior to making recommendation for providing appointment to the petitioner on the post in issue i.e. Clerk by the Selection Committee.
The Rule 4 of Rules 1984, which is quoted below, specifically provides the Minimum Qualification for the post of Clerk. The Rules of 1984 are admittedly applicable in the Institution. According to Rule 4 of Rules of 1984 a person having certificate of Intermediate Examination of the Board of High School and Intermediate Examination, Uttar Pradesh, or equivalent examination (with Hindi) and a minimum speed of 30 words per minute in Hindi Type Writing can be appointed on the post in issue i.e. Group -C post/post of Clerk.
Rule 4 of Rules of 1984 reads as under:-
"4. Minimum Qualification:-(1) The minimum qualifications for the post of clerk shall be Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh, or equivalent examination (with Hindi) and a minimum speed of 30 words per minute in Hindi typewriting.
(2) The minimum qualification for the post of a Group 'D' employee shall be Class V from an institution recognized by the Government of Uttar Pradesh or equivalent examination with Hindi."
Admittedly 17 persons appeared before the Selection Committee and to select the best amongst them as also to ascertain that a candidate is having minimum speed of 30 words per minute in Hindi Typewriting the "Type Test" was required, which as per record was not held. In addition, taking into account the Rule 4 of Rules of 1984, this Court is of the view that for fair and impartial selection the "Type Test" was/is mandatory and not holding the "Type Test" would vitiate the selection process.
At this stage, it is stated by the learned counsel for the petitioner that the side opposite (respondent nos.1 to 4) have failed to prove the fact that the "Type Test" was not held on 25.10.1998 and accordingly benefits should be given to the petitioner.
In regard to the aforesaid, it is relevant to point out that it is settled principle of law that plaintiff has to prove his own case and he can not succeed on the weakness of defense and the petitioner herein has failed to prove the fact, on the basis of pleadings and documents on record particularly documents annexed as Annexure R-1 to the rejoinder affidavit dated 27.09.1999 and Annexure No.7 to the writ petition, that the "Type Test" in selection process was held and thereafter the Selection Committee recommended the name of petitioner.
In view of aforesaid, this Court is of the view that the recommendation of Selection Committee and appointment of the petitioner made by the respondent no.4-Committee of Management vide appointment order dated 29.11.1998, in absence of "Type Test", both were/are de-hors the Rules and being so are nullity and void ab initio and accordingly the petitioner has no right to hold the post nor he is entitled to continue on the post nor he is entitled to salary from the State-Exchequer.
The Supreme Court in Yogesh Kumar vs. Government of NCT Delhi and others (2003) 3 SCC 548 held that appointment has to be strictly as per statutory rules. A person not possessing requisite qualification and appointment made dehors of the rules without following procedure, the appointment is illegal since inception, nonest, nullity and no legal right to continue or right over the post and length of continuous service of such illegal appointment will not help the petitioner.
Vide Mohd. Sartaj vs. State of U.P. (2006) 2 SCC 315, Sushil Kumar Dwivedi vs. Basic Shiksha Adhikari, Banda (DB) (2003) 2 UPLBEC 1216, in Mamta Mohanti case (supra) and Mohd. Sartaj case (Supra), Committee of Management vs. State of U.P. (DB) (2009) 2 ALJ 528 it was held that in case, approval is granted by the authority to a person who lacks qualification then it is a serious lapse on the part of the authority, justifying suitable disciplinary action against such careless and negligent authorities. Illegal appointments cannot be regularized. There is a distinction between irregularity and illegality. Irregularity can be regularized but not illegality.
In State of Karnataka vs. KGSD Canteen Employees Welfare Ass. (2006) 1 SCC 567, Mamta Mohanty case (Supra) and Sushil Kumar Dwivedi case (Supra) it was held that any action of an officer or authority of the State which is contrary to law, as in the facts of the present case approval granted by the B.S.A. in spite of the fact that the petitioners were not qualified and there was no sanctioned posts, such approval cannot bind the State to pay the salary from the State Exchequer (refer; State of Manipur vs. Y Token Singh (2007) 5 SCC 65).
In Pramod Kumar vs. U.P. Secondary Education Services Commission and others (2008) 7 SCC 153 Supreme Court held mandamus can be sought when there is a legal right and corresponding duty upon the State Agency. Petitioners who did not possess valid degree held had no right to appointment and, therefore, could not seek mandamus.
In Regional Manager, Central Bank of India vs. Madhulika Guruprasad Dahir and others (2008) 13 SCC 170 Supreme Court held that a person appointed against a reserved post for S.T. against forged social status certificate cannot upon termination claim to be retained merely on the ground that he has worked for over 20 years.
With regard to the other pleas taken by the learned counsel for the petitioner for interfering in the matter and allowing the writ petition, which are to the effect that opportunity of hearing was not given to the petitioner prior to passing of order dated 21.11.1998 and the respondent no.2-BSA has no power to cancel the appointment of petitioner, are concerned this Court is of the view that on the said grounds the interference in the matter is not required. It is in view of the principle to the effect that issuance of a writ or quashing/setting aside of an order if revives another pernicious or wrong or illegal order then in that eventuality the writ court should not interfere in the matter and should refuse to exercise its discretionary power conferred upon it under Article 226 of the Constitution of India. The writ court should not quash the order if it revives a wrong or illegal order. Vide : Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828; Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar, (1999) 8 SCC 16: AIR 1999 SC 3609: 1999 AIR SCW 3623; M.C. Mehta v. Union of India, (1999) 6 SCC 237: AIR 1999 SC 2583; Mallikarjuna Mudhagal Nagappa v. State of Karnataka, (2000) 7 SCC 238: AIR 2000 SC 2976: 2000 AIR SCW 3289; and Chandra Singh v. State of Rajasthan, (2003) 6 SCC 545: AIR 2003 SC 2889: 2003 AIR SCW 3518 and Raj Kumar Soni v. State of U.P., (2007) 10 SCC 635.
By the Order in issue dated 21.11.1998 the respondent no.2-BSA has cancelled/disapproved the selection process/interview wherein the petitioner was selected for the post of Clerk in the Institution on the ground that "Type Test" was not held during selection process. As the "Type Test" was not held, which was required as per Rule 4 of the Rules of 1984, quoted above, this Court is of the view that the recommendation of Selection Committee in favour of petitioner itself is nullity being dehors the Rules and being so the consequent appointment of the petitioner vide order dated 29.11.1998 on the post of Clerk made by Committee of Management (Manager)-respondent no.4 is also nullity and therefore taking into consideration the above stated legal proposition the cancellation thereof can not be interfered on the ground that no opportunity of hearing was given to the petitioner prior to passing of order dated 21.11.1998 as also on the ground that BSA, being not the appointing authority, has no power to cancel the appointment of petitioner.
In the judgment dated 14.05.2019 passed in the case of Sachchida Nand Chaturvedi Vs. State of U.P. reported in 2019(6) ADJ 189, this Court, on being found that the promotion order is nullity, decline to interfere in the matter. The relevant portion of the judgment reads as under:-
"28. Now both the aspects, whether an appointment made by a person holding charge of the Office only can be valid and whether if such appointment is illegal then principles of natural justice will apply or not, has been considered in a recent decision of Supreme Court in Union of India and another v. Raghuwar Pal Singh, MANU/SC/0240/2018 : (2018) 15 SCC 463, wherein it was held that a person looking after charge/duties of Office, could not discharge statutory power of appointment to Group 'C' or Group 'D' post. In fact even the question of applicability of principles of natural justice in such case where appointment has not been made by Competent Authority in accordance with Rules, which requires prior approval, has been considered in Raghuwar Pal Singh (supra), and it has been held that appointment de hors the Rules is nullity, hence, even principles of natural justice are not applicable in such cases. Paras 16 and 17 of judgment reads as under:
"16. We shall now consider the efficacy of the reason so recorded in the office order. The recruitment procedure in relation to the post of Veterinary Compounder is governed by the statutory Rules titled 'Central Cattle Breeding Farms (Class III and Class IV posts) Recruitment Rules, 1969, as amended from time to time and including the executive instructions issued in that behalf. As per the stated dispensation for such recruitment, the appointment letter could be issued only by an authorised officer and after grant of approval by the competent authority. Nowhere in the Original Application filed by the Respondent, it has been asserted that such prior approval is not the quintessence for issuing a letter of appointment.
17. For taking this contention forward, we may assume, for the time being, that the then Director Incharge H.S. Rathore, Agriculture Officer had the authority to issue a letter of appointment. Nevertheless, he could do so only upon obtaining prior written approval of the competent authority. No case has been made out in the Original Application that due approval was granted by the competent authority before issue of the letter of appointment to the Respondent. Thus, it is indisputable that no prior approval of the competent authority was given for the appointment of the Respondent. In such a case, the next logical issue that arises for consideration is: whether the appointment letter issued to the Respondent, would be a case of nullity or a mere irregularity? If it is a case of nullity, affording opportunity to the incumbent would be a mere formality and non grant of opportunity may not vitiate the final decision of termination of his services. The Tribunal has rightly held that in absence of prior approval of the competent authority, the Director Incharge could not have hastened issuance of the appointment letter. The act of commission and omission of the then Director Incharge would, therefore, suffer from the vice of lack of authority and nullity in law."
29. Court also relied on its earlier judgment in Kendriya Vidyalaya Sangathan and others v. Ajay Kumar Das and others, MANU/SC/0385/2002 : 2002 (4) SCC 503, wherein it had observed that if appointment letters are nullity, having been issued by an officer who did not wield authority to do so, there was no question of observance of principles of natural justice even though affected party was not before Court.
30. In Union of India and another v. Raghuwar Pal Singh (supra), Court clearly held that letter of appointment was issued by Director Incharge, without prior approval of Competent Authority is a nullity and that being so principles of natural justice are not attracted. It has also held that it was not an essential requirement and would have been an exercise in futility.
31. Since, in the present case also, promotion has been made under Rules 2001, not applicable in this case, it was a nullity and therefore, cancellation thereof cannot be interfered on the ground that no opportunity was given, since principles of natural justice are not attracted in the case in hand.
32. There are some other principles applicable in a writ jurisdiction which are attracted in the present case and go against petitioner. An order is not to be interfered in violation of principles of natural justice if in the given facts and circumstances of the case, only view possible is that order which is affected by impugned order, was patently illegal.
33. It is well established that principles of natural justice cannot be put in a straight jacket formula and there are certain circumstances particularly when the facts are not in dispute wherein non compliance of principles of natural justice will not vitiate administrative or quasi judicial order and/or High Court in exercise of writ jurisdiction may not interfere. One such exception to the application of principles of natural justice is where only one conclusion is possible. In the present case, it is evident from record that very promotion of petitioner as Junior Accounts Clerk was illegal, hence this Court, while exercising power under Article 226 of the Constitution is not bound to interfere. Observance of principles of natural justice is not an empty formality. Where only one conclusion is possible, this Court can decline to interfere in exercise of power under Article 226 of the Constitution.
34. In Karnataka State Road Transport Corporation and another v. S.G. Kotturappa, MANU/SC/0177/2005 : AIR 2005 SC 1933, Court held:
"The question as to what extent, principles of natural justice are required to be complied with would depend upon the fact situation obtaining in each case. The principles of natural justice cannot be applied in vacuum. They cannot be put in any strait-jacket formula. The principles of natural justice are furthermore not required to be complied with when it will lead to an empty formality. What is needed for the employer in a case of this nature is to apply the objective criteria for arriving at the subjective satisfaction. If the criterias required for arriving at an objective satisfaction stands fulfilled, the principles of natural justice may not have to be complied with...".
35. In Punjab National Bank and others v. Manjeet Singh and another, MANU/SC/8807/2006 : AIR 2007 SC 262, Court said:
"The principles of natural justice were also not required to be complied with as the same would have been an empty formality. The Court will not insist on compliance with the principles of natural justice in view of the binding nature of the award. Their application would be limited to a situation where the factual position or legal implication arising thereunder is disputed and not where it is not in dispute or cannot be disputed. If only one conclusion is possible, a writ would not issue only because there was a violation of the principle of natural justice."
(emphasis added)
36. In P.D. Agrawal v. State Bank of India and others, MANU/SC/8122/2006 : (2006) 8 SCC 776, it has been observed:
"The Principles of natural justice cannot be put in a straight jacket formula. It must be seen in circumstantial flexibility. It has separate facets."
37. In Writ Petition No. 31995 of 2000 (Ganesh Singh v. District Magistrate and others), decided on 29.4.2011, Court has held as under:
"16. The principles of natural justice cannot be kept in a straight jacket formula. They apply in the facts and circumstances of each and every case. If the appointment of petitioner would have been made in accordance with law or at least some prima facie material would have to be placed to show what has been stated by respondents is not ex facie correct, then the matter may have required some further investigation. In the case in hand no such thing has been placed on record by petitioner or even pleadings to show that procedure prescribed under 1974 Rules was observed and thereafter petitioner was appointed. The appointment, therefore, is ex facie illegal and in the teeth of the Rules.
17. In the circumstances, this Court under Article 226 of the Constitution do not find it a fit case warranting interference. The writ petition, therefore, lacks merit and is dismissed."
(emphasis added)
38. In Writ Petition No. 38893 of 2008 (Brijendra Singh v. State of U.P and others) decided on 18.5.2011 this Court has taken somewhat similar view as under:
"... it is well-settled that if only one conclusion is possible, the Court would not interfere in the impugned order...."
(emphasis added)
39. Another principle well established when a Court is required to exercise its extraordinary jurisdiction under Article 226 of Constitution, it would be justified in declining to interfere in an order which has been passed in violation of principles of natural justice, if setting aside of such an order would result in revival of another illegal order. In other words, Court will not set aside an order merely on the ground that opportunity was not given or principles of natural justice were not followed, if as a result of setting aside such an order would revive in favour of petitioner concerned, another illegal order for the reason that this Court will not perpetuate illegality and no person can be allowed to enjoy benefit of an illegal order, by taking recourse to Institution of justice under Article 226 of Constitution.
40. A Division Bench of this Court (of which 1 was also a member) in Amarendra Singh v. State of U.P., MANU/UP/1480/2007 : 2008(1) ADJ 397 (DB) : 2008(1) ESC 734 has held that since the petitioner has invoked extraordinary jurisdiction under Article 226 of the Constitution, the remedy is not as a matter of right and this Court is not bound to interfere even if technically or otherwise the order impugned is found to be illegal or erroneous. There are certain exceptions which are well recognised and one of such exceptions is where setting aside of an order will result in revival of another illegal order.
41. In Champalal Binani v. The Commissioner of Income Tax west Bengal and others, MANU/SC/0170/1969 : AIR 1970 SC 645, Court while dealing with jurisdiction of the Court with respect to issuance of writ of certiorari held that "a writ of certiorari is discretionary, it is not issued merely because it is lawful to do so."
42. In Durga Prasad v. The Chief Controller of Imports and Exports and others, MANU/SC/0004/1968 : AIR 1970 SC 769 (para 7) and in Bombay Municipal Corporation for Greater Bombay v. Advance Builders (India) Pvt. Ltd., MANU/SC/0053/1971 : AIR 1972 SC 793 (para 13), it was held that writ jurisdiction is discretionary and the Court is not bound to interfere even if there is error of law.
43. It would be appropriate to refer the view expressed in Municipal Board, Pratabgarh and another v. Mahendra Singh Chawla and MANU/SC/0190/1982 : 1982(3) SCC 331, which reads as under:
"...this Court is not bound to tilt at every approach found not in consonance or conformity with law. The interference may have a deleterious effect on the parties involved in the dispute. Laws cannot be interpreted and enforced divorced from their effect on human beings for whom the laws are meant. Undoubtedly, rule of law must prevail but as is often said, 'rule of law must run akin to rule of life. And life of law is not logic but experience'. By pointing out the error which according to us crept into the High Court's judgment the legal position is restored and the rule of law has been ensured its pristine glory. Having performed that duty under Article 136, it is obligatory on this Court to take the matter to its logical end so that while the law will affirm its element of certainty, the equity may stand massacred. There comes in the element of discretion which this Court enjoys in exercise of its extraordinary jurisdiction under Article 136."
44. What has been observed by the Apex Court with reference to Article 136 of the Constitutions, in my view would equally be applicable when this Court is required to exercise its equitable extraordinary jurisdiction under Article 226 of the Constitution of India. In a given case, having set legal position straight, still this Court may decline to interfere where the equity justifies the same or where the facts and circumstances warrant that discretionary relief should be declined. Where interference with an illegal order may result in revival lot another illegal order, the Court would be justified in refusing to interfere.
45. In Employees' State Insurance Corporation and others v. Jardine Henderson Staff Association and others, MANU/SC/3424/2006 : AIR 2006 SC 2767, Court held that relief in a writ of certiorari can be denied inter alia when it would be opposed to public policy or in a case where quashing of an illegal order would revive another illegal order. In para 62 of the judgment Court held that High Court under Article 226 and Supreme Court under Article 136 read with 142 of the Constitution has the power to mould relief in the facts of the case.
46. In Ramnik Lal N. Bhutta and another v. State of Maharashtra, MANU/SC/0279/1997 : AIR 1997 SC 1236, Court observed:
"The power under Article 226 is discretionary. It will be exercised only in furtherance of interest of justice and not merely on the making out of a legal point."
47. In State of H.P. v. Raja Mahendra Pal and others, MANU/SC/0227/1999 : (1999) 4 SCC 43, in para 6 of the judgment, Court held:
"...It is true that the powers conferred upon the High Court under Article 226 of the Constitution are necessary in nature which can be invoked for the enforcement of any fundamental right or legal right but not for mere contractual right arising out of an agreement particularly in view of the existence of an efficacious alternative remedy. The constitutional Court should insist upon the party to avail of the same instead of invoking of extraordinary writ jurisdiction of this Court. This does not however debar the Court from granting the appropriate relief to a citizen under peculiar and special facts notwithstanding the existence of an alternative efficacious remedy. The existence of special circumstances are required to be noticed before issuance of the direction by the High Court while invoking the jurisdiction under the said Article...."
48. Similarly, in Director of Settlement V.M.R Apparao, MANU/SC/0219/2002 : (2002) SCC 638 in para 17 Court held that the power vested in High Court under Article 226 of the Constitution is discretionary.
49. Following the principle laid down in the aforesaid decisions, this Court has reiterated the same view in a number of cases, including R.K. Shukla v. Chairman Town Area Committee and another (Writ A No. 19889 of 1991 decided on 17.1.2013). Suffice it to say that this Court is not bound to interfere even if technically or otherwise, order impugned, is found to be illegal or erroneous.
50. In Amrendra Singh v. State of U.P. and others, MANU/UP/1480/2007 : 2008(1) ADJ 397 (DB), this Court has declined to interfere in intra Court appeal with an order of Single Judge even though legally it was not sustainable since substantial justice had been done therein and setting aside order may have resulted in revival of another pernicious order."
The settled principles considered by this Court in the judgment passed in the case of Sachchida Nand Chaturvedi (supra), in my view, are fully applicable in the present case.
For the reasons aforesaid, this Court is of the view that order dated 21.11.1998 is not liable to be interfered in exercise of power under Article 226 of the Constitution of India and the petitioner is not entitled to the reliefs sought in the present writ petition. Writ petition lacks merit and it is dismissed. No order as to costs.
Order Date :- 24.2.2020 Vinay/-