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Kulbir Singh Rathi v. The District Inspector Of Schools Moradabad & Another - WRIT - A No. 16364 of 2007  RD-AH 5963 (3 April 2007)
Court No. 39
Civil Misc. Writ Petition No. 16364 of 2007
Kulbir Singh Rathi
State of U.P and others
Petitioner has approached this Court questioning the validity of the order dated 27.01.2007 passed by District Inspector of Schools, Moradabad canceling the Lecturer's Grade which was accorded to petitioner on the ground that petitioner does not fulfil requisite qualification for being accorded said grade of Lecturer's, and earlier order sanctioning Lecturers grade was on account of concealment of information by the Principal and further petitioner is entitled for selection grade in L.T. Grade w.e.f.18.11.2003.
Brief background of the case is that in the District of Moradabad there is recognized institution know as Kisan Inter College, Jahangirpur, Moradabad. Said institution is governed by the provisions of U.P. Intermediate Education Act 1921. In the said institution petitioner claims that he was appointed as Physical Training Instructor (P.T.I) in C.T. Grade vide order dated 17.11.1988. Services of petitioner as C.T. Grade teacher was regularized vide letter dated 30.07.1996 of Deputy Director of Education 12th Region Moradabad, w.e.f. 06.04.1991. Petitioner has contended and same reflected from the service book also that salary of petitioner was fixed in L.T. Grade w.e.f. 18.11.1988, vide letter dated 21.08.1999 of District Inspector of Schools Moradabad. Petitioner has contended that on 17.05.2006 the District Inspector of Schools issued letter dated 17.05.2006 directing the Management to submit details of teaching Class XI and XII by the petitioner and submit its report with recommendation so that petitioner's claim may be considered. Petitioner has contended that on 18.09.2006 he was accorded Lecturer's grade and designation of Lecturer with effect from 18.09.2003. Petitioner has contended that pursuant thereto his salary was fixed in Lecturer Grade and entry was also made but prior to submission of salary bill objection has been raised and thereafter order dated 27.01.2007 has been passed canceling the Lecturer's Grade which was accorded to the petitioner. At this juncture present writ petition has been filed.
Supplementary affidavit has also been filed annexing therein copy of Government Order dated 24.05.2004 and for the proposition that power of review was not there.
Sri K.A. Ansari, Advocate, contended with vehemence that Lecturer's pay scale and designation had rightly been accorded to the petitioner and the District Inspector of Schools clearly erred in law in cancelling the same and that to without providing opportunity of hearing to him.
Learned Standing counsel on the other hand contended that from the own showing of the petitioner, petitioner does not fulfill qualification prescribed for Lecturer of Physical Education (Physical Training Instructor) and once this is admitted position then providing of opportunity of hearing is nothing but empty formality, as such writ petition deserves to be dismissed.
After respective arguments have been advanced, factual position which is emerging is to the effect that educational qualification of petitioner is B.A., C.P.Ed / D.P.Ed. Petitioner was appointed as Physical Training Instructor in C.T. Grade vide order dated 17.11.1988 and his services as C.T. Grade teacher was regularised w.e.f 06.04.1991 vide order 30.07.1996 of Deputy of Education 12th Region Moradabad. After completion of 10 years of service, L.T. Grade was accorded to petitioner on 18.11.1998, vide order dated 21.08.1991 passed by District Inspector of Schools Moradabad. District Inspector of Schools issued letter dated 17.05.2006 mentioning therein that Physical Education Teachers are entitled for Selection Grade of L.T. Grade or designation of Lecturer either of the two as such Management shall submit details of petitioner of teaching in Class XIth and XIIth and submit its report with recommendation. Petitioner has contended that after receiving details the District Inspector of Schools passed order 18.09.2006 mentioning therein that in pursuance of Government Order dated 24.05.2004 after completing five years of service in C.T. Grade petitioner is absorbed as L.T. Grade and thereafter as per Government Order dated 10.11.1996 as per terms and condition mentioned therein becomes entitled for payment of salary of Lecturer and designation as such vide order dated 18.09.2006 with effect from 18.09.2003 both Grade and designation was accorded.
Complaint was made qua the illegal grant of designation and pay-scale of Lecturer and then matter was re-examined and it has been found that petitioner is not at all eligible to be accorded designation and pay-scale of Lecturer and is merely entitled for selection grade in L.T. Grade, w.e.f. 18.11.2003. At this stage the relevant Government Order which holds the field of teacher of Physical Education and others, dated 28.02.1990, 25.04.2000 and the Government Order dated 24.05.2004, which deals with absorption of C.T. Grade teachers as L.T. Grade teachers is being looked into. State Government vide Government Order dated 28.02.1990 took policy decision pursuant to recommendation made by Pay Revising Committee of the year 1989 providing that all those incumbent who are teaching Arts, Physical Education, Language, Home Science, Music, Shilp Three language, painting Typing, Shorthand, and Craft subjects and who have been completed ten years service teaching class IXth and Xth and who are appointed at C.T. Grade teacher with requisite qualification then they be accorded simple pay scale of L.T Grade. Further it has also been provided for that all those L.T. Grade teachers who were appointed with requisite qualification and have completed ten years of services of teaching Class XIth and XIIth they have to be accorded Lecturers Pay-scale It has further been mentioned that in future for teaching aforesaid subjects in respect of appointment in LT Grade and as Lecturer incumbents should have to his credit apart from requisite qualification of the said grade Graduate/Post Graduate degree respectively. Thereafter Government Order dated 25.10.2000 has been issued respect of providing Lecturer's designation to incumbents who fulfil the requisite qualification of Lecturer's Grade in the said subject namely Arts, Physical Education, Language, Craft etc. It was mentioned that those teachers who are teaching Intermediate Classes since last more than ten years and are being accorded Lecturer's pay scale be accorded Lecturer's designation, subject of fulfilment of terms and conditions mentioned therein. Condition No. 4 clearly mentioned that as per conditions No. 3 of Government Order dated 28.02.1990 candidates must have Masters degree alongwith qualification prescribed for said trade . Condition No. 5 clearly mentioned that said benefit is extendable to those incumbents who are teaching class XIth and XIIth for the last ten years satisfactorily and who have received Lecturers pay scale of Rs. 1600-2660. Government orders are thus, clear and categorical. Government Order dated 24.05.2004 deals with absorption of C.T. Grade teachers into L.T. Grade teachers. By means of the same, as C.T. Grade has been declared dying cadre, relaxing the terms and conditions of absorption as prescribed in Government Order dated 18.12.1997 w.e.f 19.02.1991 all those teachers who have completed five years of satisfactory service or would be completing five years of satisfactory service are to be absorbed as L.T. Grade teacher. Apart from this no other Government Order has been produced or reliance has been placed by petitioner, as such claim of petitioner, has to be tested on the parameters of these Government Orders.
On the touch stone of the provision quoted above, as far as claim of the petitioner is concerned same is not at all acceptable for the simple reason that petitioner does not have to his credit Masters degree in the subject of Physical Education and as per condition no. 4 of Government Order dated 23.04.2000 in order to be accord designation of Lecturer holding of Masters degree is condition precedent and further it was also necessary that incumbent should have received Lecturer's pay scale. In the present case petitioner neither has his credit Master degree and neither he has ever received Lecturer's pay scale i.e. petitioner did not fulfil neither condition no. 4 nor condition no. 5 as such rightly petitioner was not at all entitled for Lecturer's pay scale or designation of Lecturer's pursuant to Government Orders dated 28.02.1990 and 25.10.2000 repectively which deals with providing of Lecturer pay-scale and designation to incumbent to teaching field Arts, Physical Education, Language, Home Science, Music, Three language, Painting Typing, Shorthand, Craft and other subjects. Petitioner has placed reliance on Government Order dated 24.05.2004. Said Government Order merely provides that condition provided in the Government Order dated 18.12.1997 stands relaxed and all those teacher who on 19.02.1991 or onward complete five years of service as C.T. Grade teacher they will be absorbed in L.T. Grade. Said Government Order is not at all in relation to grant of Lecturers pay-scale or designation of Lecturer. As far as petitioner is concerned he is not at all entitled for Lecturer's pay scale or designation. Consequently claim of petitioner lacks substance, and as petitioner was entitled for selection grade, in L.T. Grade, same has been accorded.
Petitioner has placed, much reliance on the fact that no opportunity has been provided to him. At this juncture the answer to this question can be found in the judgment of Hon'ble Apex Court, Ashok Kumar Sonker versus Union of India, reported in 2007(1) ESC 169 SC wherein Hon'ble Apex Court has taken the view that Principal of natural justice cannot be put in straight jacket formula, and Court of law does not insist on compliance of useless formality when it is admitted position that incumbent is ineligible. Paragraphs 26 to 35 of the said judgment is being quoted below:
26. It is also, however, well settled that it cannot be put any strait jacket formula. It may not be in a given case applied unless a prejudice is shown. It is not necessary where it would be futile exercise.
27. A Court of law does not insist on compliance of useless formality, it will not issue any such direction where the result would remain the same, in view of the fact situation prevailing or in terms of the legal consequences. Furthermore in this case, the selection of the appellant was illegal. He was not qualified on the cut of date. Being ineligible to be considered for appointment would have been a futile exercise to give him an opportunity of being heard.
28. In Aligarh Muslim University and others Vs. Mansoor Ali Khan (2000)7 SCC 529 the law is stated in the following terms:
"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 view expressed in regard to this theory have been elaborately considered by this Court in M.C. Mehta referred to above. This Court surveyed the view expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, LordBingham, Megarry, J and Straughton, L.J. 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 depended on the facts of a particular case."
29. In Karnatak State Road Transport Corporation and another Vs. S.G. Kottuprappa and others (2005 3 SCC 409, this Court held:
"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 any 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."
30. In Punjab National Bank and others Vs. Manjeet Singh and another (2006) 8 SCC 647, this Court opined:
" 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 on natural justice in view of the binding nature of the 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."
31. In P.D. Agrawal Vs. State Bank of India and others (2006) 8 SCC 776 this Court observed:
" The principles of natural justice cannot be put in a straitjacket formula. It must be seen in circumstantial flexibility. It has separate facets. It has in recent time also undergone a see change."
32. it was further observed:
"Decision of this Court in S.L. Kappor Vs. Jagmohan and others (1980) 4 SCC 379 whereupon Mr. Rao placed strong reliance to contended that non-observance of principles of natural justice itself causes prejudice or the same should not be read "as it causes difficulty of prejudice," cannot be said to be applicable in the instant case. The principles of natural justice, as noticed here inbefore, has undergone a sea change. In view of the decision of this Court in State Bank of Patiala & ors. Vs. S.K. Sharma (1996) 3 SCC 364 and Rajendra Singh Vs. State of M.P. (1996) 5 SCC 460 the principle of law is that some real prejudice must have been caused to the complainant. The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity. To the principal doctrine of audi alteram partem, a clear distinction has been laid down between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principal. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straitjacket formula. [See Viveka Nand Sethi Vs. Chairman, J & K Bank Ltd. and others (2005) 5 SCC 337 and State of U.P. Vs. Neeraj Awasthi and others JT. 2006 (1) SC 19. See also Mohd. Sartaj Vs. State of U.P. (2006) 1 SCALE 265]"
32. The principles of equity in a case of this nature in our opinion will have no role to play. Sympathy, as is well-known should not be misplaced.
33. In Maruti Udyog Ltd. Vs. Ram Lal and others (2005) 2 SCC 638, a Division Bench of this Court, wherein one of us was a member noticing some decision observed:
"44 While construing a statute, sympathy has no role to play. This Court cannot interpret the provisions of the said Act ignoring the binding decisions of the Constitution Bench of this Court only by way of sympathy to the workmen concerned.
45. In A Umarani Vs. Registrar, Coop. Societies this Court rejected a similar contention upon noticing the following judgments (SCC pp.131-32 para 68-70).
68. In a case of this nature this Court should not even exercise its jurisdiction under Article 142 of the Constitution of India on misplaced sympathy.
69 In Teri Oat Estates (p) Ltd. Vs. U.T. Chandigarh it is stated (SCC p 144 para 36-37).
36. We have no doubt in our mind that sympathy or sentiment by itself cannot be ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. It is further trite that despite an extraordinary constitutional jurisdiction contained in Article 142 of the Constitution of India, this Court ordinarily would not pass an order which would be in contravention of a statutory provision.
37. As early as in 1911, Farewell, L.J. in Latham Vs. Richard Johnson & Nephew Ltd. observed (All ER p 123 E).
We must be very careful not to allow our sympathy with the infant plaintiff to affect out judgment. Sentiment is a dangerous will on the wisp to take as a guide in the search for legal principles.
70. Yet again, recently in Ramakrishna Kamat Vs. State of Karnataka this Court rejected a similar plea for regularisation of service stating (SCC pp 377-78 para-7).
We repeatedly asked the learned counsel for the appellants on what basis or foundation in law the appellants made their claim for regularisation and under what rules their recruitment was made so as to govern their service conditions. They were not a position to answer except saying that the appellants have been working for quite some time in various schools started pursuant to resolutions passed by Zila Parishads in view of the government orders and that their cases need to be considered sympathetically. It is clear from the order of the learned Single Judge and looking to the very directions given a very sympathetic view was taken. We do not find it either just or proper to show any further sympathy in the given facts and circumstances of the case. While being sympathetic to the persons who come before th4e Court the Courts cannot at the same time be unsympathetic to the large number of eligible persons waiting for a long time in a long queue seeking employment"
34. It is not a case where appointment was irregular. If an appointment is irregular, the same can be regularized. The court may not take serious note of an irregularity within the meaning of the provisions of the Act. But if an appointment is illegal, it is non est in the eye of law, which renders the appointment to be a nullity.
35. We have noticed hereinbefore that in making appointment of the appellant the provisions of Articles 14 and 16 of the Constitution and statutory rules were not complied with. The appointment, therefore, was illegal and in that view of the matter, it would be wholly improper for us to invoke out equity jurisdiction.
36. Mr. Shekhar is also not correct in contending that the University had supported the case of the appellant. It was categorically stated by the University in its counter affidavit that the writ petition being devoid of any merit should be dismissed. In any event we have ourselves taken into consideration the merit of the matter and in that view of the matter the stand of the University either before the Visitor or in the writ proceedings initiated by Respondent No. 4 is wholly irrelevant."
Here petitioner is totally ineligible to be accorded designation and pay scale of Lecturer and in the letter dated 18.09.2006, mention was made that if any fact is found incorrect then same shall be liability of Management. District Inspector of Schools has satisfied himself, that facts had been concealed and petitioner was ineligible for being accorded Lecturer's pay scale and designation. This is also well settled that Courts should not exercise their discretion under Article 226 if another illegal order would be restored.
Consequently on admitted position, that petitioner is ineligible this Court refuses to interfere writ petition is dismissed as such.
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