S.B. SINHA, J.
Banaras Hindu University (for short,
'the University) issued an advertisement on 25.03.1995, iner alia, for
filling up a vacant post of lecturer in Tridosa Vigyan in the Department
of Basic Principles. Relevant clauses of the said advertisement are as
"Those who have applied earlier are
required to apply again on the prescribed format for the post, otherwise
their candidature will not be considered. They will, however, be
exempted from any payment against the application. Their cases will be
considered according to the up-dated qualification."
Essential qualifications prescribed
for the said post are :
"70. Lecturer in Tridosa Vigyan (One) [Department of Basic Principles]
Essential 1. ABMS or equivalent examination from any recognized
2. M.D. in Sharir-Kriya
Desirable 1. Standard publication in the filed of Neurophysiology,
Neurochemistry, related to Tridosa Vigyan.
2. Knowledge of Modern Medical Science and Sanskrit."
Appellant applied for the said post
on 30.05.1995. As on that day, he had not completed his M.D. in Sharir
Kriya, with his application he enclosed a certificate issued by
Professor and Head of the Department of Basic Principles, Institute of
Medical Sciences, Banaras Hindu University, which reads as under :
"This is to certify that Dr. Ashok
Kumar Sonkar son of Dr. K.P. Sonkar, is a bona fide student of the
Department of Basic Principles. He was admitted for the Degree of M.D.
(Ay.) Basic Principles (Sharir-Kriya) on 1st August, 1992 and his final
examination will be held in October, 1995. His thesis entitled "Clinical
evaluation of therapeutic potential of certain indigenous drugs in
seizure disorders" will be submitted in the month of June, 1995.
He is sincere, hard working young
man, zealous and outwitted scholar and sound character of this
department. He is fit to be entrusted for clinical, research, teaching
and administrative responsibilities.
I wish him all success in future
He passed the said examination only on 30.10.1995. He was allowed to
appear before the Selection Committee, despite the fact that he did not
hold the requisite qualification till the date of filing of such
application. He, however, was selected and offered an appointment. He
joined the said post.
In the meanwhile, Respondent No. 4
filed a writ petition before the Allahabad High Court, which was marked
as Writ Petition No. 20883 of 1997. The High Court by reason of an order
dated 17.02.1998 dismissed the said writ petition on the premise that he
had an alternative remedy. Respondent No.4 thereafter moved the
President of India in his capacity of the 'Visitor' of the said
University. The 'Visitor' was of the opinion that the selection process
was illegal. The selection proceeding, therefore, was set aside.
However, before the said order was passed, the comments of the
University were called for. The University offered its comments. The
order of the Visitor was communicated by the Desk Officer, Ministry of
Human Resource Development (Department of Secondary Education and Higher
Education), Government of India, by a letter dated 18.10.2000,
intimating the Registrar of the University that the President of India
in his capacity as the Visitor of the University had annulled the
appointment of the appellant in exercise of the power conferred upon him
under Section 5(7) of the Banaras Hindu University Act, 1915 (for short,
'the Act'), the relevant portion of the said letter is as under:
"Kindly refer to your letter No.AA/VI-SC/1460
dated the 15 July, 2000 forwarding therewith 1460 a reply of the
University to the show cause Notice issued in exercise of the powers
conferred upon the President of India in his capacity as the Visitor of
the University under Section 5(7) of the Banaras Hindu University Act,
1915. The Visitor, after considering the reply of the University,
pleased to annul the appointment of Dr. Ashok Kumar Sonkar as Lecturer
in Tridosh Vigyan IMS, Banaras Hindu University with immediate effect.
This issue on the basis of
communication received from President's secretariat vide their No.
28(2)(xiii) 98-CA (II), dated 21.03.2000. The University may take
further necessary action immediately after intimation to this
A writ petition was filed by the
appellant before the Allahabad High Court. By reason of the impugned
judgment dated 26.05.2006, the said writ petition has been dismissed.
Mr. V. Shekhar, the learned counsel
appearing on behalf of the appellant, in support of this appeal, would
1) In absence of any cut-off date having been specified in the
advertisement and in view of the fact that the statute or statutory
rules in this behalf are also silent in regard to the question as to
whether the Selection Committee could allow the appellant to take part
in the selection process as he had completed his M.D. before he was
considered therefor, the High Court committed a manifest error in
arriving at the finding.
2) In view of the fact that the
appellant was confirmed in the post of lecturer, it was obligatory on
the part of the Visitor to give an
opportunity of hearing to the appellant.
3) The University having taken a
definite stand before the High Court in the earlier writ petition that
the appellant was selected in terms of the prevailing practice, the
impugned judgment is unsustainable.
4) The jurisdiction of the Visitor
being limited under sub-section (2) of Section 5 of the Act, new
appointment could not have formed subject-matter of his decision.
5) Respondent No. 4 being himself
ineligible, he did not have any locus standi to maintain the writ
petition or make a representation before the Visitor of the University.
6) In any event, keeping in view the
facts and circumstances of the case, it was obligatory on the part of
the High Court in equity to refuse to exercise its discretionary
Mr. G.E. Vahanvati, the learned
Solicitor General and Dr. Rajeev Dhawan, the learned Senior Counsel,
appearing on behalf of the respondents, however, supported the impugned
Section 5 of the Act provides that
the President of India shall be the Visitor of the University.
Sub-section (7) of Section 5 of the Act, however, confers power upon the
Visitor of the University, without prejudice to the other provisions
contained in the said Section, by order in writing, to annul any
proceeding of the University which is not in conformity with the said
Act, the Statutes or the Ordinances. Proviso appended thereto, however,
mandates the Visitor to call upon the University to show cause why such
an order should not be made and if any cause is shown within a
reasonable time shall consider the same, before making any such order.
Indisputably, the recruitment of the
academic staff of the University is governed by the provisions of the
said Act and the Statutes and Ordinances framed thereunder.
The question as to what should be
the cut-off date in absence of any date specified in this behalf either
in the advertisement or in the reference is no longer res integra. It
would be last date for filing application as would appear from the
discussions made hereinafter.
The question came up for
consideration, inter alia, before a 3-Judge Bench of this Court in Ashok
Kumar Sharma and Another etc. v. Chander Shekher and Another etc.
[(1993) Supp. (2) SCC 611], wherein Thommen, J. speaking for himself and
Ramaswami, J. opined :
"13. It is true Rule 37 is in terms applicable only to Public Service
Commission candidates and due notice of provisional entertainment of
their application, subject to their passing examination before the date
of interview, is a requirement peculiar to Rule 37 and is not applicable
to the present case.
14. If the principle of Rule 37 is
by analogy applicable, the fact that notice of provisional entertainment
of applications, subject to passing of the examination before the date
of interview, is a requirement in the interests of candidates who fell
within that category. The appellants are by analogy persons of that
category, but they have no complaint on any such ground.
15. The fact is that the appellants
did pass the examination and were fully qualified for being selected
prior to the date of interview. By allowing the appellants to sit for
the interview and by their selection on the basis of their comparative
merits, the recruiting authority was able to get the best talents
available. It was certainly in the public interest that the interview
was made as broad based as was possible on the basis of qualification.
The reasoning of the learned Single Judge was thus based on sound
principle with reference to comparatively superior merits. It was in the
public interest that better candidates who were fully qualified on the
dates of selection were not rejected, notwithstanding that the results
of the examination in which they had appeared had been delayed for no
fault of theirs. The appellants were fully qualified on the dates of the
interview and taking into account the generally followed principle of
Rule 37 in the State of Jammu & Kashmir, we are of opinion that the
technical view adopted by the learned Judges of the Division Bench was
incorrect and the view expressed by the learned Single Judge was, on the
facts of this case, the correct view. Accordingly, we set aside the
impugned judgment of the Division Bench and restore that of the learned
Single Judge. In the result, we uphold the results announced by the
recruiting authority. The appeal is allowed in the above terms. However,
we make no order as to costs."
Sahai, J., however, gave a
dissenting note, stating :
" The notification, therefore,
provided not, only, the conditions which a candidate was required to
possess when applying for the post mentioned in the notification but he
was also required to support it with authenticated certificate and if he
failed to do so then the application was not liable to be entertained.
In legal terminology where something is required to be done and the
consequences of failure to do so are also provided then it is known as
mandatory. The mandatory character of possessing the requirements as
provided in the first part of the notification stands further
strengthened from the third and last part of the notification which
prohibited the candidates from applying if they did not possess the
requisite qualifications. In view of these clear and specific conditions
laid down in the advertisement those candidates who were not possessed
of the B.E. qualifications were not eligible for applying nor their
applications were liable to be entertained nor could they be called for
interview. Eligibility for the post mentioned in the notification
depended on possessing the qualification noted against each post. The
expression, shall be possessed of such qualifications, is indicative of
both the mandatory character of the requirement and its operation in
praesenti. That is a candidate must not only have been qualified but he
should have been possessed of it on the date the application was made.
The construction suggested by the learned counsel for the appellant that
the relevant date for purposes of eligibility was the date of interview
and not the date of application or July 15, 1982 the last date for
submission of forms is not made out from the language of the
notification. Acceptance of such construction would result in altering
the first part of the advertisement prescribing eligibility on the date
of applying for the post as being extended to the date of interview. If
it is read in the manner suggested then the requirement that incomplete
applications and those not accompanied by the requisite certificates
shall not be entertained, shall become meaningless. Purpose of filing
certificate along with application was to prove that the conditions
required were satisfied. Non-filing of any of the certificates could
have resulted in not entertaining the application as the requirements as
specified would have been presumed to be non-existent. Fulfilment of
conditions was mandatory and its proof could be directory. The former
could not be waived or deferred whereas the defect in latter could be
cured even subsequently. That is proof could be furnished till date of
interview but not the eligibility to apply for the post. Any other
construction would further be contrary to the last part of the
A review application was filed which
was admitted. The matter was again placed before a 3-Judge Bench of this
Court in Ashok Kumar Sharma and Others v. Chander Shekhar and Another
[(1997) 4 SCC 18]. One of the issues which fell for consideration of the
Bench being Issue No. 1 reads as under :
"(1) Whether the view taken by the
majority (Honble Dr Thommen and V. Ramaswami, JJ.) that it is enough for
a candidate to be qualified by the date of interview even if he was not
qualified by the last date prescribed for receiving the applications, is
correct in law and whether the majority was right in extending the
principle of Rule 37 of the Public Service Commission Rules to the
present case by analogy?"
It was held :
" So far as the first issue referred to in our Order dated 1-9-1995 is
concerned, we are of the respectful opinion that majority judgment
(rendered by Dr T.K. Thommen and V. Ramaswami, JJ.) is unsustainable in
law. The proposition that where applications are called for prescribing
a particular date as the last date for filing the applications, the
eligibility of the candidates shall have to be judged with reference to
that date and that date alone, is a well-established one. A person who
acquires the prescribed qualification subsequent to such prescribed date
cannot be considered at all. An advertisement or notification
issued/published calling for applications constitutes a representation
to the public and the authority issuing it is bound by such
representation. It cannot act contrary to it. One reason behind this
proposition is that if it were known that persons who obtained the
qualifications after the prescribed date but before the date of
interview would be allowed to appear for the interview, other similarly
placed persons could also have applied. Just because some of the persons
had applied notwithstanding that they had not acquired the prescribed
qualifications by the prescribed date, they could not have been treated
on a preferential basis. Their applications ought to have been rejected
at the inception itself. This proposition is indisputable and in fact
was not doubted or disputed in the majority judgment. This is also the
proposition affirmed in Rekha Chaturvedi v. University of Rajasthan. The
reasoning in the majority opinion that by allowing the 33 respondents to
appear for the interview, the recruiting authority was able to get the
best talent available and that such course was in furtherance of public
interest is, with respect, an impermissible justification. It is, in our
considered opinion, a clear error of law and an error apparent on the
face of the record. In our opinion, R.M. Sahai, J. (and the Division
Bench of the High Court) was right in holding that the 33 respondents
could not have been allowed to appear for the interview.
The said decision is, therefore, an
authority for the proposition that in absence of any cut-off date
specified in the advertisement or in the rules, the last date for filing
of an application shall be considered as such.
Indisputably, the appellant herein did not hold the requisite
qualification as on the said cut-off date. He was, therefore, not
In Bhupinderpal Singh & Others v.
State of Punjab & Others [(2000) 5 SCC 262], this Court moreover
disapproved the prevailing practice in the State of Punjab to determine
the eligibility with reference to the date of interview, inter alia,
"13. Placing reliance on the
decisions of this Court in Ashok Kumar Sharma v. Chander Shekhar, A.P.
Public Service Commission v. B. Sarat Chandra, District Collector and
Chairman, Vizianagaram Social Welfare Residential School Society v. M.
Tripura Sundari Devi, Rekha Chaturvedi v. University of Rajasthan, M.V.
Nair (Dr) v. Union of India and U.P. Public Service Commission U.P.,
Allahabad v. Alpana the High Court has held (i) that the cut-off date by
reference to which the eligibility requirement must be satisfied by the
candidate seeking a public employment is the date appointed by the
relevant service rules and if there be no cut-off date appointed by the
rules then such date as may be appointed for the purpose in the
advertisement calling for applications; (ii) that if there be no such
date appointed then the eligibility criteria shall be applied by
reference to the last date appointed by which the applications have to
be received by the competent authority. The view taken by the High Court
is supported by several decisions of this Court and is therefore well
settled and hence cannot be found fault with. However, there are certain
special features of this case which need to be taken care of and justice
be done by invoking the jurisdiction under Article 142 of the
Constitution vested in this Court so as to advance the cause of
[See Jasbir Rani and Others v. State
of Punjab & Another [JT 2001 (9) SC 351 : (2002) 1 SCC 124].
Yet again in Shankar K. Mandal and
Others v. State of Bihar and Others [(2003) 9 SCC 519], this Court held
that the following principles could be culled out from the
aforementioned decisions :
" (1) The cut-off date by reference to which the eligibility requirement
must be satisfied by the candidate seeking a public employment is the
date appointed by the relevant service rules.
(2) If there is no cut-off date
appointed by the rules then such date shall be as appointed for the
purpose in the advertisement calling for applications.(3) If there is no
such date appointed then the eligibility criteria shall be applied by
reference to the last date appointed by which the applications were to
be received by the competent authority."
In M.A. Murthy v. State of Karnataka
& Others [(2003) 7 SCC 517], a contention was made that Ashok Kumar-II
(supra) was to operative prospectively or not. The said contention was
rejected, stating :
" It is for this Court to indicate
as to whether the decision in question will operate prospectively. In
other words, there shall be no prospective overruling, unless it is so
indicated in the particular decision. It is not open to be held that the
decision in a particular case will be prospective in its application by
application of the doctrine of prospective overruling. The doctrine of
binding precedent helps in promoting certainty and consistency in
judicial decisions and enables an organic development of the law besides
providing assurance to the individual as to the consequences of
transactions forming part of the daily affairs. That being the position,
the High Court was in error by holding that the judgment which operated
on the date of selection was operative and not the review judgment in
Ashok Kumar Sharma case No. II. All the more so when the subsequent
judgment is by way of review of the first judgment in which case there
are no judgments at all and the subsequent judgment rendered on review
petitions is the one and only judgment rendered, effectively and for all
purposes, the earlier decision having been erased by countenancing the
review applications. The impugned judgments of the High Court are,
therefore, set aside."
Possession of requisite educational
qualification is mandatory. The same should not be uncertain. If an
uncertainty is allowed to prevail, the employer would be flooded with
applications of ineligible candidates. A cut-off date for the purpose of
determining the eligibility of the candidates concerned must, therefore,
be fixed. In absence of any rule or any specific date having been fixed
in the advertisement, the law, therefore, as held by this Court would be
the last date for filing the application.
Recently, this Court in Kendriya
Vidyalaya Sangathan and Others v. Sajal Kumar Roy and Others [(2006) 8
SCC 671], opined that the conditions laid down for exercising the power
of relaxation must be scrupulously followed, stating :
" The appointing authorities are
required to apply their mind while exercising their discretionary
jurisdiction to relax the age limits. Discretion of the authorities is
required to be exercised only for deserving candidates and upon
recommendations of the Appointing Committee/Selection Committee. The
requirements to comply with the rules, it is trite, were required to be
complied with fairly and reasonably. They were bound by the rules. The
discretionary jurisdiction could be exercised for relaxation of age
provided for in the rules and within the four corners thereof. ..."
Therein, this Court noticed the
decision in Food Corporation of India and Ors. v. Bhanu Lodh and Ors.
[(2005) 3 SCC 618], wherein, inter alia, it was held :
" The power of relaxation is
intended to be used in marginal cases where exceptionally qualified
candidates are available. We do not think that they are intended as an
"open sesame" for all and sundry. The wholesale go-by given to the
Regulations, and the manner in which the recruitment process was being
done, was very much reviewable as a policy directive, in exercise of the
power of the Central Government under Section 6(2) of the Act "
We, therefore, see no infirmity in
the judgment of the High Court, in this behalf.
The power of the Visitor is not only
confined under sub-section (2) of Section 5, but also under sub-section
(7) of Section 5 of the Act. Even otherwise sub-section (2) of Section 5
cannot be construed narrowly. The power of the Visitor to cause an
inquiry to be made is in respect of any matter connected with the
University. Sub-section (7) of Section 5 provides for a power in the
Visitor without prejudice to the provision contained in sub-sections (2)
to (6) of Section 5 of the Act. An express power, thus, has been
conferred upon the Visitor to annul any proceeding of the University.
The only condition attached thereto is that the same should found to be
not in conformity with the statutes or ordinances. The selection process
carried out by the Selection Committee would indisputably be a
proceeding under the Act. Section 17 provides for a statute making
power, including clause (l), which reads as under :
"(l) the classification and the
manner of appointment of teachers in the University and the colleges;"
Submission of Mr. Shekhar that the
Visitor committed an error in passing the impugned judgment as 'any
irregularity in the procedure by any authority shall not render the same
invalid, unless the same affects the merits of the case' is stated to be
rejected. Appointment of a teacher must conform to the constitutional
scheme as adumbrated under Articles 14 and 16 of the Constitution of
India and the terms of the Act or the statute or ordinances governing
the field. Any violation of the provisions thereof would entitle the
Visitor to exercise his jurisdiction under sub-section (7) of Section 6.
It is also beyond any cavil that in exercising the said power, the
statutory provisions interpreted by this Court must be followed.
This bring us to the question as to
whether the principles of natural justice were required to be complied
with. There cannot be any doubt whatsoever that the audi alteram partem
is one of the basic pillar of natural justice which means no one should
be condemned unheard. However, whenever possible the principle of
natural justice should be followed. Ordinarily in a case of this nature
the same should be complied with. Visitor may in a given situation issue
notice to the employee who would be effected by the ultimate order that
may be passed. He may not be given an oral hearing, but may be allowed
to make a representation in writing.
It is also, however, well-settled
that it cannot be put any straight jacket formula. It may not be in a
given case applied unless a prejudice is shown. It is not necessary
where it would be a futile exercise.
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 off date. Being ineligible to be considered for appointment,
it would have been a futile exercise to give him an opportunity of being
In Aligarh Muslim University and
Others v. 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
views expressed in regard to this theory have been elaborately
considered by this Court in M.C. Mehta 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, 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 depend on the facts of a particular case.
In Karnataka State Road Transport
Corporation and Another v. S.G. Kotturappa and Another [(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 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 "
In Punjab National Bank and Others
v. 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 of 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 principle of natural
In P.D. Agrawal v. State Bank of
India and Others [(2006) 8 SCC 776], this Court observed :
"The Principles of natural justice
cannot be put in a straight jacket formula. It must be seen in
circumstantial flexibility. It has separate facets. It has in recent
time also undergone a sea change."
It was further observed :
"Decision of this Court in S.L. Kapoor vs. Jagmohan & Ors. [(1980) 4 SCC
379], whereupon Mr. Rao placed strong reliance to contend that
non-observance of principle 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 hereinbefore, 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 alterem
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 straightjacket formula. [See Viveka Nand Sethi vs. Chairman, J.
& K. Bank Ltd. & Ots. (2005) 5 SCC 337 and State of U.P. vs. Neeraj
Awasthi & Ors. JT 2006 (1) SC 19. See also Mohd. Sartaj vs. State of U.P.
(2006) 1 SCALE 265.]"
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.
In Maruti Udyog Ltd. v. Ram Lal &
Others. [(2005) 2 SCC 638], a Division Bench of this Court, wherein one
of us was a member, noticing some decisions, 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 v. Registrar,
Coop. Societies this Court rejected a similar contention upon noticing
the following judgments: (SCC pp. 131-32, paras 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. v. U.T., Chandigarh it is stated: (SCC p. 144, paras 36-37)
36. We have no doubt in our mind
that sympathy or sentiment by itself cannot be a 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 v. Richard Johnson & Nephew Ltd. observed: (All ER p. 123
We must be very careful not to allow
our sympathy with the infant plaintiff to affect our judgment. Sentiment
is a dangerous will o the wisp to take as a guide in the search for
70. Yet again, recently in
Ramakrishna Kamat v. State of Karnataka this Court rejected a similar
plea for regularisation of services 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 in 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 the 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."
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.
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 our equity jurisdiction.
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.
For the reasons aforementioned, we
do not find any merit in this appeal, which is dismissed. However, in
the facts and circumstances of the case, there shall be no order as to
Print This Judgment