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2005 DIGILAW 86 (JK)

Bashir Ahmad Malik v. State Of J. &K.

2005-03-28

R.C.GANDHI

body2005
(Oral) 1. Petitioner by means of this petition seeks to quash order No. LIT/RT/F-29/28313-17 dated 26-02-2004 passed by respondent No. 4 Chief Education Officer, Baramulla, whereby the petitioner has disengaged as Rehbar-i-Taleem and in his place respondent No.6 Manzoor Ahmad Hazari has been appointed. 2. Petitioner, a handicapped, was engaged as Rehbar-i-Taleem vide order No. 1169-70 of 2002 dated: 6.2.2002 and posted in Girls Primary School, Pringal-Uri. He worked in such capacity for over two years. Respondent No.6 filed a civil suit titled Manzoor Ahmad Hazari vs. State and others before the court of Munsiff, Boniyar-Uri challenging the appointment of the petitioner. The Civil Court issued interim orders dated: 5.8.2003 and 29.04.2003 for consideration of the plaintiff/respondent No.6 herein. The respondents considered the case pursuant to the direction and having found respondent No.6 as meritorious appointed him as Rehbar-i-Taleem and disengaged the services of the petitioner vide impugned order dated: 26.02.2004. This order was challenged by the petitioner by means of a civil suit before the Sub-Judge, Baramulla. The suit has been dismissed. The respondent No. 6 also has withdrawn the suit after he came to be appointed vide impugned order. 3. The petitioner has challenged the impugned order on the ground that the principle of natural justice has not been complied with, providing him opportunity of being heard before his disengagement as his appointment does not suffer from any illegality. 4. Respondents have filed the reply stating therein that three candidates namely (i) Abdul Rashid, (ii) Manzoor Ahmad Hazari, respondent No.6 and (iii) Bashir Ahmad Malik petitioner, applied for selection as Rehbar-i-Taleem. They were considered. Abdul Rashid secured 1st place in the merit whereas Manzoor Ahmad Hazari, respondent No.6 and Bashir Ahmad Malik secured 2nd and 3rd place respectively. The Zonal Education Officer recommended the case of Bashir Ahmad Malik despite his 3rd place in merit and was appointed. 5. Heard learned counsel for the parties and perused the record. 6. The merit position as stated by the respondents is not disputed by the petitioner. Petitioner is at No.3 of the merit list. Manzoor Ahmad Hazari, respondent No.6 is at 2nd position whereas the petitioner is at 3rd position.. The Deputy Commissioner in compliance to the interim direction of the Court passed in civil suit has directed to appoint the meritorious candidate. Petitioner in consequence thereof being lesser in merit has been disengaged. Petitioner is at No.3 of the merit list. Manzoor Ahmad Hazari, respondent No.6 is at 2nd position whereas the petitioner is at 3rd position.. The Deputy Commissioner in compliance to the interim direction of the Court passed in civil suit has directed to appoint the meritorious candidate. Petitioner in consequence thereof being lesser in merit has been disengaged. The approach of the respondent is justified to appoint meritorious candidate. The petitioner cannot be permitted to get the benefit of illegal favour done to him by the Zonal Education Officer. The meritorious candidates have the first right of consideration and engagement. The illegality committed by the respondents has been rectified and undone. 7. The plea of the learned counsel for the petitioner that the principles of natural justice have not been observed and complied with appears to be not having any substance. To appreciate the plea of the learned counsel it is to be seen as to whether in such a case where the seeker of justice is the beneficiary of an illegal act of the authorities of the State, the principle of natural justice are required to be observed. The petitioner is the beneficiary of his illegal appointment. A public servant seeking observance of principles of natural justice must make out before the court that his legal right has been violated. If any favour is done by committing illegality or violating the law, such action does not flow any legal right. The beneficiary of such favour cannot be heard of making a grievance that his legal right had been violated and the principles of natural justice would have been observed. The principles of natural justice were required to be observed where legal right of the aggrieved party is violated and that right is decided or taken away at his back without hearing him. The right which the petitioner is asserting has flown from illegal act. In the present case even if the principle of natural justice are observed by affording opportunity of being heard, the petitioner would not be in a position to improve his merit as the conclusion would be the same. Dealing with such a situation, the Apex Court in case titled: S.L .Kapoor vs. Jagmohan reported in AIR 1981 SC. In the present case even if the principle of natural justice are observed by affording opportunity of being heard, the petitioner would not be in a position to improve his merit as the conclusion would be the same. Dealing with such a situation, the Apex Court in case titled: S.L .Kapoor vs. Jagmohan reported in AIR 1981 SC. 136 has observed as: Whether the failure to observe natural justice does at all maters if the observance of natural justice would have made no difference when the admitted or indisputable facts speak for themselves. 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 courts do not issue futile writs.� 8. The same view has been reiterated by the Apex Court in case titled M.C. Mehta vs. Union of India reported in AIR 1999 SC. 2583 observing as: It is therefore, clear that if on the admitted or indisputable factual position, only one conclusion is possible and permissible, the Court need not issue a writ merely because there is violation of principles of natural justice.� For the aforesaid reasons, the petition being devoid of merit is dismissed.