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6. Relief."

The Additional Civil Judge (Senior Division), Bhiwani dismissed the suit of the plaintiff-appellant vide judgment and decree dated 14.12.2010. While dismissing the suit, the trial Court under issue No.1 held as under:

"After hearing the submissions made by learned counsel for the plaintiff, learned Government pleader for defendant No.1 to 3 and defendant No.4, it is held that that plaintiff has himself admitted that as per the government orders guest teachers were appointed in schools in Haryana as Guest Faculty. There is no dispute that the plaintiff was also appointed as Hindi Teacher in Guest Faculty. There is no dispute that on the date of submission of application the plaintiff and defendant No.4 were having equal marks in MA (Hindi) examination. There is also no dispute that Suresh, Defendant No.4 was older to the plaintiff. It is settled preposition of law that if two candidates are equal in merit, the candidate older in age will be given appointment. Although the plaintiff has claimed that he was illegally removed from the service as he has lateron submitted the amended MA (Hindi) examination certificate in which his four marks were increased. But in the considered opinion of this Court at the time of submission of application forms the plaintiff has submitted his MA (Hindi) examination certificate in which he was having equal marks to defendant No.4 and the clerical mistake regarding the marks came into picture lateron. There is no dispute that at the time of appointment defendant No.4 was older in age to the plaintiff. Therefore, in the considered opinion of this Court the letter dated 17.02.2006 vide which the plaintiff was removed from service can not be said as illegal as per the facts and circumstances at that time. Hence, the order dated 17.02.2006 can not be set aside being illegal, null and void and not binding on the rights of the parties. At this time there is no dispute that regular has already joined in the school and services of defendant No.4 have already come to an end and now there is no vacant seat of Guest Teacher, therefore, the present suit of the plaintiff has already become infructuous. Present issue is accordingly decided against the plaintiff and in favour of the defendants."

It has been further argued that the clerical mistake was rectified by the University on 07.02.2006, much before passing of impugned order dated 16.02.2006 cancelling his appointment and further appointing defendant-respondent No.4 in his place, and since no notice was given to explain his position the said order has been passed in violation of the principles of natural justice ignoring the settled proposition of law that no person can be condemned unheard, and thus, his removal from service was illegal and he was entitled to the relief claimed. It has been further argued that the courts below have seriously fallen into error while observing that the plaintiff-appellant as well as defendant-respondent No.4 have obtained equal marks. Moreover, the mistake was pointed out to the respondents prior to the removal of appellant, and therefore, the plaintiff-appellant could not have been removed for this reason and the order of removal dated 16.02.2006 was illegal, null and void.

At the outset, certain admitted facts may be noticed. The appellant was appointed after interview on 23.12.2005 as Guest Faculty Hindi Teacher and his services were terminated vide order dated 16.02.2006 noticing that the plaintiff-appellant as well as defendant-respondent No.4 had equal marks i.e. 410 out of 800 in MA, but defendant No.4 being elder in age was entitled to be appointed as per rules. It may further be noticed that along with his application for appointment, the appellant had submitted the mark-sheet showing his marks as 410 out of 800 in MA examination. Again it is not disputed that on 07.02.2006 mark-sheet of the appellant was revised by the University Authorities showing his marks as 414 out of 800; whereas the selection procedure had already been completed on 23.12.2005.