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TMI Blog2019 (4) TMI 2157X X X X Extracts X X X X X X X X Extracts X X X X ..... titution of India. Violation of principles of natural justice - HELD THAT:- It is true that in the present case before cancelling the candidature of the petitioner no notice or opportunity of hearing was provided to him, however, breach of principles of natural justice is no more a straight jacket. The Supreme Court in the case of Aligarh Muslim University and others v. Mansoor Ali Khan [ 2000 (8) TMI 1104 - SUPREME COURT] pleased to held that it is not necessary to quash the order merely because of violation of principles of natural justice - since nothing has been brought in record by the petitioner that what prejudiced has been caused to the petitioner in absence of opportunity of hearing, the order impugned cannot be set aside only on the ground that the opportunity of hearing was not provided to the petitioner. Thus, no relief could be granted to the petitioner in this Writ petition. The writ petition is devoid of merits and the same is liable to dismissed. The writ petition is hereby dismissed. - Hon'ble Judges Prakash Padia, J. For the Appellant : Sanjay Kumar Mishra and H.N. Singh, Sr. Adv. For the Respondents : C.S.C., Chandra Prakash Tiwari, Pankaj Kumar Tyagi, Prab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner on the same date. The petitioner joined the Institution on 27.9.2005 and thereafter started working in the Institution in question. Signatures of the petitioner were also attested by the District Basic Education Officer, Mahoba. Salary bill for the month of September, 2005 was also sanctioned and salary was also released in favour of the petitioner. 4. In the meanwhile, one Raghunandan Prasad/respondent No. 5 filed a writ petition being Writ Petition No. 72842 of 2005 before this Court questioning the appointment of the petitioner. Vide order dated 29.11.2005 passed by this Court, the payment of salary in favour of the petitioner was stayed. Since no restrain order was passed in respect of working of the petitioner, the petitioner continuously discharged his duties on the post of Head Master of the Junior High School. The Writ Petition No. 72842 of 2005 filed by Raghunandan Prasad was finally dismissed by a Co-ordinate Bench of this Court vide its judgment and order dated 7.9.2018. It was held by this Court in the aforesaid case that petitioner Raghunandan Prasad does not have requisite qualification for the post of Headmaster. The order dated 7.9.2018 passed in Writ A No. 72 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having the requisite qualification, they are required to obtain the qualification by 31 March, 2019 and once the B.Ed. Itself is declared a requisite qualification, since the petitioner having the same, the action taken against the petitioner is liable to be set aside by this Court. 6. A counter-affidavit has been filed on behalf of respondent No. 5 namely Raghunandan Prasad. It is contended in the counter-affidavit that the post of Headmaster in the Institution in question was advertised on 28.02.2004 in which answering respondent was selected for the post of Headmaster. His appointment was also approved by the District Basic Education Officer, Mahoba vide its order dated 14.10.2004. The appointment of respondent No. 5 was challenged before this Court by the President of Institution namely Vidyanand Junior High School, Jarauil Tehsil Charkhanni, Mahoba by filing Writ Petition being Writ Petition No. 45546 of 2004 (Brij Nandan Mishra v. State of U.P. and others) on the ground that answering respondent is not entitled for his appointment on the post of Headmaster because he does not have minimum eligibility qualification as required under the Rules. The Writ Petition filed against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f B.Ed, which is not at all a teacher training qualification recognized by the State Government for the appointment on the post of headmaster in recognized junior high school. For ready reference Rules 4 and 5 of Recognized Basic School (Junior High School) (Recruitment and Condition of Services of Teachers) Rules, 1978. 4. Minimum qualification.--(1) The minimum qualifications for the post of clerk shall be Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh, or equivalent examination (with Hindi) and a minimum speed of 30 words per minute in Hindi typewriting. (2) The minimum qualification for the post of Group 'D' employee shall be Class V from an institution recognised by the Government of Uttar Pradesh or equivalent examination with Hindi. 5. Eligibility of appointment.-No person shall be appointed as Clerk or Group D employee in substantial capacity in any recognised School unless: (a) he possesses the minimum qualifications prescribed for such post; (b) he is recommended for such appointment by the Selection Committee. 16. Appointment.-Appointment by the Management (1) On receipt of communication of approval or as the case m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mus cannot be issued for ensuring payment of salary to an incumbent whose appointment is void on the face of it. 11. The same view was earlier taken in the case of Dharambeer Singh v. State of U.P. and Ors., reported in 2004 (4) ESC 2838 (Alld.) wherein this Court has repelled the similar argument that Teaching Training Course mentioned in Rule 4 (2) (b) of 1978 Rules, is illustrative and not exhaustive, therefore, B.Ed. which is also a Training Course has to be treated equivalent to the courses mentioned in the Rules. Relevant paras 7, 8, 9, 10, 11, 12 and 13 of the said judgment is being quoted below: 7. Education qualification of the respondent No. 4 is M.Sc., B.Ed. He is graduate and has three years teaching experience. He passed B.Ed. teacher's training course. The question is whether B.Ed. teachers training certificate could be treated to be minimum qualification for appointment on the post of headmaster of a recognized Junior High School as envisaged by Rule 4 (2) (b) of the Rules, 1978. For better understanding of the dispute Rule 4 of the Rules, 1978 is extracted below:- Minimum Qualifications.-(1) The minimum qualifications for the post of assistant teacher of recogni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted that the petitioner possessed the teachers training qualification envisaged by Rule 4 (2) (b) of Rules, 1978. 11. It may now be considered whether B.Ed. or L.T. is equivalent to teachers training courses such as Hindustani Teaching Certificate, Junior Teaching Certificate, Certificate of Training or Basic Teaching Certificate. The expression 'such' as, explained earlier means courses of similar type. Since B.Ed. is not a course of similar type the respondent was not qualified to be appointed as headmaster. The submission of Shri. Khare appears to be based on Government treating B.Ed. as sufficient for appointment in Basic Schools in 1998. But the submission proceeds on misapprehension. In Junior Basic Schools managed by U.P. Basic Education Board. Education is imparted from Classes 1 to V. In Senior Basic Schools education is imparted from classes VI to VIII. Service Conditions of teachers and head master of these Schools are governed by the provisions of U.P. Basic Education (Teachers) Service Rules, 1981 (in brief Rules, 1981). Rule 8 prescribes essential qualification for appointment to the post of teacher or headmaster. The essential teachers training qualific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he candidates who had passed L.T./B.Ed./C.P. Ed./D.P. Ed./B.P. Ed., training courses filed writ petitions before this Court claiming that they possessed L.T./B.Ed. training certificates which was higher than B.T.C. and in any case it has to be treated to be equivalent to B.T.C. training certificate. This Court did not accept that L.T./B.Ed. training certificates were higher or equivalent to B.T.C. training certificate. In Nirmal Chandra Mishra and Ors. v. State of U.P. and Ors., 1997 (1) ESC 412, it was held that B.Ed. training course is not equivalent to B.T.C. as the State Government has not declared L.T. or B.Ed., training course to be equivalent to B.T.C. training course. I another decision in B.Ed. Berozgar Sangh, Sonnhadra and Ors. v. State of U.P. and other, 1997 (30) ALR 737, it had been held that B.Ed. or L.T. cannot be treated to be equivalent to B.T.C. The Court further held that B.Ed. and B.T.C. are different training courses for teaching different type of children; therefore, B.Ed. is neither higher nor lower than B.T.C. It is thus, clear that neither the State Government nor the Court treated B.Ed. to be a course recognized under Rule 8 of Rules, 1981. Teachers traini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of NCT, Delhi and Ors. (2003) 3 SCC 548 : (AIR 2003 SC 1241), in respect to appointment of primary Schools teachers and entitlement of candidates having B.Ed. qualification has held that candidates with B.Ed. degree are ineligible for being appointed as Primary School Teachers. Further B.Ed. course equips them for teaching higher classes. A specialized training given to teachers for teaching small children at the primary level cannot be compared with training given for awarding B.Ed. degree. Merely because primary teachers can also earn promotion to the post of teachers to teach higher classes and for which B.Ed. is the prescribed qualification, it cannot be held that B.Ed. is a higher qualification than T.T.C. Looking to the different nature of T.T.C. qualification the High Court rightly held that it is not comparable with B.Ed. degree qualification and latter cannot be treated as higher qualification to the former. Thus on these principle, it is well settled that B.Ed. degree holders are not at all eligible for being appointed as assistant teachers in recognized Junior High School under 1978 Rules. Relevant paras 2, 3, 4, 5, 6, 7 and 8 are quoted below: 2. The first contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pared with training given for awarding B.Ed. degree. Merely because primary teachers can also earn promotion to the post of teachers to teach higher classes and for which B.Ed. is the prescribed qualification, it cannot be held that B.Ed. is a higher qualification than T.T.C. Looking to the different nature of T.T.C. qualification the High Court rightly held that it is not comparable with B.Ed. degree qualification and latter cannot be treated as higher qualification to the former. 6. Lastly, learned Counsel for the appellants urged that undisputedly for the last several years for recruitment of primary teachers in Municipal Corporation Schools, candidates with B.Ed. degree were considered and appointed. This long standing practice should be taken as aid to construe the terms of the advertisement and particularly Clause B (ii) on which reliance is placed by B.Ed. candidates to consider them eligible. 7. In support of the above contentions learned Counsel placed reliance on the decision of this Court in N. Suresh Nathan v. Union of India, (1992 Suppl (i) SCC 584: AIR 1992 SC 564). 8. This last argument advanced also does not impress us at all. Recruitment to public services should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is sufficient logic and justification in the study prescribing qualification of Teacher Training Certificate and no B.Ed. for appointment of teachers in Primary Schools. Relevant paragraphs 9, 10, 11, 12, 13, 14, 15, 16 and 17 of aforesaid judgment is quoted below:. 9. It is not disputed before us by the parties that Kerala Education Act of 1958 and the Kerala Education Rules framed thereunder regulate recruitment to. the posts of teachers in private Schools aided by the Government. It is not brought to our notice that correspondingly the Government Memorandum or Order, which regulated recruitment to Government Primary Schools has also been amended to prescribe B.Ed. and equivalent degree qualification as eligibility qualification for the post. 10. We find absolutely no force in the argument advanced by the respondents that B.Ed. qualification is a higher qualification than T.T.C. and therefore, the B.Ed. candidates should be held to be eligible to compete for the post. On behalf of appellants, it is pointed out before us that trained teachers certificate is given to teachers specially trained to teach small children in primary classes whereas for B.Ed. degree, the training im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore us a appellants have been wrongly deprived of due chance of selection and appointment. The impugned judgment of the Division Bench, therefore, deserves to be set aside and of the learned single judgment restored. 14. Learned Counsel for the respondent states that two interim orders were made by this Court during the pendency of special leave petitions and after grant of leave for these appeals. The relevant orders dated 3.7.2000 and 1.3.2001 read as under: Court Order dated 3.7.2000. Taken on Board. Issue notice. Any appointment in the meanwhile made will be subject to the result of any Order passed in this SLP Court Order dated 1.3.2001. ..................... Mr. P.P. Rao, learned Senior Counsel submitted on behalf of the State of Kerala that T.T.C. holders alone will be appointed in the vacancies arising in respect of Lower Primary School (LPS). This will continue for the, future posts also until otherwise decided by this Court. He submitted that so far as Upper: Primary Schools (UPS) are concerned, until otherwise decided, T.T.C. holders as well as B.Ed. holders' will be considered and the Public Service Commission (PSC) will select the persons but of this as one catego ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed in violation of principles of natural justice. It is true that in the present case before cancelling the candidature of the petitioner no notice or opportunity of hearing was provided to him, however, breach of principles of natural justice is no more a straight jacket. The Supreme Court in the case of Aligarh Muslim University and others v. Mansoor Ali Khan, reported in (2000) 7 SCC 529 : (AIR 2000 SC 2783) pleased to held that it is not necessary to quash the order merely because of violation of principles of natural justice. The relevant paragraphs are quoted hereinbelow:- 21. As pointed recently in M.C. Mehta v. Union of India (1999) 6 SCC 237): (AIR 1999 SC 2583), 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. Similarly, if the quashing of the order which is in breach of natural justice is likely to result in revival of another order which is in itself illegal as in Gadde Venkateswara Rao v. Government of Andhra Pradesh (1966 (2) SCR 172 : AIR 1966 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal is acting, the subject-matter to be dealt with and so forth . Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in State Bank of Patiala v. S.K. Sharma (1996) 3 SCC 364) : (AIR 1996 SC 1669). In that case, the principle of 'prejudice' has been further elaborated. The same principle has been reiterated again in Rajendra Singh v. State of M.P. (1996(5) SCC 460) : (AIR 1996 SC 2736). 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 of 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, C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case . 29. In the leading case of A.K. Kraipak v. Union of India (1969) 2 SCC 262: AIR 1970 SC 150), Hegde, J. stated; What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case . 30. Again, in R.S. Dass v. Union of India, (1986 Supp SCC 617 : AIR 1987 SC 593), this Court said; It is well established that rules of natural justice are not rigid rules; they are flexible and their application depends upon the setting and the background of statutory provision, nature of the right which may be affected and the consequences which may entail, its application depends upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided to the petitioner. 19. In the supplementary affidavit filed by the petitioner certain Government Orders and notifications issued by the Ministry of H.R.D. was appended. Learned counsel for the petitioner relied upon Government Notification dated 12.6.2008 by which certain amendments were made in the U.P. Basic Education Act, 1972. From perusal of the paragraph 2 of the aforesaid amendments, it is clear that the amendments will came into force with effect from the date the notification was published in the official gazette. The aforesaid amendment was published in the official gazette for the first time on 12.6.2008 and as such the petitioner will not get any benefit from the aforesaid amendment. 20. Apart from the same, learned counsel for the petitioner also relied upon the notification issued by the National Council for Teacher Education dated 23.8.2010. By the aforesaid notification B.Ed was also added as one of the necessary qualifications. The aforesaid notification will also not help the petitioner since it is provided in the aforesaid notification that the same will apply with effect from the date of the notification. 21. Learned counsel for the petitioner relied upon a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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