TMI Blog2006 (1) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... Government or any training equivalent thereto. The advertisement also provided that the higher caste candidates who were trained by 1974 and those Scheduled Caste, Backward Caste and Scheduled Tribe candidates, who were trained upto 1975 may only apply because other candidates trained after this period were not going to be considered. Both the appellants had the High School Degree as well as the Intermediate Degree with Urdu as one of the subjects along with Urdu Training Certificate such as Adib, Adib-e-Mahir and Moallim-e-Urdu from the Jamia Urdu, Aligarh. In pursuance of the advertisement issued dated 15.10.84, the Basic Education Board, Muzaffarnagar conducted an interview and the Upper Basic Shiksha Adhikari, respondent no.4 herein, on 19.6.85 published a list of selected candidates, which included the names of the appellants herein. The list / memorandum itself provided that all the selected candidates were required to join their respective schools / colleges within the period of 15 days, otherwise their appointment would automatically be deemed to be cancelled. After receipt of the memorandum both the appellants joined duties within the stipulated 15 days and started workin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants having higher qualifications than the prescribed ones and hence even if they acquired the prescribed qualifications at later stage, the selection and appointment was perfectly lawful, just and proper. The argument of the appellants was countered by the respondents contending therein that the appellants were not entitled to continue in service and their appointment was rightly cancelled within the short span of time on detecting the error that they did not qualify for the appointment, and, therefore, the compliance of natural justice was not necessary. The appellants having not possessed the minimum qualification under the Rules, their initial appointment itself was bad. The High Court, relying upon the ruling of this Court in Dr. Prit Singh vs. S.K. Mangal Ors. 1993 Supp. (1) S.C.C. 714, held that appellants' appointment was not proper. It further relied on State of Mizoram vs. Biakchhawna (1995) 1 S.C.C. 156, to conclude that it was incumbent on the authorities to advertise the vacancy strictly by following Rule 8 of the Service Rules which was not done. It was also pointed out that any selection made in violation of the relevant rules was illegal and reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advertisement after following due procedures, cancellation order of their appointment could have been issued only after giving them an opportunity of being heard. The State is bound to give a person who is affected by their decision an opportunity of making a representation when the right has been created in favour of the appellants by issuance of appointment orders in their favour. In any case, the State by various orders having given equivalence of the degree obtained by the appellants, i.e., Moallim-e-Urdu from Jamia Urdu, Aligarh to the B.T.C., their services could not have been cancelled. It is further urged that appellants' appointment has been made having possessed of the qualifications as mentioned in the advertisement and that being the case, it could not have been cancelled. On the other hand, it is urged by the learned counsel for the respondents that the recruitment to the pubic services should be held in accordance with the terms of the recruitment rules and the appellants could not claim any right over the post when they were not qualified to be appointed to the said post. The appellants have been given sufficient opportunity in the order of cancellation itself wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matics craft or particular language, as the case may be, as one of the subjects in which he or she has been examined for the purpose of such examination; and (ii) Training qualification consisting of Basic Teacher's Certificate, Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of Teaching or any other training course recognized by Government as equivalent thereto. The requisite qualification is High School Examination of the Board of High School and Intermediate Education, U.P. or equivalent qualification recognized by the State Government together with the training qualification which consisted either one among the Basic Teacher's Certificate (B.T.C.), Hindustani Teacher's Certificate, Junior's Teacher's Certificate, Certificate of Teaching or any other training course recognized by the State Government as equivalent thereto. Thus under the Rules, the basic qualification for the post of Asstt. Teacher, apart from the educational qualification, was the training qualification of the Basic Teacher's Certificate or Hindustani Teacher's Certificate or Junior Teacher's Certificate or Certificate of Teaching or equ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Secondly, in what circumstances or upon what occasions is the person claiming to be entitled to exercise the measure of control entitled to intervene. Thirdly, when the right to intervene is proved, what sanctions in fact is the latter entitled to impose upon the other. It is only upon a consideration of all these matters that the question of the application of the principle can properly be determined. However, in S.L. Kapoor vs. Jagmohan and Ors (supra), this Court has also observed as under :- In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its writ to compel the observance of natural justice, not because it is not nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C.C. 237, this Court has laid down that there can be certain situation 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 Aligarh Muslim University vs. Mansoor Ali Khan A.I.R. 2000 S.C. 2783, this Court considered the question whether on the facts of the case the employee can invoke the principle of natural justice and whether it is a case where, even if notice has been given, result would not have been different and whether it could be said that no prejudice was caused to him, if on the admitted or proved facts grant of an opportunity would not have made any difference. The Court referred to the decisions rendered in M.C. Mehta vs. UOI (supra), the exceptions laid down in S.L. Kapoor's case (supra) and K.L. Tripathi vs. State Bank of India A.I.R. 1984 S.C. 273, where it has been laid down that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) has to be proved. The Court has also placed reliance in the matter of S.K. Sharma vs. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te qualifications for appointment. In the present case, the appellants' case fall within the exception laid down in S.L. Kapoor's case (supra) and other supporting cases, as admittedly, the appellants were not qualified and they did not possess the B.T.C. or Hindustani Teacher's Certificate or Junior Teacher's Certificate or Certificate of Teaching or certificate of any other training course recognized by the State Government as equivalent thereto at the time of their initial appointment. In view of the basic lack of qualifications, they could not have been appointed nor their appointment could have been continued. Hence the appellants did not hold any right over the post and therefore no hearing was required before the cancellation of their services. In the present case, the cancellation order has been issued within a very short span of time giving no probability for any legitimate expectation to the appellants regarding continuation of their service. There was no separate appointment order issued in favour of the appellants but the memorandum dated 19.6.85 wherein the list of selected candidates was published, provided that all the selected candidates must join th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jamia Urdu, Aligarh, can be appointed in the State services. The orders do not equate the degree of Moallium-e-Urdu granted by Jamia Urdu, Aligarh to that of Basic Teacher's Certificate, Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of Teaching or any other training course, indicated in the Rule. As far as the training is concerned there is no equivalence of the Certificate of Moallium-e- Urdu. It is for the first time by Order dated 13.9.94 the Government issued an order whereby the Governor granted a sanction that Moallium-e-Urdu degree for teaching Urdu in Junior / Senior basic schools is equivalent to B.T.C.. It is settled law that the qualification should have been seen which the candidate possessed on the date of recruitment and not at a later stage unless rules to that regard permit it. The minimum qualification prescribed under Rule 8 should be fulfilled on the date of recruitment. Equivalence of degree of Moallium-e-Urdu, Jamia Urdu Aligarh with that of B.T.C. in the year 1994 would not entail the benefit to the appellants on the date they were appointed. The appellants could not have been appointed to the post of Asstt. Teachers w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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