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Madhya Pradesh High Court · body

2013 DIGILAW 1308 (MP)

State of M. P. v. Ramji Lal Kushwah

2013-10-29

G.D.SAXENA, S.K.GANGELE

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Judgment: 1. Heard on I.A. No. 660/2012, an application for condonation of delay. There is delay of 249 days in filing the appeal. Looking to the facts of the case, application (I.A. No. 660/2012) is allowed and delay in filing the appeal is condoned. 2. Heard on merits. 3. This appeal has been filed by the appellants against the order dated 05-04-2011 passed in W.P. No. 6137/2009. The Writ Court quashed the order dated 06-11-2009 passed by the Commissioner, School Education. By the aforesaid order, the authority has held that the respondent was not eligible for absorption because he did not have the educational qualification of 5th Class pass, which is fixed as necessary qualification for Class IV employee. 4. The Writ Court allowed the petition on the ground that the order was passed without hearing the respondent, hence, the order was per se illegal. 5. The respondent did not plead in the petition that he had qualification of 5th Class pass at the time of absorption. As per the order, it was a necessary qualification and the respondent did not have the aforesaid qualification at the time of absorption. In such circumstances, in our opinion, even though, no opportunity of hearing was provided to the respondent, on this ground alone the order impugned could not be quashed because it would amount the useless formality has held by the Hon'ble Supreme Court in Aligarh Muslim University Vs. Mansoor Ali Khan - (2000) 7 SCC 529 . In the aforesaid judgment, Hon'ble Supreme Court held that under certain circumstances if the rule of natural justice has not been complied with, then the order could not be quashed if on admitted facts the conclusion would be the same. 6. In the present case, the respondent has not produced any evidence neither he pleaded that he had qualification of 5th Class. In such circumstances, even if the opportunity of hearing is provided to the respondent, no purpose would be served because as per the Rules, minimum qualification for Class IV employee at the relevant time was passing of 5th Class examination. Admittedly, when the respondent did not have had the aforesaid qualification, he could not be absorbed. Hence, in our opinion, the order passed by the competent authority is in accordance with law. 7. Looking to the aforesaid facts of the case, the appeal is allowed. The impugned order dt. Admittedly, when the respondent did not have had the aforesaid qualification, he could not be absorbed. Hence, in our opinion, the order passed by the competent authority is in accordance with law. 7. Looking to the aforesaid facts of the case, the appeal is allowed. The impugned order dt. 5.4.2011 passed by the Writ Court is hereby quashed. It is further held that the salary, which was paid to the respondent in pursuance of his service, should not be recovered from him. The respondent is at liberty to submit certificate of his passing Class 5th examination before the authority and in such circumstances, the authority shall recall the order. No order as to costs.