MANJULA MISHRA Vs. COMMITTEE OF MANAGEMENT
LAWS(ALL)-2009-5-203
HIGH COURT OF ALLAHABAD
Decided on May 26,2009

MANJULA MISHRA Appellant
VERSUS
COMMITTEE OF MANAGEMENT Respondents




JUDGEMENT

B.K.Narayana, J. - (1.)HEARD Sri Som Kartik, learned counsel for the petitioner, learned Standing Counsel for the opposite parties No.2 and 3 and Sri Ranjan Roy, learned counsel for the opposite party No.4. None appears for the opposite party No.1. This writ petition has been filed by the petitioner for quashing the order dated 17.11.2006 (Annexure No.10 to the writ petition) passed by the Joint Director of Education, 6th Region, Lucknow/opposite party No.2 by which the date of petitioner's substantive appointment in the L.T. Grade has been amended. Brief facts of the case as stated in the writ petition are that the petitioner was appointed as Music Teacher in L.T. grade on ad hoc basis against a substantive vacancy in Sindhi Vidyalaya Girls Inter College, Ram Nager, Alambagh, Lucknow, hereinafter referred to as "the College" on 12.09.1988 under Section 18 of the U.P. Secondary Education (Services Commission and Selection Boards) Act, 1982, hereinafter referred to as "the Act". The petitioner's ad hoc appointment as L.T. grade teacher was approved by the Regional Inspector of Girls School by order dated 26.11.1988. By letter dated 22.10.1994 issued by the Manager of the College, the petitioner was informed that the petitioner's ad hoc appointment in the L.T. grade had been regularised under Section 33-B of the Act as inserted by amending Act No.1 of 1993. The petitioner being the senior most teacher in the L.T. grade was appointed as Officiating Principal by an order dated 01.07.2006 upon superannuation of Smt. Ramesh Khanna, Principal of the College on 30.06.2006. By a letter dated 28.11.2006 issued by the Manager of the College, the petitioner was informed that the opposite party No.2 had passed an order on 17.11.2006 changing the date of petitioner's substantive appointment as mentioned in the order by which the petitioner's services were regularised from 12.09.1988 to 07.08.1983. According to the petitioner, the order dated 17.11.2006 was passed without issuing any notice to the petitioner and without affording her any opportunity of hearing although the impugned order carries civil consequences. A counter affidavit has been filed on behalf of the opposite party No.4 rebutting the averments made in the writ petition. In paragraph-2 of the counter affidavit it has been stated that a perusal of the impugned order shows that by the said order, the opposite party No.2 has merely rectified the error with regard to the date of petitioner's substantive appointment/regularisation of her services which had inadvertently crept in his earlier order dated 26.07.1994 when the said error was brought to the notice of the authorities on the complaint of the opposite party No.5. Since the petitioner's claim was considered for regularisation under Section 33-B(1) of the Act which came into force w.e.f. 07.08.1993, the date of substantive appointment of the petitioner could not be of a date prior to 07.08.1993 as the date of substantive appointment of every ad hoc teacher whose services were regularised under Section 33-B (1) of the Act could not be of a date prior to 07.08.1993. It has further been stated in the counter affidavit that no opportunity of hearing was required to be given to the petitioner before correcting an error which was apparent on the face of the record as even if the petitioner had been afforded an opportunity of hearing, she could not have improved upon her case as in the given facts and circumstances of the present case, no two views are possible and hence, the failure to afford opportunity of hearing to the petitioner by the opposite party No.2 before passing the impugned order will not vitiate his order in any manner as the petitioner has totally failed to show that she has been prejudiced in any manner on account of having not been afforded opportunity of hearing prior to the passing of the impugned order. It has been submitted by the learned counsel for the petitioner that the impugned order, which is patently erroneous has been passed by the opposite party No.2 in a mechanical manner, in utter disregard of the settled legal position and the material on record and also suffers from the vice of total non-application of mind. Learned counsel for the petitioner next submitted that the order dated 17.11.1006 was passed by the opposite party No.2 in gross violation of principles of natural justice without giving any notice to the petitioner and without affording her any opportunity of hearing although the said order carries civil consequences. Since the impugned order is an ex-parte order having been passed behind the back of the petitioner, the same is liable to be quashed. In support of his submissions, learned counsel for the petitioner relied upon the following cases: 1. Mohan Lal Sharma Vs. The District Inspector of Schools, Muzaffarnagar and others, 1982 UPLBEC 213.
(2.)DR. M.S. Mudhol and another Vs. S.D. Halegkar and others, (1993) 3 SCC 591. Sri Ranjan Roy, learned counsel for the opposite party No.4 has submitted that the impugned order does not suffer from any illegality or infirmity warranting any interference by this Court. He further submitted that since the petitioner has failed to show that non-observance of the principles of natural justice before passing the impugned order has caused any prejudice to the petitioner, interference with the impugned order under Article 226 of the Constitution of India is not warranted on the aforesaid ground alone. He further submitted that no useful purpose would have been served in giving notice to the petitioner before passing the impugned order as the impugned order is based on indisputable facts leading to only one conclusion. In support of his submissions, learned counsel for the opposite party No.4 has relied upon the following cases:- 1. M.C. Mehta Vs. Union of India, (1999) 6 SCC 237. 2. K.L. Tripathi Vs. State Bank of India, (1984) 1 SCC 43.
S.L. Kapoor Vs. Jagmohan, (1980) 4 SCC 379.

Aligarh Muslim University and others Vs. Mansoor Ali Khan, (2000) 7 SCC 529. I have examined the submissions made by the learned counsel for the parties and have also perused the record. The admitted facts are that the petitioner was appointed as Music Teacher in L.T. grade on ad hoc basis against a substantive vacancy in the College on 12.09.1988. The ad hoc service of the petitioner in the L.T. grade was regularised under Section 33-B (1) of the Act by order dated 26.07.1994 passed by the opposite party No.2. In the said order the date of substantive appointment of the petitioner in L.T. grade was mentioned as 12.09.1988 and in the seniority list of the College dated 01.07.2006, copy whereof has been filed as Annexure No.8 to the writ petition, also the date of her substantive appointment is shown as 12.09.1988. In the said seniority list the opposite party No.4 is also shown as junior to the petitioner. Section 33-B (1) under which the service of the petitioner has been regularised was inserted by U.P. Act No.1 of 1993 w.e.f. 07.08.1993. Section 33-B (1) of the Act reads as under:- "33-B. Regularisation of certain other appointments.-[(1) Any teacher, other than the Principal or Headmaster, who- (a)(i) was appointed by promotion or by direct recruitment in the Lecturer grade or Trained Graduate grade on or before May 14, 1991 or in the Certificate of Teaching grade on or before May 13, 1989 against a short term vacancy in accordance with Paragraph 2 of the Uttar pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 and such vacancy was subsequently converted into a substantive vacancy; or (ii) was appointed by direct recruitment on or after July 14, 1981 but not later than June 12, 1985 on ad hoc basis against a substantive vacancy in the Certificate of Teaching grade through advertisement and such appointment was approved by the Inspector; or (iii) was appointed by promotion or by direct recruitment on or after July 31, 1988 but not later than May 14, 1991 on ad hoc basis against a substantive vacancy in accordance with Section 18, (as it stood before its substitution by the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Second Amendment) Act, 1992;] (b) Possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with, the provisions of the Intermediate Education Act, 1921; (c) has been continuously serving the Institution from the date of such appointment up to the date of the commencement of the Act referred to in sub-clause (iii) of Clause (a); (d) is not related to any member of the management or the Principal or Head Master of the Institution concerned in the manner specified in the explanation to sub-section (3) of Section 33-A; (e) has been found suitable for appointment in a substantive capacity by a Selection Committee constituted under sub-section (2), shall be given substantive appointment by the management." Section 33-B (4) of the Act provides that every teacher appointed in a substantive capacity under sub- section (1) shall be deemed to be on probation from the date of such substantive appointment. A combined reading of Sections 33-B (1) and 33-B (4) of the Act leads to the conclusion that the date of substantive appointment of a teacher appointed under Section 33-B (1) of the Act shall be the date on which such teacher is given substantive appointment by the Management after being found suitable for appointment in substantive capacity by the Selection Committee constituted under sub-section (2) of Section 33-B and the date of substantive appointment of a teacher whose ad hoc appointment is regularised under Section 33-B of the Act cannot be of a date prior to the date on which U.P. Act No.1 of 1993 by which Section 33-B was inserted in the Act was enforced. The U.P. Act No.1 of 1993 was enforced w.e.f. 07.08.1993. Thus for the aforesaid reasons, the petitioner's substantive appointment could not be of a date prior to 07.08.1993, which is the date on which U.P. Act No.1 of 1993 by which Section 33-B was inserted in the Act was enforced and under which the ad hoc appointment of the petitioner was regularised. It is apparent on the face of the record that the date of substantive appointment of the petitioner mentioned in the order dated 26.07.1994 passed by the opposite party No.2 had been incorrectly mentioned as 12.09.1988, which is the date on which the petitioner was appointed as ad hoc teacher in L.T. Grade in the College and in my opinion, the opposite party No.2 did not commit any error in rectifying the same by the impugned order and the failure of the opposite party No.2 to give any notice or opportunity of hearing to the petitioner before passing the impugned order shall not render the same unsustainable. The Apex Court has held in the case of M.C. Mehta Vs. Union of India, reported in (1999) 6 SCC 237 that there can be certain situations in which an order passed in violation of natural justice need not be set aside under Article 226 of the Constitution of India. For example where no prejudice is caused to the person concerned, interference under Article 226 is not necessary. In the case of M.C. Mehta (Supra) it was pointed out that at one time, it was held in Ridge v. Baldwin 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. Hon'ble Chinnappa Reddy, J. in S.L. 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. In K.L. Tripathi v. State Bank of India, reported in (1984) 1 SCC 43, Hon'ble Sabyasachi Mukherji, 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" Similar view was taken by the Apex Court in Aligarh Muslim University and others Vs. Mansoor Ali Khan, reported in (2000) 7 SCC 529. The judgements relied upon by the learned counsel for the petitioner in support of his submissions have no application to the facts of this case as the petitioner has failed to show that the breach of principles of natural justice has caused any prejudice to her in any manner and since the impugned order has been passed on admitted and indisputable fact leading to only one conclusion, the said order is not liable to be interfered on the ground that the order has been passed in violation of principles of natural justice. It is clear from facts of the present case that the absence of a notice to show cause has not caused any prejudice to the petitioner as the petitioner was fully aware of the date of her substantive appointment and also of the fact that the date of her substantive appointment mentioned in the order of her regularisation was incorrect. The petitioner's counsel has miserably failed to show that the impugned order is either patently erroneous or suffers from the vice of non-application of mind. Thus, for the aforesaid reasons and the settled legal position on the subject, I am of the view that the impugned order is not liable to be set aside on the ground that the same was passed in violation of principles of natural justice without giving any notice to the petitioner and without affording her any opportunity of hearing. For the aforesaid reason, the writ petition has no merit and is accordingly dismissed.



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