Full Judgment Text
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CASE NO.:
Appeal (civil) 4507-4508 of 2005
PETITIONER:
MOHD. SARTAJ AND ANR
RESPONDENT:
STATE OF U.P. AND OTHERS
DATE OF JUDGMENT: 16/01/2006
BENCH:
S.B. Sinha & P.P. Naolekar
JUDGMENT:
JUDGMENT
P.P. NAOLEKAR,J.
In the year 1984, the Government of U.P. had decided to
appoint Urdu teachers in most of the districts of U.P. and the number
of teachers to be appointed for each district was fixed. For the district
of Muzaffarnagar, 60 Urdu teachers were to be appointed. In
pursuance of the decision of the Government of U.P., the Basic
Shiksha Adhikari, Distt. Muzaffarnagar by an advertisement dated
15.10.84 invited applications for the post of Asstt. Teachers (Urdu).
The minimum educational qualification for the said post as per the
advertisement was that the candidates should have either passed the
Higher Secondary, Intermediate or equivalent examination thereto
recognized by the Government (along with Urdu as subject) and
possessed the Basic Teacher’s Certificate (B.T.C.), Hindustani
Teacher’s Certificate, Junior Teacher’s Certificate (J.T.C.), or
Certificate of Teaching (T.C.) or equivalent thereto, recognized by the
Government or any training equivalent thereto. The advertisement
also provided that the higher caste candidates who were trained by
1974 and those Scheduled Caste, Backward Caste and Scheduled
Tribe candidates, who were trained upto 1975 may only apply
because other candidates trained after this period were not going to
be considered. Both the appellants had the High School Degree as
well as the Intermediate Degree with Urdu as one of the subjects
along with Urdu Training Certificate such as Adib, Adib-e-Mahir and
Moallim-e-Urdu from the Jamia Urdu, Aligarh. In pursuance of the
advertisement issued dated 15.10.84, the Basic Education Board,
Muzaffarnagar conducted an interview and the Upper Basic Shiksha
Adhikari, respondent no.4 herein, on 19.6.85 published a list of
selected candidates, which included the names of the appellants
herein. The list / memorandum itself provided that all the selected
candidates were required to join their respective schools / colleges
within the period of 15 days, otherwise their appointment would
automatically be deemed to be cancelled. After receipt of the
memorandum both the appellants joined duties within the stipulated
15 days and started working as per the conditions of service.
However, on 7.8.85, i.e., within a very short span of their appointment
the Urdu Advisory Director of Education, respondent no.2 herein,
issued direction to respondent no.4, regarding the cancellation of
the appointment of the appellants on the ground that they did not
possess the Basic Training Certificate (B.T.C.). Respondent no. 4
vide his letter dated 9.8.85 cancelled their appointment and directed
them to contact the appointing authority, along with B.T.C. and
Intermediate (Urdu Certificate) for the purpose of verification , if these
documents were in their possession. Being aggrieved by the above-
mentioned order, the appellants filed a writ petition before the
Lucknow Bench of the Allahabad High Court on 20.9.85 and the High
Court stayed the operation of the order of cancellation of their
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appointments.
Meanwhile, the appellants acquired B.T.C. in 1993 and 1995
respectively and continued with their service. Before their
appointment, on 28.1.85 the Special Secretary to the U.P.
Government by letter informed all heads of departments and Chief
Officers, U.P. that Hon’ble Governor had approved such candidates
who were qualified as Moallim-e-Urdu from Jamia Urdu, Aligarh and
got the experience of teaching at Higher Secondary School as eligible
for employment in the State services / educational institutions.
Similarly, on 21.10.88 the Special Secretary to the U.P. Government
passed an order to inform all head of departments and Chief Officers
of U.P. that the candidates with the degree of Moallim-e-Urdu granted
by Jamia Urdu, Aligarh, and those who had got the experience of
teaching upto Higher Secondary level had been directed to be
appointed as teachers in State services. On 13.9.94 the Secretary of
U.P. Government by his order informed all authorities of education
that Hon’ble Governor had granted sanction to Moallim-e-Urdu for
teaching Urdu in junior and senior schools and it was given
equivalent status of B.T.C.. Thus by this Circular, degree of Moallim-
e-Urdu from Jamia Urdu, Aligarh was given equivalent status of
B.T.C. Certificate.
Before the High Court, it was contended by the appellants that
the appointments were cancelled without issuing any prior notice or
giving opportunity of being heard and hence the order of dismissal
issued is violative of principles of natural justice. It is also urged that
the appellants having higher qualifications than the prescribed ones
and hence even if they acquired the prescribed qualifications at later
stage, the selection and appointment was perfectly lawful, just and
proper. The argument of the appellants was countered by the
respondents contending therein that the appellants were not entitled
to continue in service and their appointment was rightly cancelled
within the short span of time on detecting the error that they did not
qualify for the appointment, and, therefore, the compliance of natural
justice was not necessary. The appellants having not possessed the
minimum qualification under the Rules, their initial appointment itself
was bad.
The High Court, relying upon the ruling of this Court in Dr. Prit
Singh vs. S.K. Mangal & Ors. 1993 Supp. (1) S.C.C. 714, held that
appellants’ appointment was not proper. It further relied on State of
Mizoram vs. Biakchhawna (1995) 1 S.C.C. 156, to conclude that
it was incumbent on the authorities to advertise the vacancy strictly
by following Rule 8 of the Service Rules which was not done. It was
also pointed out that any selection made in violation of the relevant
rules was illegal and reliance was placed on Gurdeep Singh vs.
State of J. & K. & Ors. 1995 Supp. (1) S.C.C. 188 along with the
decision of a Division Bench of the Allahabad High Court in Ashok
Kumar Saxena vs. State of U.P. & Ors. 1994 LAB.I.C. Reliance
was also placed on V.K. Sood vs. Secretary Civil Aviation &
Ors. 1993 Supp. (3) S.C.C. and J. Ranga Swamy vs. Govt. of
Andhra Pradesh A.I.R. 1990 S.C. 535 to observe that it was the duty
of the rule-making authority to regulate the method of recruitment and
provide necessary qualification after considering the relevant facts
and circumstances.
Regarding the statutory force of Rule 8, the Court observed that
it could not be modified either by government or by the advertisement
as per this Court’s ruling in State of Haryana vs. S.J. Bahadur,
1972 (2) S.C.C. 188, and, therefore, the advertisement for the posts
was in violation of the service rules.
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 pre-requisite minimum qualification
for the appointment was not fulfilled and resulted in the cancellation
of the appointment. The Court also opined that the action of
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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.
By order dated 3.2.2004, the Single Judge dismissed the
petition and directed the State Government to re-advertise the post
as early as possible and make such fresh recruitment in accordance
with rule. The Court further pointed out that State Govt. could amend
the existing rule and consider the petitioners’ case by relaxing their
age while making fresh recruitment. It was also pointed out that State
Govt., if desired, could provide appropriate provision in rule to
consider petitioners’ case for recruitment at par with other candidates.
Appeal filed against the order was also dismissed by the High
Court on 15.3.2004. Aggrieved by this, the present appeals had been
filed.
It is contended by the counsel for the appellants that the
appellants having been appointed in pursuance of the advertisement
after following due procedures, cancellation order of their
appointment could have been issued only after giving them an
opportunity of being heard. The State is bound to give a person who
is affected by their decision an opportunity of making a representation
when the right has been created in favour of the appellants by
issuance of appointment orders in their favour. In any case, the
State by various orders having given equivalence of the degree
obtained by the appellants, i.e., Moallim-e-Urdu from Jamia Urdu,
Aligarh to the B.T.C., their services could not have been cancelled. It
is further urged that appellants’ appointment has been made having
possessed of the qualifications as mentioned in the advertisement
and that being the case, it could not have been cancelled. On the
other hand, it is urged by the learned counsel for the respondents that
the recruitment to the pubic services should be held in accordance
with the terms of the recruitment rules and the appellants could
not claim any right over the post when they were not qualified to
be appointed to the said post. The appellants have been given
sufficient opportunity in the order of cancellation itself wherein they
have been provided with an opportunity to produce the B.T.C.
Certificate along with Intermediate Urdu Certificate before the
appointing authority in original so that mistake, if any, committed in
cancellation of the appointment could be rectified. It is further urged
that in government order, administrative instructions inconsistent with
the statutory rules would be illegal and if any change is to be brought
about it can only be done by suitably amending the rules. The
appointment of the appellants being contrary to the rules, they cannot
claim any right of being heard before the order of cancellation was
issued.
The appellants’ appointment was made under U.P. Basic
(Teachers) Services Rules, 1981 (hereinafter shall be referred as
"Rules") framed under U.P. Basic Education Act, 1972. Rule 8 of the
said Rules prescribes academic qualifications which reads as under :-
"(1) The essential qualifications of candidates for appointment to a
post referred to in clause (a) of Rule 5 shall be as shown below
against each:
Post
Academic qualifications
(i)
Mistress of Nursery
Schools
Certificate of Teaching(Nursery) from a
recognized training institution in Uttar
Pradesh or any other training qualification
recognized by the State Government as
equivalent thereto.
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(ii)
Assistant Masters and
Assistant Mistress Junior
Basic Schools
A Bachelor’s Degree from a University
established by law in India or a Degree
recognized by the State Government as
equivalent thereto together with the training
qualification consisting of a Basic Teacher’s
Certificate, Hindustani Teacher’s Certificate,
Junior Teacher’s Certificate, Certificate of
Teaching or any other training course
recognized by the Government as
equivalent thereto:
Provided that the essential qualification for a
candidate who has passed the required
training course shall be the same which was
prescribed for admission to the said training
course.
(2) The essential qualification of candidates for appointment to a
post of Assistant Master and Assistant Mistress of Senior Basic School
for teaching Science, Mathematics, Craft or any language other than
Hindi shall be as follows :-
(i) Intermediate Examination of the Board of High School and
Intermediate Education, Uttar Pradesh, or any other examination
recognized as equivalent thereto by the State Government with
science, mathematics craft or particular language, as the case may
be, as one of the subjects in which he or she has been examined for
the purpose of such examination; and
(ii) Training qualification consisting of Basic Teacher’s Certificate,
Hindustani Teacher’s Certificate, Junior Teacher’s Certificate,
Certificate of Teaching or any other training course recognized by
Government as equivalent thereto."
The requisite qualification is High School Examination of the
Board of High School and Intermediate Education, U.P. or equivalent
qualification recognized by the State Government together with the
training qualification which consisted either one among the Basic
Teacher’s Certificate (B.T.C.), Hindustani Teacher’s Certificate,
Junior’s Teacher’s Certificate, Certificate of Teaching or any other
training course recognized by the State Government as equivalent
thereto. Thus under the Rules, the basic qualification for the post of
Asstt. Teacher, apart from the educational qualification, was the
training qualification of the Basic Teacher’s Certificate or Hindustani
Teacher’s Certificate or Junior Teacher’s Certificate or Certificate of
Teaching or equivalent training course recognized by the State
Government. It is an admitted position by both the parties that these
qualifications are required for appointment to the post of Asstt.
Teacher. It is also not the case of the appellants that the academic
qualifications were amended at the time of their appointment. Thus,
admittedly on the date of appointment, the appellants did not hold the
training qualification to be appointed to the post of Asstt. Teachers as
prescribed under Rule 8.
It is the case of the appellants that once appointed their
services could not have been cancelled, without affording them an
opportunity of being heard and giving them a chance to explain their
position.
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In the matter of S.L. Kapoor vs. Jagmohan and Ors.1980
(4) S.C.C. 379, this Court has observed that a separate showing of
the prejudice caused is not necessary and the non-observance of
natural justice is in itself a prejudice caused. The Court has relied
upon the decision given in State of Orissa vs. Ms. Binapani Dei
A.I.R. 1967 S.C. 1269 for the proposition that even if an
administrative action involves civil consequences it must observe
rules of natural justice. Mohinder Singh Gill vs. Chief Election
Commissioner, New Delhi A.I.R. 1978 S.C. 851, has also been
cited as civil consequences undoubtedly cover infraction of not
merely property or personal rights but of the civil liberties, material
deprivation and non-pecuniary damages. In its comprehensive
connotation everything that affects a citizen in his civil life inflicts a
civil consequence. The Court has also cited the observation of one of
the judges of House of Lords in Ridge vs. Baldwin 1964 A.C. 40 for
the purpose that administrative body may in a proper case be bound
to give a person who is affected by their decision an opportunity of
making representation. But all depends on whether he has some
right or interest or some legitimate expectation of which it would not
be fair to deprive him. Similarly, the Privy Council’s decision in the
Alfred Thangarajah Jaurayappah vs. W.J. Fernando 1967 (2)
A.C. 337 has also been referred to show that there are three matters
which always be borne in mind while considering whether the
principle audi alteram partem should be complied or not? First, what
is the nature of property, the office held, the status enjoyed or
services to be performed by the complainant of injustice. Secondly,
in what circumstances or upon what occasions is the person claiming
to be entitled to exercise the measure of control entitled to intervene.
Thirdly, when the right to intervene is proved, what sanctions in fact is
the latter entitled to impose upon the other. It is only upon a
consideration of all these matters that the question of the application
of the principle can properly be determined.
However, in S.L. Kapoor vs. Jagmohan and Ors (supra), this
Court has also observed as under :-
"In our view the principles of natural justice know
of no exclusionary rule dependent on whether it would
have made any difference if natural justice had been
observed. The non-observance of natural justice is itself
prejudice to any man and proof of prejudice
independently of proof of denial of natural justice is
unnecessary. It ill comes from a person who has denied
justice that the person who has been denied justice is not
prejudiced. As we said earlier where on the admitted or
indisputable facts only one conclusion is possible and
under the law only one penalty is permissible, the court
may not issue its writ to compel the observance of natural
justice, not because it is not necessary to observe natural
justice, but because courts do not issue futile writs."
In the matter of Shrawan Kumar Jha and Ors. vs. State of
Bihar and Ors. 1991 Supp. (1) S.C.C. 330, the appellants were
appointed as Asstt. Teachers and before joining they were supposed
to get their certificates and other qualifications verified from the
authorities and as per the appellants, they had joined their respective
schools. By an order dated November 2, 1988, the Dy. Development
Commissioner cancelled the appointment of the appellants because,
according to him, the Distt. Superintendent of Education had no
authority to make the appointments and the condition which was the
part of appointment order were not complied with. The Court set
aside the order of cancellation holding that it is settled that no order to
the detriment of the appellants could be passed without complying
with the rules of natural justice.
Shrawan Kumar Jha (supra) was distinguished in State of
M.P. & Ors. vs. Shyama Pardi & Ors. 1996 (7) S.C.C. 118. In this
case, the persons, not possessing the pre-requisite qualifications
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prescribed by the statutory rules, were wrongly selected. They have
completed their training and were appointed as Auxiliary Nurse-cum-
Midwife. Their services were terminated without giving any prior
notice. Holding it to be illegal, the termination was challenged before
the Service Tribunal and the order of termination was set aside as the
principle of natural justice was not followed. This Court had found in
an appeal that the original petitioners did not possess the pre-
requisite qualifications, viz., 10 + 2 with Physics, Chemistry and
Biology as subjects. The rules specifically provided that qualification
as condition for appointment to the post. Since the prescribed
qualifications had not been satisfied, the appointment and training
was per se illegal and, therefore, the Tribunal was not right in
directing their re-instatement. Shrawan Kumar’s case was
distinguished on the ground that they were not disqualified to be
appointed but they had not undergone the training and the
appointment was set aside on the ground for want of training. The
Court has drawn a distinction between the initial disqualification for
appointment and irregularity in the appointment and subsequent
training for application of the principle of natural justice.
In M.C. Mehta vs. UOI 1999 (6) S.C.C. 237, this Court has
laid down that there can be certain situation in which an order passed
in violation of natural justice need not be set aside under Article 226
of the Constitution of India. For example, where no prejudice is
caused to the person concerned interference under Article 226 is not
necessary.
In the case of Aligarh Muslim University vs. Mansoor Ali
Khan A.I.R. 2000 S.C. 2783, this Court considered the question
whether on the facts of the case the employee can invoke the
principle of natural justice and whether it is a case where, even if
notice has been given, result would not have been different and
whether it could be said that no prejudice was caused to him, if on the
admitted or proved facts grant of an opportunity would not have made
any difference. The Court referred to the decisions rendered in M.C.
Mehta vs. UOI (supra), the exceptions laid down in S.L. Kapoor’s
case (supra) and K.L. Tripathi vs. State Bank of India A.I.R.
1984 S.C. 273, where it has been laid down that not mere violation of
natural justice but de facto prejudice (other than non-issue of notice)
has to be proved. The Court has also placed reliance in the matter of
S.K. Sharma vs. State Bank of Patiala 1996 (3) S.C.C. 364 and
Rajendra Singh vs. State of M.P. 1996 (5) S.C.C. 450 where the
principle has been laid down that there must have been some real
prejudice to the complainant. There is no such thing as merely
technical infringement of natural justice. The Court has approved this
principle and examined the case of the employee in that light. In
Viveka Nand Sethi vs. Chairman, J&K Bank Ltd. and Others,
(2005) 5 SCC 337, this Court has held that the principles of natural
justice are required to be complied with having regard to the fact
situation obtaining therein. It cannot be put in a straitjacket formula.
It cannot be applied in a vacuum without reference to the relevant
facts and circumstances of the case. The principle of natural justice,
it is trite, is no unruly horse. When facts are admitted, an enquiry
would be an empty formality. Even the principle of estoppel will
apply. In another recent judgment in the case of State of U.P. vs.
Neeraj Awasthi & Others, JT 2006 (1) SC 19, while considering the
argument that the principle of natural justice had been ignored before
terminating the service of the employees and, therefore, the order
terminating the service of the employees was bad in law, this Court
has considered the principles of natural justice and the extent and the
circumstances in which they are attracted. This Court has found in
Neeraj Awasthi’s case (supra) that if the services of the
workmen are governed by the U.P. Industrial Disputes, they are
protected under that law. Rules 42 and 43 of the U.P. Industrial
Disputes Rules lay down that before effecting any retrenchment the
employees concerned would be entitled to notice of one month or in
lieu thereof pay for one month and 15 days wages for each
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completed year of service by way of compensation. If retrenchment
is to be effected under the Industrial Disputes Act, the question of
complying with the principles of natural justice would not arise. The
principles of natural justice would be attracted only when the services
of some persons are terminated by way of a punitive measure or
thereby a stigma is attached. Applying this principle, it could very
well be seen that discontinuation of the service of the appellants in
the present case was not as a punitive measure but they were
discontinued for the reason that they were not qualified and did not
possess the requisite qualifications for appointment.
In the present case, the appellants’ case fall within the
exception laid down in S.L. Kapoor’s case (supra) and other
supporting cases, as admittedly, the appellants were not qualified and
they did not possess the B.T.C. or Hindustani Teacher’s Certificate or
Junior Teacher’s Certificate or Certificate of Teaching or certificate of
any other training course recognized by the State Government as
equivalent thereto at the time of their initial appointment. In view of
the basic lack of qualifications, they could not have been appointed
nor their appointment could have been continued. Hence the
appellants did not hold any right over the post and therefore no
hearing was required before the cancellation of their services. In the
present case, the cancellation order has been issued within a very
short span of time giving no probability for any legitimate expectation
to the appellants regarding continuation of their service. There was
no separate appointment order issued in favour of the appellants but
the memorandum dated 19.6.85 wherein the list of selected
candidates was published, provided that all the selected candidates
must join their respective schools/colleges within 15 days and from
this the nature of appointment made cannot be ascertained.
Moreover, the cancellation order itself gives an opportunity that if they
do hold and possess the B.T.C. qualification along with intermediate
qualification, they may contact and get the same verified on 14.8.85
by the appointing authority and they may bring this to the notice of the
concerned authorities. The copy of the order of cancellation was also
sent to the Principal concerned of the institution with the remarks that
he should relieve Urdu teacher with immediate effect if he did not
possess the certificate of passing the examination of intermediate
and B.T.C.; and, if he possessed these certificates he should submit
the same to the office of the District Basic Education Officer,
Muzaffarnagar. Therefore, it is apparent that any person having the
basic qualification for the appointment can produce it before the
concerned official so that immediate steps can be taken with regard
to the order of appointment cancellation.
In our opinion, on the above facts no prejudice has been
caused to the appellants by not serving notice of giving hearing
before the order of cancellation was issued.
The contention of the learned counsel for the appellants is that
State by various orders had given equivalence to the degree of
Moallium-e-Urdu granted by Jamia Urdu, Aligarh with that of Basic
Teacher’s Certificate, is not correct. In Government Order dated
28.1.85 the Governor was pleased to approve the candidates in State
services who qualified Moallium-e-Urdu granted by Jamia Urdu,
Aligarh and who got experience of teaching Urdu at Higher
Secondary Schools. This order did not provide for equivalence of
Moallium-e-Urdu granted by Jamia Urdu, Aligarh, to that of B.T.C.. In
another order dated 28.10.88 issued by the Government, which was
clarificatory in nature, to all heads of departments and Chief of
Officials of U.P. Karmik Anubhag, directed that the candidates who
have got degree of Moallium-e-Urdu granted by Jamia Urdu, Aligarh
and who had experience of teaching Urdu at Higher Secondary levels
may be appointed in State services. This also does not indicate the
equivalence of Moallium-e-Urdu granted by Jamia Urdu, Aligarh to
that of B.T.C. The aforesaid two orders only indicate that the persons
who are having degree of Moallium-e-Urdu granted by Jamia Urdu,
Aligarh, can be appointed in the State services. The orders do not
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equate the degree of Moallium-e-Urdu granted by Jamia Urdu,
Aligarh to that of Basic Teacher’s Certificate, Hindustani Teacher’s
Certificate, Junior Teacher’s Certificate, Certificate of Teaching or any
other training course, indicated in the Rule. As far as the training is
concerned there is no equivalence of the Certificate of Moallium-e-
Urdu. It is for the first time by Order dated 13.9.94 the Government
issued an order whereby the Governor granted a sanction that
Moallium-e-Urdu degree for teaching Urdu in Junior / Senior basic
schools is equivalent to B.T.C.. It is settled law that the qualification
should have been seen which the candidate possessed on the date
of recruitment and not at a later stage unless rules to that regard
permit it. The minimum qualification prescribed under Rule 8 should
be fulfilled on the date of recruitment. Equivalence of degree of
Moallium-e-Urdu, Jamia Urdu Aligarh with that of B.T.C. in the year
1994 would not entail the benefit to the appellants on the date they
were appointed. The appellants could not have been appointed to
the post of Asstt. Teachers without having training required under
Rule 8. That being the case, the appointments of the appellants were
de hors the Rules and could not be treated to be continued. For the
aforesaid reasons, we do not find any substance in the appeals and
are, accordingly, dismissed. However, in the circumstances of the
case, there shall be no order as to costs.
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