Madhya Pradesh High Court
Munna Lal Yadav vs Dr. Hari Singh Gour And Anr. on 30 January, 2006
Author: R.S. Jha
Bench: R.S. Jha
ORDER R.S. Jha, J.
1. The petitioner, Munnalal Yadav, has challenged the order of the respondents dated 7-9-1993, by which the promotion granted to the petitioner from the post of Lab. Attendant to the post of Lab. Technician/Store Keeper, Gr. II has been cancelled on the ground that the impugned order is in complete violation of the principles of natural justice and fair play as it has been passed without assigning any reason or giving any opportunity of hearing to the petitioner by way of a show-cause notice and hearing.
2. The respondents have filed a reply to the application for grant of ad-interim writ filed by the petitioner and has submitted that the State Government had evolved a policy for the purposes of filling up the posts of Lab. Technician as no statutory rules or provisions existed in this regard. As per the policy 50% of the posts of Lab. Technician could be filled up by promotion from amongst those Lab. Attendants who had passed Higher Secondary Examination with Science subjects. This policy was adopted by the Executive Council of the respondent University. A copy of the policy decision of the State Government dated 23-9-1988 and the resolution of the respondent University has been filed by them as Annexures R-1 and R-2. As per the resolution of the respondent University an in house call letter was issued by the respondents on 7-4-1992 calling for applications from such Lab. Attendants who had passed Higher Secondary School examination in Science subjects and had five years regular service for promotion on the post of Lab. Technician. The petitioner alongwith others filed applications and vide order dated 10-5-1993 the petitioner was granted ad hoc and temporary promotion until further orders on the post of Lab. Technician. Subsequently on scrutiny it was found that the petitioner did not possess the minimum requisite qualification, i.e., Higher Secondary in Science subjects and therefore, vide the impugned order dated 7-9-93 the promotion was cancelled and the petitioner was directed to work on his original post of Lab. Attendant. The learned Counsel for the petitioner has assailed the impugned order on the sole ground of violation of the principles of natural justice as no show-cause notice or opportunity of hearing was granted to the petitioner before cancelling his order of promotion.
3. It is put forth by the learned Senior Counsel appearing for the respondents that the promotion granted to the petitioner was contrary to the rules as he did not possess the requisite qualification and that is why it has been cancelled. Under the circumstances, the principles of natural justice are not attracted and the question of giving any show-cause notice also does not arise as per the useless formality theory, as admittedly the petitioner does not possess the minimum requisite qualification.
4. I have heard the learned Counsel for the parties at length. It is an admitted fact as conceded by the learned Counsel for the petitioner as well as the respondents that the petitioner has not passed Higher Secondary School examination with Science subjects. This fact was within the knowledge of the respondents yet the petitioner was granted adhoc promotion until further orders. On closer scrutiny when it was found that he did not possess the requisite qualification the promotion was cancelled. The only issue raised by the Counsels for the parties for decision is whether the impugned order deserves to be quashed as it has been passed without giving any show-cause notice or opportunity of hearing to the petitioner although it is an admitted fact that the petitioner was not qualified for being considered for promotion on the post of Lab. Technician. The learned Counsel for the respondents has placed reliance on the judgments of the Hon'ble Supreme Court reported in State of M.P. and Ors. v. Shyama Pardhi and Ors. State of M.P. and Anr. v. Dharam Bir M.C. Mehta v. Union of India and Ors. Canara Bank and Ors. v. Debasis Das and Ors. H.F. Sangati v. R.G. High Court of Karnataka AIR 2001 SC 886.
5. In the case of State of M.P. and Ors. v. Shyama Pardhi and Ors. (supra), persons who admittedly did not possess the pre-requisite qualifications prescribed by the Statutory Rules were wrongly appointed and subsequently also given training as Auxiliary Nurse-cum-Midwife. Subsequently on finding that they did not possess the requisite qualifications their appointments were cancelled which was challenged successfully by them before the State Administrative Tribunal. The State of Madhya Pradesh successfully assailed the order of the Tribunal before the Apex Court which set aside the order of the Tribunal on the ground that as the initial selection itself was illegal being contrary to and in violation of the Statutory Rules, cancellation of such appointments would not attract the principles of natural justice and the order of cancellation of appointment could not be set aside on that ground.
6. In the case of M.C. Mehta v. Union of India and Ors. (supra), the Hon'ble Supreme Court while refraining from expressing any opinion regarding the useless formality theory discussed the same in Paragraphs 22 and 23 of the judgment in the following terms :
22. Before we go into the final aspects of this contention, we would like to state that cases relating to breach of natural justice do also occur where all facts are not admitted or are not all beyond dispute. In the context of those cases, there is a considerable case-law and literature as to whether relief can be refused even if the Court thinks that the case of the applicant is not one of "real substance" or that there is no substantial possibility of his success or that the result will not be different, even if natural justice is followed. See Malloch v. Aberdeen Corpn. (per Lord Reid and Lord Wilberforce), Glynn v. Keele University, Cinnamond v. British Airports Authority, and Ors. cases where such a view has been held. The latest addition to this view is R. v. Ealing Magistrates' Court exp Fannaran (Admn LR at p. 358) (See de Smith, Suppl. p. 89) (1998) where Straughton, L.J. held that there must be "demonstrable beyond doubt" that the result would have been different. Lord Woolf in Lloyd v. McMohan (WLR at p. 862) has also not disfavoured refusal of discretion in certain cases of breach of natural justice. The New Zealand Court in Mc Carthy v. Grant however goes halfway when it says that (as in the case of bias), it is sufficient for the applicant to show that there is "real likelihood-- not certainty of prejudice". On the other hand, Garner Administrative Law (8th Edn., 1996, pp. 271-72) says that slight proof that the result would have been different is sufficient. On the other side of the argument, we have apart from Ridge v. Baldwin, Megarry, J. in John v. Rees stating that there are always "open and shut cases" and no absolute rule of proof of prejudice can be laid down. Merits are not for the Court but for the authority to consider. Ackner, J. has said that the "useless formality theory" is a dangerous one and, however inconvenient, natural justice must be followed. His Lordship observed that "convenience and justice are often not on speaking terms". More recently Lord Bingham has deprecated the "useless formality" theory in R. v. Chief Constable of the Thames Valley Police Forces, exp Cotton by giving six reasons (See also his article "Should Public Law Remedies be Discretionary ?" 1991 PL, p. 64) A detailed and emphatic criticism of the "useless formality theory" has been made much earlier in "Natural Justice Substance or Shadow" by Prof. D.H. Clark of Canada (see 1975 PL, pp. 27-63) contending that Malloch and Glynn were wrongly decided. Foulkes (Administrative Law, 8th Edn., 1996, p. 323), Craig (Administrative Law, 3rd Edn., p. 596) and others say that the Court cannot prejudge what is to be decided by the decision-making authority. de Smith (5th Edn., 1994, paras 10.031 to 10.036) says Courts have not yet committed themselves to any one view though discretion is always with the Court. Wade (Administrative Law, 5th Edn., 1994, pp. 526-30) says that while futile writs may not be issued, a distinction has to be made according to the nature of the decision. Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a "real likelihood" of success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the Courts can, in exercise of their "discretion", refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma, Rajendra Singh v. State of M.P. that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived.
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.
7. In the case of Canara Bank and Ors. (supra), after quoting Paras 22 and 23 of the judgment in the case of M.C. Mehta (supra), the Hon'ble Supreme Court was pleased to observe thus :
23. As was observed by this Court we need not got into "useless formality theory" in detail; in view of the fact that no prejudice has been shown. As is rightly pointed out by the learned Counsel for the appellants, unless failure of justice is occasioned or that it would not be in public interest to dismiss a petition on the fact situation of a case, this Court may refuse to exercise the said jurisdiction (see Gadde Venkateswara Rao v. Govt. of A.P. ).
24. Additionally, there was no material placed by the employee to show as to how he has been prejudiced. Though in all cases the post-decisional hearing cannot be a substitute for pre-decisional hearing, in the case at hand the position is different.
8. At this stage, I may profitably refer to the judgment in the case of Jai Ram v. Union of India wherein for the first time the Hon'ble Supreme Court used the expression "useless formality" in relation to requirement of giving a show-cause notice. In that case it was held that:
When a servant has attained the age of 55 years and for some reason or other himself confesses his inability to continue in service any longer and seeks permission for retirement, it is a useless formality to ask him to show cause as to why his service should not be terminated. Section 240(3) of the Government of India Act, 1935 could not have any possible application in such circumstances.
9. In the case of Shahoodul Haque v. Registrar, Coop. Societies the Hon'ble Supreme Court had occasion to consider the case of a person who had abandoned his service and in that context observed that giving him a show-cause notice would serve no useful purpose. In that case, it was held that--
The petitioner applied on November 15, 1963 for leave to go on pilgrimage to Mecca but he left without grant of leave and applied from Mecca on April 27, 1964 for extension which was never granted. It amounts to abandonment of job on account of absence for an exceedingly long period. To give him further opportunity to disprove what he practically admits would serve no useful purpose.
10. In the case of Kendriya Vidyalaya Sangathan and Ors. v. Ajay Kumar Das and Ors. where the appointment orders were not valid and were a nullity having been issued by an officer whose service had already been terminated it was held that it would be futile to contend that the principles of natural justice should be followed and prior notice should be served on the persons who had been appointed by such an officer prior to cancellation of the orders of appointment. The same view has also been expressed by the Hon'ble Supreme Court in the case of Aligarh Muslim University and Ors. v. Mansoor Ali Khan
11. At this point, I may with advantage also referred to the law laid down by the Hon'ble Supreme Court. In this respect in the case of Managinng Director, ECIL v. B. Karunakar it is held that--
When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and this to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice.
12. What emerges from the law laid down by various judgments of the Supreme Court is that normally in all cases of clear violations of principles of natural justice, the Courts can be approached fearlessly but the principles of natural justice cannot be invoked as hackneyed incantations to be thoughtlessly incited in all cases. Their applicability has to be judged in the facts and circumstances of each case. Some of the instances where the Hon'ble Supreme Court has refused to interfere in spite of breach of principles of natural justice are where no actual prejudice is caused to the affected party; or cases, where only one conclusion is possible and permissible and giving of an opportunity of hearing would not make any difference; or the result would not be different or in cases of undisputed and admitted facts; or cases where no useful purpose would be served even if the requirement of issuing a notice is insisted upon; or cases where the person concerned is so unconnected with the impugned irregularity that he would have nothing to say even on being noticed; or cases where adherence to the principles is reduced to a useless formality etc. I may hasten to add that this is not an exhaustive but only an illustrative list of some of the instances where the Courts have refused to interfere even if there has been breach of the principles of natural justice. Each case has to be judged on its own facts to come to the conclusion whether the principles of natural justice can be invoked or whether non-compliance with them would render the action void or contrary to law.
13. In the instant case, the petitioner admits that he did not possess the requisite qualifications for promotion namely passing Higher Secondary School examination with Science subjects. It is also admitted that the promotion has been cancelled as it was found that the petitioner did not possess the requisite qualifications. In view of the admitted facts of the case, it is the considered opinion of this Court that giving of a show-cause notice would not make any difference to the conclusion in as much as it would neither wipe out the illegality nor would it, in some magical way, confer qualifications on the petitioner which he admittedly does not possess.
14. Learned Counsel for the petitioner submits that as the impugned order has resulted in adverse civil consequences the respondents were bound to give an opportunity of hearing even though it is an admitted fact that the petitioner does not possess the requisite qualifications. In my considered opinion, that would be stretching the concept of civil consequences to the extent of unreasonability. In cases, where a person derives some benefit due to mistake or deliberate manipulation to which he is otherwise not entitled and which is subsequently withdrawn on such discovery, the beneficiary cannot complain of having suffered adverse civil consequences as he has no civil, legal or moral right to retain the benefit. In such circumstances insistence upon following the principles of natural justice by invoking the theory of adverse civil consequences would amount to misuse and abuse of the principles of natural justice and the law of due process. In the instant case, it is an admitted fact that the petitioner lacked qualifications and was not entitled to be considered for promotion on the post of Lab. Technician and the order of promotion in his favour was by way of a mistake and apparently illegal and contrary to law. As he was not entitled to be considered for promotion but was granted promotion by mistake, withdrawal of such an order would not amount to inflicting adverse civil consequences upon the petitioner. The contention of the learned Counsel for the petitioner is therefore, rejected.
15. There is yet another reason to refuse relief to the petitioner. I am of the considered opinion that when admittedly the petitioner does not possess the requisite qualification no writ in his favour can be issued in exercise of powers under Article 226 of the Constitution of India to quash the order of cancellation of promotion as that would result in breach of the eligibility qualifications and also result in permitting the petitioner to continue on the post of a Lab. Technician although he does not possess the requisite qualification, i.e., result in perpetuating an illegality. It is a well recognized guiding principle of exercising jurisdiction under Article 226 of the Constitution of India that the High Court may not invoke its extra-ordinary jurisdiction in cases where quashing an order which suffers from some minor technical defects would result in reviving an order or a situation which itself is contrary to law. The principle laid down by the Supreme Court is that it is not necessary to interfere in all cases if striking down the impugned order would result in restoration of another order which is not in accordance with law or is illegal. To put it simply, the Courts must refrain from piling technicality upon irregularity in cases where it would result in perpetuating an illegality.
16. The result of the above mentioned analysis is that in the instant case, the impugned order does not deserve to be quashed merely on the ground that a show-cause notice to the petitioner was not issued as admittedly the petitioner does not possess the requisite qualifications and therefore, cannot either add anything or explain anything in that respect and secondly as quashing of the impugned order on this mere technicality of breach of principles of natural justice would result in affirming the order of promotion in favour of the petitioner which is otherwise contrary to law. I, therefore, dismiss this petition being sans merit. There shall be not order as to cost.
Security amount, if any, be refunded to the petitioner.