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2016 DIGILAW 253 (JK)

Shabina Mustaq v. Abidah Khanam

2016-05-09

B.S.WALIA, DHIRAJ SINGH THAKUR

body2016
JUDGMENT : DHIRAJ SINGH THAKUR, J. 1. The present Letters Patent Appeal has been preferred against the judgment and order dt. 19.3.2015, passed by the writ court in SWP No.937/2014. 2. Briefly stated, the material facts are as under: 3. An advertisement notice dt. 1.8.2012 was issued by the Chief Education Officer, Ramban, inviting applications from the eligible candidates for engagement as ReT, inter alia for one such post in Government Primary School, Harrwari. A tentative panel was prepared by the Zonal Education Officer, Banihal, wherein the appellant was shown at SI.No.1, Subreen Kousar at SI.No.2 and Abidah Khanam, respondent No.1, herein at SI.No.3. 4. Aggrieved of the tentative panel, objections were fiied on the ground that the selection ought to have been made in terms of the Government Order No.288 of 2009, dated 8.4.2009, on habitation basis. 5. It appears that the Chief Education Officer, Ramban-respondent No.5, constituted an Enquiry Committee, to submit a report as to whether the selection ought to have been made only from habitation Harrwari in terms of the aforementioned Government order. 6. The Enquiry Committee submitted its report dt. 5.9.2013, suggesting that the selection should be confined to habitation Harrwari, in as much as, it was more than one km away from other habitations of village Bohirdar and had population of more than 300 souls. The said report was forwarded to the Director School Education, Jammu, by the Chief Education Officer concerned seeking further directions in the light of the said report prepared by the Enquiry Committee. 7. It appears that the Joint Director, Directorate of School Education-respondent No.4, herein, without waiting for the directions from the Directorate office, issued an order dt. 12.10.2013, directing the Chief Education Officer, Ramban, to re-draw the panel of GUPS Harrwari. Accordingly, an order dt. 21.2.2014, came to be passed appointing one Shabina Mushtaq as ReT in GUPS Harrwari. 8. Faced with this situation, respondent No.1 herein-Abidah Khanam, preferred SWP No.937/2014, which was allowed by the writ court keeping in view the report of the Enquiry Committee and directed that the selection be confined to only such candidates who belong to habitation Harrwari. It is against this order, the present appeal has been preferred. 9. 8. Faced with this situation, respondent No.1 herein-Abidah Khanam, preferred SWP No.937/2014, which was allowed by the writ court keeping in view the report of the Enquiry Committee and directed that the selection be confined to only such candidates who belong to habitation Harrwari. It is against this order, the present appeal has been preferred. 9. The main plank of the argument of the learned counsel for the appellant was that the Committee constituted by the official respondents had conducted the enquiry and submitted- its report without giving any opportunity to the appellant and that, in case, such an opportunity had been given, the appellant would have highlighted the fact that the population certificate issued earlier by the Tehsildar Banihal dt. 7.9.2012, in favour of the candidates had to be treated as cancelled. 10. It was further urged that the Zonal Education Officer, Banihal, in his communication dt. 9.7.2013, addressed to the Chief Education Officer, Ramban, had clearly submitted that the selection was based on revenue village basis and not on habitation basis and the candidate with highest merit obtained on revenue village basis was placed at S.No.1, in as much as, there was no clear cut habitation in Revenue Village Neel because of the scattered population and Khait bataie. 11. Having considered the argument addressed at the Bar and having gone through the judgment and order impugned as also the relevant records, we feel that the Committee constituted by the Chief Education Officer, had submitted a detailed report highlighting the fact that Harrwari qualified as a separate habitation in terms of Government Order No.288 of 2009, on the basis of twin factors of population and distance. 12. Counsel for the appellant, in fact, has failed to produce any material on record either before the writ court or before us which could prove to the contrary that habitation Harrwari did not have the population of more than 300 souls and that it was not situate at a distance of one km from other habitations of village Bohirdar. 13. The only material which was placed on record was the Zonal Education Officer, Banihal's communication dt. 9.7.2013, suggesting that there was no clear-cut habitation in Revenue village Neel because of the scattered population and Khait bataie system which, however, cannot be relied upon in view of the clear-cut finding of the Enquiry committee. 13. The only material which was placed on record was the Zonal Education Officer, Banihal's communication dt. 9.7.2013, suggesting that there was no clear-cut habitation in Revenue village Neel because of the scattered population and Khait bataie system which, however, cannot be relied upon in view of the clear-cut finding of the Enquiry committee. Other than this document, the appellant has failed to produce any document on record which could suggest the non-applicability of the Government Order No.288 of 2009 on the twin aspects of the population being less than 300 souls and the distance of one km from other habitations. 14. In our opinion, thus, it would be a useless formality to set aside the judgment and order impugned only on this ground that the appellant had not been given an opportunity of being heard by the concerned authority. Even if the plea of the appellant is accepted, the ultimate result would remain the same and would be a futile exercise. 15. The Apex Court while dealing with the principle of 'useless formality' in the case reported as Aligarh Muslim University & Ors v. Mansoor AM Khan, (2000) 7 SCC 529 , held that where only one conclusion is possible in view of the fact situation prevailing or in terms of the legal consequences, issuance of a direction for providing of an opportunity of being heard would be a futile exercise. Placing reliance on an earlier judgment in the case reported as S.L. Kapoor v. Jagmohan and Others, (1980) 4 SCC 379 , the Apex Court in paragraphs 23 and 35 of the judgment held as under:- "23. Chinnappa Reddy, J. in S.L Kapoor case laid down two exceptions (at SS 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. 35. Thus, in our view, in the above peculiar circumstances, the only conclusion that can be drawn is that even if Mr. Of course, this being an exception, great care must be taken in applying this exception. 35. Thus, in our view, in the above peculiar circumstances, the only conclusion that can be drawn is that even if Mr. Mansoor AH Khan had been given notice and he had mentioned this fact of job continuance in Libya as a reason that would not have made any difference and would not have been treated as a satisfactory explanation under Rule 5(8)(i). Thus, on the admitted or undisputed facts, only one view was possible. The case would fall within the exception noted in S.L. Kapoor case. We, therefore, hold that no prejudice has been caused to the officer for want of notice under Rule 5(8)(i). We hold against Mr. Mansoor AH Khan under Point 5." 16. Again in Karnataka SRTC v. S.G. Kotturappa, (2005) 3 SCC 409 , while dealing with the issue as to under what circumstances, the principles of natural justice are required to be complied with, the Apex Court held as under:- "The question as to what extent, principles of natural justice are required to be complied with would depend upon the fact situation obtaining in each case. The principles of natural justice cannot be applied in vacuum. They cannot be put in any straitjacket formula. The principles of natural justice are furthermore not required to be complied with when it will lead to an empty formality. What is needed for the employer in a case of this nature is to apply the objective criteria for arriving at the subjective satisfaction. If the criteria required for arriving at an objective satisfaction stands fulfilled, the principles of natural justice may not have to be complied with, in view of the fact that the same stood complied with before imposing punishments upon the respondents on each occasion and, thus, the respondents, therefore, could not have improved their stand even if a further opportunity was given." 17. This issue came up for consideration before the Apex Court again in Punjab National Bank v. Manjeet Singh, (2006) 8 SCC 647 , wherein it was held as under:- "The principles of natural justice were also not required to be complied with as the same would have been an empty formality. The court will not insist on compliance with the principles of natural justice in view of the binding -nature of award. The court will not insist on compliance with the principles of natural justice in view of the binding -nature of award. Their application would be limited to a situation where the factual position or legal implication arising thereunder is disputed and not where it is not in dispute or cannot be disputed. If only one conclusion is possible, a writ would not issue only because there was a violation of the principles of natural justice." 18. Again in Ashok Kumar Sonkar v. Union of India & ors, (2007) 4 SCC 54 , the Apex Court while dealing with the issue of useless formality' held as under:- "A court of law does not insist on compliance with a useless formality. It will not issue any such direction where the result would remain the same, in view of fact situation prevailing or in terms of legal consequences. This was a case where the appellant before the Apex Court was not qualified on the cut-off date. Being ineligible to be considered for appointment, it would be a futile exercise to give him an opportunity of being heard." 19. This principle laid down by the Apex Court was further followed in the case of State of Chattisgarh v. Dhirjo Kumar Sengar, (2009) 13 SCC 600 . 20. In that view of the matter, we cannot persuade ourselves to take a view different from one taken by the learned Single Judge. 21. This appeal is, accordingly, found to be without merit and is dismissed.