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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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