WP 1824.02
HIGH COURT OF MADHYA PRADESH AT JBALPUR Single Bench : Hon. Shri Sanjay Yadav, J. Writ Petition No. 1824 of 2002
Chakresh Kumar Jain
Vs.
State of Madhya Pradesh and five others
---------------------------------------------------------------------------------- Shri Nilesh Kotecha, learned counsel for the petitioner. Shri Lalit Joglekar, learned Panel lawyer for the respondent/State of Madhya Pradesh and its functionaries. Shri R. K. Thakur, learned counsel for the respondent No. 5. ------------------------------------------------------------------------------------------------
ORDER
(11-05-2012)
Order dated 24-10-2001 passed by Chief Executive Officer, Janpad Panchayat, Baldeogarh, is principally challenged vide this writ petition. By impugned order appointment of petitioner and three others as Contract Teacher Grade-2 in Arts Faculty has been cancelled. The cancellation of appointment is on the basis of the enquiry conducted on the complaint regarding irregularity committed in the process of selection wherein it was found that though the credentials by the petitioner of having the experience of teaching in non-formal education were not attached with the application; yet subsequently in the tabulation sheet marks towards experience were interpolated. On the basis of the enquiry report Collector recorded the following finding vide his order dated 17-09-2001. In paragraph 8 the English translation whereof reads thus :- "8. Other irregularities reported by the investigation team were also examined point wise along with the present case. Ten posts of Contract Teacher Grade-II in Arts faculty were advertised for unreserved category. Shri Chakresh Kumar Jain submitted an application for one of the said posts; in that regard the investigation WP 1824.02
team has reported in Para - 2 of its report that a certificate about experience of teaching in informal schools was not enclosed with the application form and in the merit list prepared on that basis marks for experience of informal teaching were not shown eve. Later, at the time of selection, undue advantage has been extended after increasing and entering 20 marks in the column 'marks obtained' for aforementioned informal teaching experience before interview and he was selected. It is found on perusal of the record received together with the investigation report that name of Chakresh Kumar Jain is shown at roll no.-24 in the merit list published for male contract teachers Grade-II for Arts faculty under unreserved category, as per which he has obtained 22.95 marks against graduation and 5 against B.T.I./B.Ed. Examination. Whereas total marks obtained before the interview have been shown as 47.95 in column 4 of selection list submitted before the Selection Committee at the time of interview and 5.10 marks have been obtained in the interview. As such, he was selected by awarding 53.05 marks in aggregate. It is found on the perusal of on line record that certificate of experience of informal education was not included; it was later obtained by forgery, appended to a certificate of Instructor; Informal Education and he was selected by awarding 20 extra marks. No marks have been shown in the Merit List for want of the said certificate because it was not enclosed and the Merit List had been published. It's clear that having obtained the said certificate and added certificate of informal education to the acknowledgment by counterfeiting later aggregate 47.95 mark have been shown before Selection Committee after increasing 20 marks. Once the selection committee awarded marks in the merit list and published the merit list finally, the Selection Committee had no right to revise any error in it, if any. But, the Revising Officer or Appellate Officer had that right of revision and accordingly aggrieved person could move to the Appellate Authority for seeking relief. But the Selection Committee's proceeding to his selection by increasing 20 marks in the sheet it prepared at the time of interview is totally wrong and unacceptable. Thus, Chakresh Kumar Jain obtains 27.95 marks as per merit list and 5.10 marks in the interview, in total 33.05 marks. The highest and the lowest marks obtained by male individuals for contract teacher Grade-II in Art faculty under unreserved category are 64.05 and 37.73 respectively. Hence, as per rule, there is no ground for Chakresh Kumar Jain to secure any place in the Selection List and he cannot be appointed on the said post, as he has obtained 33.05 marks. Accordingly, it is prayed that steps be taken for appointment of the aspirant next in order of merit list WP 1824.02
after the Candidate-obtaining 37.73 marks at 10th place after removing name of Chakresh Kumar Jain from the selection list." (emphasis supplied)
2. Aggrieved whereby, petitioner filed a revision before the Commissioner who by order dated 25-02-2002 affirmed the order passed by Collector.
3. The petitioner submits that he has been condemned and visited with an adverse order, without affording him an opportunity of hearing. It is no doubt true that a person cannot be condemned without being heard as it is the basic principle of natural justice that in case where an adverse action is contemplated a person must be given an opportunity of hearing.
4. But whether in a case as the present one where the selection sought is on the basis of the fraud committed while getting the marks interpolated in the tabulation sheet an opportunity of hearing would be a hallmark of the proceedings.
5. In R. Vishwanatha Pillai v. State of Kerala and others : (2004) 2 SCC 105, it is held :
"15. ............ Wherein an appointment in a service has been acquired by practicing fraud or deceit, such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all."
6. Regarding non affording of opportunity of hearing trite it is that principle of natural justice is not set in straight jacket formal. True it is that in case of an action leading to adverse order an incumbent is entitled for reasonable opportunity of hearing, but in a case as the present one, where on the basis material on record the only conclusion is drawn and the incumbent has failed to prove the prejudice caused for non affording an opportunity of hearing an order cannot be interfered with. No maerial is brought on record to contradict the finding recorded s the enquiry regarding interpolation of marks.
7. In M. C. Mehta v. Union of India and others : AIR 1999 SC WP 1824.02
2583, the Apex Court observed :-
"20. Learned Senior Counsel for Bharat Petroleum contended that once natural justice was violated, the Court was bound to strike down the orders and there was no discretion to refuse relief and no other prejudice need be proved.
21. It is true that in Ridge v. Baldwin, 1964 AC 40, it has been held that breach of principles of natural justice is in itself sufficient to grant relief and that no further de facto prejudice need be shown. It is also true that the said principles have been followed by this court in several cases, but we might point out that this court has not laid down any absolute rule. This is clear from the judgment of Chinnappa Reddy, J., in S. L. Kapoor v. Jagmohan 1980 (4) SCC 379. After stating (page 395) that 'principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed' and that 'non-observance of natural justice is itself prejudice to a man and proof of prejudice independently of proof of denial of natural justice is unnecessary', Chinnappa Reddy, J., also laid down an important qualification (page 395) as follows : "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 necessary to observe natural justice, but because courts do not issue futile writs."
22. It is, therefore, clear that if on the admitted or indisputable factual position, only one conclusion is possible and permissible, the court need not issue a writ merely because there is violation of principles of natural justice."
In Aligarh Muslim University and others v. Mansoor Ali Khan : (2000) 7 SCC 529 it is observed :-
"21. As pointed recently in M.C. Mehta Vs. Union of India : (1999) 6 SCC 237, 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 vs. Government of Andhra Pradesh : (AIR 1966 SC 828), it is not necessary to quash the order merely because of violation of principles of natural justice."
8. In the case at hand as the report reveals that the marks WP 1824.02
were got interpolated in the tabulation sheet. The petitioner had complete liberty and the opportunity as well, to have disclosed the material to contradict the allegation that the tabulation sheet was got interpolated. There being no cogent material on record to substantiate that the document where on the additional marks were allotted to the petitioner at the time of interview and not after the final list is prepared, the report cannot be doubted. In view whereof no interference is evincible.
9. In the result petition fails and is hereby dismissed. No costs.
(SANJAY YADAV)
JUDGE
sc
WP 1824.02
HIGH COURT OF MADHYA PRADESH AT JBALPUR Single Bench : Hon. Shri Sanjay Yadav, J. Writ Petition No. 1824 of 2002
Chakresh Kumar Jain
Vs.
State of Madhya Pradesh and five others
ORDER
Post for 11-05-2012.
(Sanjay Yadav)
Judge