Gauhati High Court
Union Of India (Uoi) And Ors. vs Md. Zainul Abedin And Anr. on 31 May, 2006
Equivalent citations: (2007)2GLR301
Author: T. Nandakumar Singh
Bench: Chief Justice, T. Nandakumar Singh
JUDGMENT T. Nandakumar Singh, J.
1. In this writ petition the judgment and order of the Central Administrative Tribunal (CAT), Guwahati Bench. dated 1.5.2001 for allowing the Original Application No. 299/1999(T) filed by the present respondent No. 1 for setting aside the Memorandum dated 16.7.1998 issued by the Deputy Commissioner (Trg), Kendriya Vidyalaya Sangathan that the candidate whose name does not exist in the select list cannot be allowed to continue in service because his appointment already made is ab initio void without any authority of law, had been put into challenge.
2. Heard Mr. S.C. Biswas, learned Counsel appearing for the writ petitioner and also Mr. J.L. Sarkar, learned Counsel appearing for the respondent No. 1.
3. Since the present writ petition relates with the appointment of the respondent No. 1 to the post of PGT (History) in the Kendriya Vidyalaya Sangathan it would be required to see the relevant recruitment rules for the post of PGT (History) in the Kendriya Vidyalaya Sangathan.
4. Kendriya Vidyalaya Sangathan framed the Rules "Kendriya Vidyalaya Sangathan (Appointment, Promotion, Seniority, etc.) Rules, 1971 ("the Rules, 1971"). According to Rule 6 of the Rules, 1971 appointment by direct recruitment or by promotion to the post of PGT would be from the names of eligible candidates recorded in the select panel of appropriate grade prepared according to Rule 7 of the Rules, 1971. Rule 7 of the Rules speaks about the preparation of select panels. For easy reference Rule 7 of the Rules, 1971 is quoted hereinbelew:
7. Preparation of Select Panels. - (1) In the case of posts being filled up by direct recruitment, the appropriate selection authority shall, after test or interview or both, as the case may be, place the candidates considered suitable for appointment to the particular grade/post in a select panel in the order of their merit.
(2) In the case of posts being filled up by promotion on the principle of seniority subject to the rejection of the unfit, the Departmental Promotion Committee or other selecting authorities will first decide the field of choice, i.e., the number of eligible employees who are to be considered for inclusion in the Select Panel. From among such employees those who are considered unfit for promotion are to be excluded. The "Select Panel" will then be prepared by placing the names of the remaining employees without disturbing the seniority inter se.
(3) In the case of promotion on the basis of the seniority-cum-merit or on the principle of merit with due regard to seniority, the field of choice will first be decided and the employees considered unfit excluded in the same way as in Sub-rule (2) above. The remaining employees are then to be classified as "outstanding", "very good" and "good" on the basis of merit, as determined by their respective records of service and also test or interview if considered necessary. The "Select Panel" will thereafter be prepared by placing the names in the order of those categories, without disturbing the seniority inter se within each category.
(4) Where the posts are to be filled up partly by direct recruitment and partly by promotion, the select panel will be prepared as follows:
The appropriate selecting authority will prepare two select panels for the two categories in accordance with the procedure laid down above. The required panel will then be drawn up by combining these two separate panels according to the quota of posts reserved for each category. That is to say, the names of direct recruits will appear first, followed by the promotees; in proportion to the respective quota reserved for them.
(5) A reserve panel both for direct recruits and promotees to the extent of 50% of the main panel shall also be prepared while preparing the panels of these selections, so as to cover the contingency of drop outs or refusals during the validity of the panel.
5. From the conjoint reading of Rules 6 and 7 of the Rules, 1971 it is crystal clear that the candidates whose names appear in the select panel prepared by the Departmental Promotion Committee ('DPC') or other selecting authorities can only be appointed to the post of PGT (History) in the Kendriya Vidyalaya Sangathan.
6. It is stated that the respondent No. 1 was initially appointed as part time PGT (History) in Kendriya Vidyalaya, Jamalpur w.e.f. 5.5.1993 to 13.4.1994. Thereafter he was appointed on contractual basis w.e.f. 3.9.1994 to 29.4.1995. While he was serving in such capacity the Sangathan had advertised for filling up certain posts including the post of PGT (History) in the Kendriya Vidyalaya Sangathan. It is said that in response to the said advertisement the respondent No. 1 applied for the post of PGT (History) but he was not called for interview. Being aggrieved, it is said, he approached, the Patna High Court by filing writ petition being CWJC No. 2545/95. The hon'ble Patna High Court passed an interim order dated 24.4.1995 to the effect that.... Accordingly, I would direct the respondents to issue interview letter and permit the petitioner to participate in the interview provisionally subject to further orders that may be passed in this case". In pursuance of the above interim order of the hon'ble Patna High Court dated 24.4.1995 the respondent No. 1 was allowed to appear before the Selection Board on 30.9,1995 for the post of PGT (History) in Kendriya Vidyalaya, Sector-11, RK Puram, New Delhi.
7. It is said that the Deputy Commissioner (Pers.), 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi-110 016 wrote a letter dated 18.1.1996 to the Assistant Commissioner, Kendriya Vidyalaya Sangathan, Regional Office, Gauhati that the competent authority of Sangathan had decided to appoint him (the present respondent No. 1) as PGT (History) on regular basis. As such it was requested that the present respondent No. 1 may please be issued offer of appointment, on regular basis, for the post of PGT (History) in a Kendriya Vidyalaya in Guwahati Region where the vacancy exists under intimation to the Sangathan. For easy reference the said letter of the Deputy Commissioner (Pers.) dated 18.1.1996 is quoted hereinbelow:
F. 1-13/95-KVS/RP-II Dated 18 January, 1996 The Asstt. Commissioner, Kendriya Vidayalaya Sangathan, Regional Office Guwahati Subject: Recruitment to the post of PGTs - case of Md. Zainul Abdin PGT (History). KV - Jamalpur Sir, I am to refer to the subject cited above and to say that Mohd. Zainul Abdin, Part-time PGT (History) of KV - Jamalpur, filed a writ petition No. CWJC No. 2545 of 1995 in the High Court of Judicature at Patna. The hon'ble High Court of Judicature Patna in its order dated 24.4.1995 has ordered as under:
...Accordingly, I would direct the respondents to issue interview letter and permit the petitioner to participate in the interview provisionally subject to further orders that may be passed in this case.
2. In pursuance of the above orders of the hon'ble High Court Mohd. Zainul Abdin was allowed to appear before the Selection Board on 30.9.1995 for the post of PGT (History) in KV Sector-11, R.K. Puram, New Delhi. The Selection Board in their recommendations regarding the assessment of Mohd. Zainul Abdin have found him to be eligible for appointment as PGT (History) by awarding the marks above the prescribed bench mark.
3. Now the competent authority of Sangathan has decided to appoint him as PGT (History) on regular basis. As such it is requested that Mohd. Zainul Abdin may please be issued offer of appointment, on regular basis, for the post of PGT (History) in a Kendriya Vidyalaya in Guwahati Region where the vacancy exists under intimation to the Sangathan. Application form under No. 16/94/Hist/36407 in original submitted by Mohd. Zainul Abdin is sent herewith.
It is also requested that the veracity of mark-sheets/certificates, etc., may please be checked and pre-appointment formalities completed before issuing the offer of appointment to him.
Yours faithfully, (GK Chanana) Deputy Commissioner (Pers.)
8. In pursuance of the said letter of the Deputy Commissioner (Pers.) dated 18.1.1996 the Assistant Commissioner (Offg.), Kendriya Vidyalaya Sangathan issued a Memorandum dated 29/30.1.1996 for appointment of the respondent No. 1 to the post of PGT (History)
9. After the respondent No. 1 had been appointed as PGT (History) under the said Memorandum/appointment dated 29/30.1.1996 it had been found out that the name of the respondent No. 1 was not included in the panel of selected candidates prepared by the Selection Committee in compliance with Rule 7 of the Rules, 1971.
10. The said writ petition, i.e., CWJC 2545/95, preferred by the respondent No. 1 before the hon'ble Patna High Court had been dismissed on withdrawal under an order of the hon'ble Patna High Court dated 15.3.1996 which stands as follows:
Learned Counsel for the petitioner seeks permission to withdraw this application. Permission is accorded.
This application is dismissed as withdrawn.
11. From a bare perusal of the order of the hon'ble Patna High Court dated 15.3.1996 passed in CWJC No. 2545/95 it is clear that any action taken in pursuance of the interim order dated 24.4.1995 passed in the said CWJC No. 2545/95 had not been protected and the result of the dismissal of the CWJC No. 2545/95 would be that the validity of the interim order dated 24.4 1995 will be co-terminus with the order dated 15.3.1996 for dismissing the writ petition. The consequence of the order of the Patna High Court dated 15.3.1996 for dismissing the CWJC No. 2545/95 would be that the appearance of the respondent No. 1 in the interview in pursuance of the said interim order of the hon'ble Patna High Court dated 24.4.1995 would have no effect. We are of the considered view that even only on this score the respondent No. 1 could not be validly included in the list of panel of selected candidates prepared by the Selection Committee/DPC in compliance with the provisions of Rule 7 of the said Rules, 1971 for appointment to the post of PGT (History).
12. The Assistant Commissioner (Admn), Kendriya Vidyalaya Sangathan also issued a Memorandum dated 9.1.1997 asking the respondent No. 1 to show cause as to why his service as PGT (History) should not be terminated for the reason that he was appointed as PGT (History) in pursuance of the letter of the Deputy Commissioner (Pers.) dated 18.1.1996 which has been quoted above in entirety and also that his name does not find place in the select panel even and also that the respondent No. 1 is not eligible to be kept appointed further on regular basis in Kendriya Vidyalaya Sangathan. The respondent also submitted show cause statement dated 20.2.1997. The appointing authority after taking into consideration the case of the respondent No. 1 and also the circumstances under which the respondent No. 1 appeared in the interview for appointment to the post of PGT (History) under the interim order of the hon'ble Patna High Court dated 24.4.1995 in CWJC No. 2545/95 and also that his name does not find place in the panel of selected candidates for appointment to the post of PGT (History) and the other relevant materials per se issued a Memorandum dated 16.7.1998 that the competent authority in the Sangathan has come to the conclusion that the appointment of the respondent No. 1 to the post of PGT (History) in Kendriya Vidyalaya Sangathan is ab initio void as his name is not in the select list for appointment as PGT, As stated above, the respondent filed the Original Application No. 299/99(T) before the Central Administrative Tribunal, Guwahati Bench challenging the Memorandum dated 16.7.1998 and the learned Tribunal passed the impugned judgment and order dated 1.5.2001 that the Memorandum dated 16.7.1998 as well as the Memorandum dated 29.7.1998 issued by the Principal, K.V. Umroi for relieving the respondent No. 1 from service are set aside.
13. It is well settled that relief can be granted only in the case where every party has a right under the statute or the relevant rules to enforce performance and that there is a statutory duty imposed upon the officer concerned and there is failure on the part of that officer to discharge the statutory obligations. The chief function of the writ is to compel performance of public duties prescribed by the statute. See Union of India v. C. Krishna Reddy .
14. It is also equally well settled that a writ of mandamus or remedy under Article 226 is pre-eminently a public law remedy. See Binny Ltd. v. V. Sadasivan .
15. A Division Bench of this court, incidentally one of us is a party (hon'ble the Chief Justice, Mr. B.S. Reddy), in State of Manipur v. Moirangthem Chaoba Singh (2006) 1 GLT 19 has clearly discussed the requirements for seeking the writ of mandamus or the remedy under Article 226 of the Constitution of India and held that the remedy under Article 226 of the Constitution is pre-eminently a public law remedy and for seeking that remedy the concerned citizen has to acquire the vested right or a right under the statute or any other relevant Rules.
16. Keeping in view of the law laid down by the Apex Court as well as this court it is required to see whether the respondent No. 1 had acquired any vested right to be appointed to the post of PGT (History) in the Kendriya Vidyalaya Sangathan.
17. The respondent No. 1 filed his affidavit-in-opposition. In his affidavit-in-opposition the respondent No. 1 has failed to point out that his name is included in the panel of selected candidates for appointment to the post of PGT (History) prepared by the Selection Committee in compliance of the provisions of Rule 7 of the Rules, 1971. For effective decision of the core question as to whether the name of the respondent is included or not in the panel of selected candidates the learned Counsel appearing for the petitioners was asked to produce the list of selected candidates prepared by the Selection Committee. Accordingly the learned Counsel placed the list of selected candidates for appointment to the post of PGT (History) prepared by the Selection Committee and also signed by all the members of the Selection Committee. From the perusal of the select list of the candidates produced by the learned Counsel for the petitioners it is crystal clear that the name of the present respondent No. 1 is not included in the list of selected candidates for appointment to the post of PGT (History) in the Kendriya Vidyalayas.
18. The learned Counsel for the petitioners Mr. S.C. Biswas in order to substantiate the case of the petitioners has relied on the decision of the Apex Court (Constitution Bench) in Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors. . It would not be wrong to say that the decision of the Constitution Bench of the Apex Court in Secretary, State of Karnataka (supra) is the magna carta in the matters relating with the appointment of employees in the service and also the power and the jurisdiction of the High Court under Article 226 relating with the cases for absorption, regularization and permanent continuance of such employees.
19. The Apex Court in the Secretary, State of Karnataka (supra) held that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. The appointments made without following due process or the rule for appointment do not confer any right on the employee and that the court cannot direct for absorption or regularization or re-engagement or make them appointed. It is not the role of the courts to encourage or approve appointment made or engagements given outside the constitutional scheme. The Apex Court further held that when the court is approached for relief by way of writ, the court has necessarily to ask itself whether the persons before it had any right to be enforced.
20. The Apex Court in Secretary, State of Karnataka (supra) also held that bypassing of the constitutional scheme cannot be perpetuated by the passing of orders without dealing with and deciding the validity of such orders on the touchstone of constitutionality. It is a fact that the name of the respondent No. 1 is not included in the panel of selected candidates prepared by the Selection Committee/DPC in compliance of the provisions of Rule 7 of the Rules, 1971. Direction to the competent authority to appoint the respondent No. 1 to the post of PGT (History) even if he is not included in the select list will amount to perpetuating the illegality.
21. The Apex Court in Secretary, Jaipur Development Authority, Jaipur v. Daulatmal Jain and Ors. held that one illegality cannot be compounded by permitting similar illegal or illegitimate or ultra vires acts. The Apex Court of the similar view in Binny Ltd. (supra).
22. The Apex Court in a catena of decisions has discussed the point as to whether the principle of natural justice would be attracted in terminating the services of the employee admittedly appointed de hors the rules and held that in the admitted cases of appointment de hors the rules the principle of natural justice would be "useless formality" in terminating their services.
23. In the case of M.C. Mehta v. Union of India and Ors. the Apex Court held as follows:
23. We do not propose to express any opinion on the correctness or otherwise of the "useless formality" theory and leave the matter for decision in an appropriate case, inasmuch as, in the case before us, "admitted and indisputable" facts show that grant of a writ will be in vain as pointed out by Chinnappa Reddy, J.
24. The Apex Court again in Aligarh Muslim University and Ors. v. Mansoor Ali Khan held that:
24. The principle that in addition to breach of natural justice, prejudice must a/so be proved has been developed in several cases. In K.L. Tripathi v. State Bank of India Sabyasachi Mukharji, J (as he then was) also laid down the principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed, quoting Wade's Administrative Law (5th edn., pp. 472-75), as follows : (SCC; p. 58, para 31) [I] t is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent.... There must also have been some real prejudice to the complainant ; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth.
Since then, this court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in State Bank of Patiala v. S.K. Sharma . In that case, the principle of "prejudice" has been further elaborated. The same principle has been reiterated again in Rajendra Singh v. State of M.P. .
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 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.
25. The Apex Court in R. Vishwanatha Pillai v. State of Kerala and Ors. has discussed the point as to whether the employee obtaining the appointment on false caste certificate can claim a right to the post and also the termination of the appointment obtained on the basis of false caste certificate attract the constitutional guarantee given under Article 311 of the Constitution of India. The Apex Court held that where an appointment in service has been acquired by practice of fraud or deceit such an appointment is no appointment in law and on such circumstances Article 311 of the Constitution is not attracted at all. The Apex Court in paragraph 15 of the judgment held:
15. This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eye of the law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of a false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Castes. In view of the finding recorded by the Scrutiny Committee and upheld up to this court, he has disqualified himself to hold the post. The appointment was void from its inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India. As the appellant had obtained the appointment by playing a fraud, he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder. Where an appointment in a service has been acquired by practising fraud or deceit, such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all.
26. In the present case the respondent No. 1 is not terminated from service on the ground of misconduct or the criminal charge, etc., but only on the admitted fact that the respondent was not selected for appointment to the post of PGT (History) by following due process of law and also that his appointment to, the post of PGT (History) is de hors the rules. It is equally well settled that termination or dismissal of a regularly and legally appointed employee on the basis of misconduct or as a punishment will attract the principle of natural justice and also the constitutional guarantee given under Article 311 of the Constitution of India.
27. The learned Tribunal while passing the impugned judgment and order dated 1.5.2001 in OA No. 299/99 was of the view that the Selection Board after making assessment had recommended the respondent No. 1 for appointment to the post of PGT (History) and also that his name is included in the list of the selected candidates prepared by the Selection Committee/DPC in compliance of Rule 7 of the Rules, 1971 for appointment to the post of PGT (History) and basing on those erroneous findings the learned Tribunal passed the impugned judgment and order for setting aside the impugned order/Memorandum dated 16.7.1998 for not allowing the respondent No. 1 to continue in the service as PGT (History) because of his appointment being ab initio void and illegal and without authority of law and also the Memorandum issued by the Principal, Kendriya Vidyalaya dated 29.7.1998 for relieving the services of the respondent with immediate effect.
28. For the reasons discussed above, we are of the considered view that the respondent No. 1 did not acquire any vested right for appointment to the post of PGT (History) in Kendriya Vidyalaya Sangathan and also for continuing in service in such capacity and that his appointment under Office order/Memorandum dated 29/30.1.1996 is illegal. Accordingly interference to the impugned judgment and order of the learned Tribunal dated 1.5.2001 in OA No. 299/99(T) is called for and we do so.
29. In the result the impugned order dated 1.5.2001 passed by the learned Central Administrative Tribunal in OA No. 299/99 is set aside and the writ petition is allowed. Parties shall bear their own costs.