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Madhya Pradesh High Court · body

2008 DIGILAW 45 (MP)

Rakesh Kumar Sharma v. State of M. P.

2008-01-10

S.K.GANGELE

body2008
ORDER 1. Petitioner has filed this petition challenging the order, Annexure P-1 dated 3.6.2006. By the aforesaid order absorption of the petitioner on the post of Principal, Government Higher Secondary School (10+2) has been cancelled. 2. Petitioner was appointed initially as Principal, Maharshi Ram Sumeran Das Higher Secondary School, Sahasram, District Sheopur vide order dated 15.6.1990. At that time the school was a private school. Copy of the order of appointment has been filed as Annexure P-2. It is mentioned in the order of appointment that the petitioner would obtain a degree in M.A. and also degree in B.Ed within five years. Thereafter, the petitioner obtained a degree in M.A. in the year of 1993 and degree in B.Ed in the year of 1994. The school was taken over by the Government on 17.9.1997. Thereafter, the petitioner was absorbed on the post of Principal vide order dated 26.12.1998. Copy of the order has been filed as Annexure P-3. Subsequently, some complaints were filed against the petitioner before the Lokayukt complaining about the eligibility of the petitioner being absorbed as Principal. A preliminary inquiry was conducted against the petitioner and during that inquiry it was found that the petitioner was not eligible to be absorbed as Principal of Higher Secondary School (10+2) because he did not have the requisite qualification. Hence, vide the impugned order his absorption as Principal has been cancelled and he has been absorbed as Upper Division Teacher. It is an admitted fact that no opportunity of hearing had been given to the petitioner before passing the impugned order Annexure P-1. 3. Respondents in the return stated that the petitioner was initially appointed on the post of Principal of Non-Government Higher Secondary School, although he had no requisite qualifications for the post it has further been stated that after absorption of the petitioner certain complaints had been received and after inquiry it was found that as per the circular issued by the Commissioner dated 26.6.1995 qualifications for absorption on the post of Principal, Higher Secondary School (10+2) was Posts graduate with atleast second division and also a degree of B.Ed. Because the petitioner passed Post-graduate degree in third division and he did not have the requisite teaching experience, hence he was not entitled for absorption. Because the petitioner passed Post-graduate degree in third division and he did not have the requisite teaching experience, hence he was not entitled for absorption. Consequently, absorption of the petitioner as Principal, Higher Secondary School (10+2) cancelled and he has been ordered to be absorbed as Upper Division Teacher. 4. Learned counsel for the petitioner has submitted that the petitioner had the requisite qualification for absorption as Principal and without giving any opportunity of hearing the impugned order has been passed, hence the impugned order is against the law. In support of his contentions learned counsel relied upon Gajanan L. Pernekar v. State of Goa and another [ (1999)8 SCC 378 ], Canara Bank v. V.K. Awasthy [ (2005)6 SCC 321 ], Shekhar Ghosh v. Union of India and another [ (2007)1 SCC 331 ], and Division Bench judgment of this Court in Hari Narayan Sakya v. State of M.P. and others [ 2000(3) MPLJ 351 ]. 5. Contrary to this learned Deputy Advocate General has submitted that the petitioner did not have the requisite qualification for the post of Principal, Higher Secondary School (10+2) at the time of absorption, hence his absorption has rightly been cancelled. Apart from this learned Deputy Advocate General has submitted that in the circumstances there was no necessity to issue show cause notice because the petitioner was lacking in primary qualifications for the post of Principal. 6. Undisputed facts of the case are that the petitioner was appointed as Principal vide order dated 15.6.1990 on the post of Principal in a school named as Maharshi Ram Sumeran Das Government Higher Secondary School, Sahasram, District Sheopur. At that time the school was managed by a society named as Laxminarayan Shiksha Prasar Samiti, Morena. It is mentioned in the order of appointment of the petitioner that he had to obtain a degree in M.A. and also a degree in B.Ed within a period of five years. Thereafter, the petitioner obtained degree in M.A. in the year 1993 and degree in B.Ed in the year 1994. The school alongwith its staff was taken over by the Government w.e.f. 17.9.1997. Thereafter, the petitioner was absorbed on the post of Principal, Government Higher Secondary School (10+2) vide order dated 26.12.1998. Thereafter, the petitioner obtained degree in M.A. in the year 1993 and degree in B.Ed in the year 1994. The school alongwith its staff was taken over by the Government w.e.f. 17.9.1997. Thereafter, the petitioner was absorbed on the post of Principal, Government Higher Secondary School (10+2) vide order dated 26.12.1998. The aforesaid order of absorption of the petitioner has been cancelled vide order Annexure P-1 dated 3.6.2006 on the ground that the petitioner did not have the requisite qualification at the time of absorption on the post of Principal, Government Higher Secondary School (10+2). 7. The School Education Department issued a circular dated 26.6.1995, copy of which has been filed as Annexure R-1, with regard to absorption of staff after taking over of the institution by the Government. It is mentioned in the circular that for absorption on the post of Principal, Higher Secondary School the person concerned should possess Postgraduate degree atleast in second class with B.Ed. The State Government also framed Recuitment Rules named as Madhya Pradesh Education Service (School Branch) Recuitment and Promotions Rules, 1982. As per Schedule 3 of rule 8 thereof the minimum qualification for the post of Principal, Higher Secondary School is Post-graduate degree in Science, Arts, Commerce with second division and B.Ed and also teaching experience of five years in Higher Secondary School. 8. From the aforesaid Recruitment Rules it is clear that the minimum qualification for the post of Principal, Higher Secondary School is Postgraduate with second division and B.Ed and the same is the qualification prescribed as per the circular dated 26.6.1995 issued by the School Education Department. Admittedly, the petitioner obtained degree in M.A. with third division, hence the petitioner had no requisite qualifications for the post of Principal, Higher Secondary School. As the petitioner did not have the requisite minimum qualification for the post of Principal, in my opinion, absorption of the petitioner on the post of Principal, Higher Secondary School was per se illegal. 9. In the aforesaid facts of the case the argument advanced by the learned counsel for the petitioner that the petitioner was not given any opportunity of hearing cannot be accepted. 10. It is an admitted position of law that observance of rule of natural justice has to be followed in the circumstances if the order involves civil consequences. 9. In the aforesaid facts of the case the argument advanced by the learned counsel for the petitioner that the petitioner was not given any opportunity of hearing cannot be accepted. 10. It is an admitted position of law that observance of rule of natural justice has to be followed in the circumstances if the order involves civil consequences. However, the exception of the observance of rule of natural justice has been carved out by Hon'ble the Supreme Court in various judgment in the facts that if a person lacks the basic qualification for the post then the observance of rule of natural justice is not necessary and the exception has been termed as 'useless formality' theory. The Hon'ble the Supreme Court in Aligarh Muslim University and others v. Mansoor Ali Khan [ (2000)7 SCC 529 ], has discussed in detail the aforesaid aspect and held as under : "22. In M.C. Mehta [ (1999)6 SCC 237 ], it was pointed out that at one time, it was held in Ridge v. Baldwin [1964 AC 40:(1963)2 All ER 66 (HL)], that breach of principles of natural justice was in itself treated as prejudice and that no other "de facto" prejudice needed to be proved. But, since then the rigour of the rule has been relaxed not only in England but also in our country. In SL Kapoor v. Jagmohan [ (1980)4 SCC 379 ], Chinnappa Reddy, J. followed Ridge v. Baldwin (supra), and set aside the order of supersession of the New Delhi Metropolitan Committee rejecting the argument that there was no prejudice though notice was not given. The proceedings were quashed on the ground of violation of principles of natural justice. But even in that case certain exceptions were laid down to which we shall presently refer. 23. Chinnappa Reddy, J. in SL Kapoor case (supra), laid down two exceptions (at SCC p.395) namely, if upon admitted or indisputable facts only one conclusion was possible, then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice of course, this being an exception, great care must be taken in applying this exception. 24. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice of course, this being an exception, great care must be taken in applying this exception. 24. The principle that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. In K.L. Tripathi v. State Bank of India [ (1984)1 SCC 43 : 1984 SCC (L&S) 62], Sabyasachi Mukharji, J. (as he then was) also laid down the principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed, quoting Wade's Administrative Law (5th Edn., pp.472-75), as follows. (SCC p.58, para 31) : "(I)t is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent .... There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice, the requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the Tribunal is acting, the subject-matter to be dealt with, and so forth." Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in State Balik of Patiala v. S.K. Sharma [ (1996)3 SCC 364 :1996 SCC (L&S) 717]. In that case, the principle of "prejudice" has been further elaborated. The same principle has been reiterated again in Rajendra Singh v. State of M.P. [(1965)5 SCC 460]. 25. The "'useless formality" theory, it must be noted, is an exception. Apart from the class of cases of "admitted or indisputable facts leading only to one conclusion" referred to above there has been considerable debate on the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M. C. Mehta [ (1999)6 SCC 237 ], referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J. and Straughton, LJ. etc. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M. C. Mehta [ (1999)6 SCC 237 ], referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J. and Straughton, LJ. etc. in various cases and also views expressed by leading writers like Profs. Garner, Craig, de Smith, Wade, D.H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the Court will be prejudging the issue. Some others have said that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via media rules. We do not think it necessary in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case. 26. It will be sufficient, for the purpose of the case of Mr. Mansoor Ali Khan to show that his case will fall within the exceptions stated by Chinnappa Reddy, J. in S.L. Kapoor v. Jagmohan [ (1980)4 SCC 379 ], namely. that on the admitted or indisputable facts, only one view is possible. In that event no prejudice can be said to have been caused to Mr. Mansoor Ali Khan though notice has not been issued." 11. The Hon'ble Supreme Court in Canara Bank v. V.K. Awasthy [ (2005)6 SCC 321 ]. has held that even a post decisional hearing in certain circumstances can cure the defect of not giving opportunity of predecisional hearing and the Hon 'ble Supreme Court has held as under: "In some cases it has been observed that where grant of opportunity in terms of principles of natural justice do not improve the situation, "useless formality theory" can be pressed into service. However, it is not necessary to go into "useless formality theory" in detail in view of the fact that no prejudice has been shown. Unless failure of justice is occasioned or that it would not be in public interest to do so in a particular case, the Supreme Court may refuse to grant relief to the employee concerned. It is to be noted that legal formulations cannot be divorced from the fact situation of the case. Personal hearing was granted by the appellate authority, though not statutorily prescribed. It is to be noted that legal formulations cannot be divorced from the fact situation of the case. Personal hearing was granted by the appellate authority, though not statutorily prescribed. In a given case post-decisional hearing can obliterate the procedural deficiency of a pre-decisional hearing." 12. The petitioner has not filed any document controverting the fact that he has not obtained degree in M.A. in third division. Even though the counsel for petitioner has failed to produce any document before this Court that the petitioner obtained M.A. degree in second division. In such circumstances, undisputed fact is that the petitioner passed the M.A. degree in third division and consequently he was not entitled to be absorbed on the post of Principal, Higher Secondary School (10+2) because he did not have the requisite qualification for the post, in the aforesaid facts and circumstances of the case even if no opportunity of hearing was given to the petitioner on this ground the impugned order cannot be quashed because giving opportunity of hearing to the petitioner would mean a 'useless formality'. 13. Consequently, I do not find any merit in this petition. It is hereby dismissed. No order as to cost.