Himachal Pradesh High Court
Sh. Mukand Lal S/O Sh. Jai Nand vs State Of H.P. & Others on 15 December, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 15th DAY OF DECEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
Between:-
r to
CIVIL WRIT PETITION No.5959 of 2021.
SH. MUKAND LAL S/O SH. JAI NAND,
R/O VILLAGE AND POST OFFICE
TODSA, TEHSIL CHIRGAON,
DISTT. SHIMLA H.P.
......PETITIONER.
(BY SH. V.D. KHIDTTA, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH THROUGH
ITS PRINCIPAL SECRETARY (EDUCATION)
TO THE GOVT. OF H.P., SHIMLA-2.
2. THE DIRECTOR OF ELEMENTARY EDUCATION
HIMACHAL PRADESH, SHIMLA-1.
3. THE DY. DIRECTOR OF ELEMENTARY
EDUCATION, DISTRICT SHIMLA,
SHIMLA-4.
4. THE HEADMASTER, GOVT. HIGH SCHOOL
TODSA, TEHSIL CHIRGAON, DISTRICT
SHIMLA, H.P.
......RESPONDENTS.
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2
(SH. ASHOK SHARMA, ADVOCATE GENERAL
WITH SH.RAJINDER DOGRA,
.
SENIOR ADDITIONAL ADVOCATE GENERAL,
SH. VINOD THAKUR,
SH. SHIV PAL MANHANS,
ADDITIONAL ADVOCATE GENERALS
AND SH. BHUPINDER THAKUR,
DEPUTY ADVOCATE GENERAL,
FOR RESPONDENTS-1 TO 4)
This petition coming on for admission after
notice this day, Hon'ble Mr. Justice Tarlok Singh
Chauhan, passed the following:
ORDER
As per the case set-up by the petitioner, he passed his matriculation examination from H.P. Board of School Education, Dharamshala, in the year 1988 and thereafter passed Hindi (Prabhakar) from H.P. University in the year 1989. Since, the post of Language Teacher was lying vacant in Government High School, Todsa, Tehsil Chirgaon, District Shimla, H.P., therefore, respondent No.3 i.e. Deputy Director of Elementary Education accorded the requisite permission to the Headmaster of the School to fill-
up the post of Language Teacher by the Parents Teacher Association (PTA) under Grant-in-Aid to Parents Teachers Association Rules, 2006.
::: Downloaded on - 31/01/2022 23:26:32 :::CIS 32. The petitioner was thereafter ordered to be appointed by the Pradhan, PTA, Government High School, .
Todsa on 30.09.2006. It is claimed that the selection of the petitioner was on the basis of the copy of resolution that came to be passed on 25.10.2006 which reads as under:-
"Today on 25th October 2006 from 11.00 am to 1.00 PM Parents Teacher Association meeting was held under the chairmanship of Janak Raj Sharma and Officiating Headmaster, in which after deliberation following resolution was passed.
Resolution subject No.6: Under the chairmanship of Janak Raj Sharma deliberation with regard to filling up of posts as per the order of the Deputy Director was held.
Resolution allowed: with regard to above subject, parents teacher association held the deliberation with regard to filling up of various posts in the school like post of Language Teacher.
Because matter with regard to filling up of various posts in school is pending before the government, till some decision is taken, the Parents Teacher Association has taken the decision to fill up the post of Language Teacher only with the condition that said teacher selected has to give affidavit duly attested by the Tehsildar/Notary to the effect that he will be teaching the students without salary till further order from the higher authorities.
In the end all the members have unanimously resolved and passed resolution with regard to ::: Downloaded on - 31/01/2022 23:26:32 :::CIS 4 appointment of one Sh. Mukand Lal S/o Sh. Jai Nand R/o Village Todsa. The appointed candidate is also .
directed to give his joining on 01.11.2006 to the officiating Headmaster alongwith all documents. After completing all conditions, matter be forwarded to the office of Deputy Director (Secondary).
Lastly meeting was concluded after the vote of thanks passed by Pradhan.
Stamped and signed Pradhan PTA Govt. High School, Todsa, Distt. Shimla."
3. The Government vide order dated 05.08.2020 had decided to regularize the services of PTA teachers both taken over on contract basis and the left out with immediate effect. However, the services of the petitioner were not taken over constraining the petitioner to file CWP No. 5120 of 2020 which was disposed of by this Court vide order dated 22.04.2021 with a direction to the respondents to consider the case of the petitioner for regularization.
4. In compliance to the aforesaid direction, the necessary documents of the petitioner were requisitioned and thereafter the claim of the petitioner was rejected vide order dated 04.08.2020 (Annexure P-13) and the text thereof reads as under:-
::: Downloaded on - 31/01/2022 23:26:32 :::CIS 5"In the matter of CWP No. 5120 of 2020- titled as Mukand Lal V/s State of H.P. & others.
.
That the applicant filed his application in the Hon'ble High Court of H.P. seeking benefit of regularization as Language Teacher. The Hon'ble High Curt of H.P. decided the above mentioned CWP on 22/04/2021. The operative part of the same is as under:-
"Accordingly, this petition is disposed of with the direction to respondent No. 3 to decide the issue pertaining to the petitioner pending before it on or before 30 th June, 2021. In case any clarification/ document/ information in this regard is required by the said respondent from the petitioner, then by way of a written communication, the petitioner shall be intimated to hand over the same on or before 15 th May, 2021. In case no such communication is issued from the office of respondent No. 3 to the petitioner on or before 10th May, 2021, then it will be deemed that the said respondent requires no clarification/document/information from the petitioner. It is clarified that no extension shall be granted to respondent No. 3 post the date fixed by the Court for the purpose of deciding the issue. Miscellaneous applications, if any, also stand disposed of.
The above orders were received in this office of respondent No.3 on 15th July, 2021, from the office of respondent No.2. From the perusal of record it is observed that the issue regarding regularization of ::: Downloaded on - 31/01/2022 23:26:32 :::CIS 6 petitioner was already decided on the file on 28 th September, 2020 with the remarks "condition of .
minimum eligibility is not fulfilling, so regularization cannot be done."
However, in compliance to direction of Hon'ble High the petitioner was again requested to furnish the complete certificate related his qualification vide letter dated 19/07/2021 i.e. immediately after the receipt of the copy of orders.
The certificates as submitted by the petitioner were again placed before the committee constituted for the purpose and the committee members found the petitioner ineligible to be regularized as Language Teacher as per R&P Rules for the post.
Therefore, in view of above facts the petitioner cannot be considered for regularization and hence his plea made in the petition is rejected.
The matter is decided accordingly."
5. This was followed by another order dated 24.08.2021 whereby it was intimated that on the basis of the documents sent by the school it was found that the petitioner did not fulfill the educational qualification as per the Recruitment and Promotion Rules and has also not improved his qualification as per the instructions issued by the department.
::: Downloaded on - 31/01/2022 23:26:32 :::CIS 76. Therefore, looking into the gravity of the matter, respondent No.4 was directed to take action against the .
petitioner, who had not fulfilled his educational qualification.
7. In compliance to the instructions, the services of the petitioner came to be terminated and aggrieved thereby, the petitioner has filed the instant petition for grant of the following substantive reliefs:-
" (i) That the impugned orders dated
24.08.2021(Annexure P-16) and order dated
04.09.2021(Annexure P-17) may kindly be quashed and set aside.
(ii) That writ in the nature of mandamus may kindly be issued directing the respondents to allow the petitioner to work as Language Teacher in Govt.
High School Todsa and pay all consequential benefits."
8. We have heard the learned counsel for the parties and gone through the material placed on record.
9. It is not in dispute that the respondents had decided to regularize the services of the teachers appointed on PTA basis provided they fulfilled the minimum eligibility criteria as per the Recruitment and Promotion Rules at the time of their initial appointment.
::: Downloaded on - 31/01/2022 23:26:32 :::CIS 810. It is also not in dispute that the PTA Teachers, who did not fulfill minimum eligibility criteria as per the .
Recruitment and Promotion Rules on the date of initial engagement by the PTAs but had acquired the requisite educational qualification after the initial engagement were to be considered only if they fulfilled the minimum eligibility criteria as per the current Recruitment and Promotion Rules in vogue on the date of regularization with immediate effect.
11. It is further not in dispute that in terms of the letter issued by the Additional Chief Secretary (Education) to the Government of Himachal Pradesh on 18.08.2017, it was provided that the teachers whose services have been taken over or whose services have not been taken over on contract basis in the State were granted five years instead of two years i.e. till 16.08.2021 for acquiring minimum educational qualification as per the Recruitment and Promotion Rules for the respective post(s) failing which their services will be terminated.
12. Lastly, it is not in dispute that the petitioner despite this letter did not acquire minimum eligibility ::: Downloaded on - 31/01/2022 23:26:32 :::CIS 9 criteria provided under the Rules and accordingly his services were terminated.
.
13. It is vehemently argued by Shri V.D.Khidtta, learned counsel for the petitioner that the action of the respondent cannot sustain as the same was in total violation of the principles of natural justice.
14. However, we find no merit in this contention as the candidate, who lacks the requisite qualification has no right to hold the post and, therefore, no hearing is required before the cancellation of his appointment.
15. In coming to such conclusion, we are duly supported by the judgment rendered by the Hon'ble Supreme Court in Mohd. Sartaj and another vs. State of U.P. and others (2006) 2 SCC 315, wherein the Hon'ble Supreme Court considered the question of non-issuance of show-cause notice/prior notice or giving opportunity of being heard before cancelling the appointment where the candidate appointed was not eligible and also that the appellants therein did not hold any right over the post because they lacked requisite qualification. Therefore, no hearing was required before cancellation of his ::: Downloaded on - 31/01/2022 23:26:32 :::CIS 10 appointment. It shall be apt to quote para-6 of the judgment which reads as under:-
.
"6. Regarding the non-compliance of natural justice, the Court opined that in the present case there was no procedural illegality and relied upon the State of M.P. vs. Shyama Pardhi, 1996 (7) S.C.C. 118 where it was observed that question of violation of natural justice did not arise in a case where the prerequisite minimum qualification for the appointment was not fulfilled and resulted in the cancellation of the appointment. The Court also opined that the action of cancellation was taken swiftly within a short interval and merely because appellants were allowed to continue on the post in pursuance of the interim order, would not entitle them to the posts on which they were illegally appointed."
16. In Ashok Kumar Sonkar vs. Union of India and others (2007) 4 SCC 54, the Hon'ble Supreme Court observed that there could be no doubt that audi alteram partem is one of the basic pillars of natural justice which means no one should be contemned unheard. However, whenever possible the principles of natural justice should be followed. These principles cannot be put in any straitjacket formula. The said principles may not be applied in a given case unless a prejudice is shown. It is ::: Downloaded on - 31/01/2022 23:26:32 :::CIS 11 not necessary where it would be a futile exercise. The Court of law does not insist on compliance with useless .
formality. It will not issue any direction where the result would remain the same, in view of the fact situation prevailing or in terms of the legal consequences. Lastly, it was held that where selection of an employee was illegal and he was not qualified on the cut-off date, he then being ineligible to be considered for appointment, it would have been a futile exercise to offer him an opportunity of being heard. It is relevant to reproduce paras 26 to 28 of the judgment which read 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 ::: Downloaded on - 31/01/2022 23:26:32 :::CIS 12 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 with 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."
17. Recently, the Hon'ble Supreme Court in State of Uttar Pradesh vs. Sudhir Kumar Singh and others, AIR 2020 SC 5215 has held as under:-
"38. Under the broad rubric of the Court not passing futile orders as the case is based on "admitted"
facts, being admitted by reason of estoppel, acquiescence, non-challenge or non-denial, the following judgments of this Court are all illustrations of a breach of the audi alteram partem rule being established on the facts of the case, but with no prejudice caused to the person alleging breach of natural justice, as the case was one on admitted facts:
(i) Punjab and Sind Bank and Ors. v. Sakattar Singh (2001) 1 SCC 214 : 2000 AIR SCW 4350 (see paragraphs 1, 4 and 5);
(ii) Karnataka SRTC and Anr. v. S.G. Kotturappa and Anr. (2005) 3 SCC 409: AIR 2005 SC 1933 (see paragraph 24);::: Downloaded on - 31/01/2022 23:26:32 :::CIS 13
(iii) Viveka Nand Sethi v. Chairman, J&K Bank Ltd.
and Ors. (2005) 5 SCC 337: AIR Online 2005 SC 81 (see paragraphs 21, 22 and 26);
.
(iv) Mohd. Sartaj and Anr. v. State of U.P. and Ors. (2006) 2 SCC 315 :AIR 2006 SC 3492 (see paragraph
18);
(v) Punjab National Bank and Ors. v. Manjeet Singh and Anr. (2006) 8 SCC 647: ( AIR 2007 SC 262) (see paragraphs 17 and 19);
(vi) Ashok Kumar Sonkar v. Union of India and Ors. (2007) 4 SCC 54 : AIR Online 2007 SC 24(see paragraphs 26 to 32);
(vii) State of Manipur and Ors. v. Y. Token Singh and Ors. (2007) 5 SCC 65 :AIR 2007 SC (Supp) 145 (see paragraphs 21 and 22);
(viii) Secretary, A.P. Social Welfare Residential Educational Institutions v. Pindiga Sridhar and Ors. (2007) 13 SCC 352 : (AIR 2007 SC 1527) (see paragraph 7)
(ix) Peethani Suryanarayana and Anr. v. Repaka Venkata Ramana Kishore and Ors. (2009) 11 SCC 308 : (AIR 2009 SC 2141)(see paragraph 18);
(x) Municipal Committee, Hoshiapur v. Punjab State Electricity Board and Ors. (2010) 13 SCC 216 : (2010 AIR SCW 7020)(see paragraphs 31 to 36, and paragraphs 44 and 45);
(xi) Union of India and Anr. v. Raghuwar Pal Singh (2018) 15 SCC 463 : AIR 2018 SC 1411 (see paragraph 20).
39. An analysis of the aforesaid judgments thus reveals:
(1)Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem ::: Downloaded on - 31/01/2022 23:26:32 :::CIS 14 rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused.
.
(2)Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest. (3)No prejudice is caused to the person complaining of the breach of natural justice where such person does not dispute the case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of non-challenge or non-denial or admission of facts, in cases in which the Court finds on facts that no real prejudice can therefore be said to have been caused to the person complaining of the breach of natural justice.
(4)In cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person. (5)The "prejudice" exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the non-observance of natural justice."
18. Now, adverting to the facts of the case, it would be noticed that the petitioner is neither eligible nor did he acquire eligibility within the extended time(s).
::: Downloaded on - 31/01/2022 23:26:32 :::CIS 1519. However, learned counsel for the petitioner would claim that since petitioner had acquired sufficient .
experience, therefore, he is entitled to be retained in service in accordance with the ratio laid down by the Hon'ble Supreme Court in Dr. M.S. Mudhol and another vs. S.D. Halegkar and others (1993) 3 SCC 591, more particularly, the observations made in paragraphs 5 and 6 of the judgment which read as under:-
"5. As regards the teaching experience, the 1st respondent's contention is that he had worked as a teacher for 9 years in a High School and Higher Secondary School which had upto 11 standards.
According to him, he also worked as a Lecturer in History. His further contention is that the post of the School Inspector in Karnataka where he was working as such and that of the teacher were interchangeable. Hence the selection committee had taken into consideration his experience in both the capacities. These facts are not controverted before us and in any case today, he has the requisite experience of teaching as he has been teaching the 11th and the 12th class continuously for 12 years now, since 1981. It can, therefore, be said that at least as on date when his removal from the post of Principal is sought, he cannot be said to be disqualified on account of the lack of required teaching experience.::: Downloaded on - 31/01/2022 23:26:32 :::CIS 16
6. Since we find that it was the default on the part of the 2nd respondent, Director of Education in illegally .
approving the appointment of the first respondent in 1981 although he did not have the requisite academic qualifications as a result of which the 1st respondent has continued to hold the said post for the last 12 years now, it would be inadvisable to disturb him from the said post at this late stage particularly when he was not at fault when his selection was made. There is nothing on record to show that he had at that time projected his qualifications other than what he possessed. If, therefore, inspite of placing all his cards before the selection committee, the selection committee for some reason or the other had thought it fit to choose him for the post and the 2nd respondent had chosen to acquiesce in the appointment, it would be inequities to make him suffer for the same now.
Illegality, if any, was committed by the selection committee and the 2nd respondent. They are alone to be blamed for the same."
20. We have considered the aforesaid submission in light of the observations made by the Hon'ble Supreme Court and find that the case pertained to the post of Principal of the school for which post the petitioner therein was not eligible, but then he was holding and working on the feeder post of teacher which he continued to teach for 9 years. It was in that background that the appointment of ::: Downloaded on - 31/01/2022 23:26:32 :::CIS 17 the petitioner was not disturbed and directions were passed in exercise of Article 142 of the Constitution and not by .
way of binding principle 141 as is evident from the observations contained in para-8 of the judgment which reads thus:
"8. However, we must make it clear that in the present case the 2nd respondent, Director of Education had committed a clear error of law in approving the academic qualifications of the 1st respondent when he was not so qualified. As pointed out above, the interpretation placed by him and the other respondents on the requisite educational qualifications was not correct and the appointments made on the basis of such misinterpretation are liable to be quashed as being illegal. Let this be noted for future guidance."
21. Learned counsel for the petitioner would then argue that the so-called instructions calling upon the ineligible teachers to acquire the qualifications were never circulated or brought to the notice of the petitioner.
22. We are not at all in a position to appreciate this argument. After-all, there is a presumption of regularity in the performance of official duties. A presumption of regularity in the performance of official duties is an aid to ::: Downloaded on - 31/01/2022 23:26:32 :::CIS 18 the effective and unhampered administration of government functions. Without such benefit, every official .
action could be negated with minimal effort from litigants, irrespective of merit or sufficiency of evidence to support such challenge. This presumption of regularity expressed by the maxim law omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium imply that all judicial and official acts are presumed to be rightly and regularly done. Neither motive could be presumed nor bad faith. This maxim infact stands codified in Section 114(e) of the Indian Evidence Act, 1872.
23. In view of the aforesaid discussion and for the reasons stated above, we find no merit in this petition and the same is accordingly dismissed, leaving the parties to bear their own costs. Pending application(s), if any, also stand disposed of.
(Tarlok Singh Chauhan) Judge (Satyen Vaidya ) Judge 15th December, 2021.
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