JUDGMENT Sabhajeet Yadav, J.
1. The petitioner has filed the above noted writ petition seeking a writ of certiorari for quashing the order dated 2/3rd July, 1991 passed by District Inspector of Schools, Ghazipur contained in Annexure 3 of the writ petition whereby the petitioner's appointment on the post of lecturer in History' has been disapproved by cancelling or modifying/reviewing the earlier order of approval dated 4.3.1987 and the respondents 3 was permitted to work as lecturer in History in the institution in question.
2. The brief facts of the case are that Jharkhandey Mahadev Rashtriya Inter College is a recognised institution (hereinafter referred to as the institution) Under U.P. Intermediate Education Act, 1921. The Institution is also receiving grants in aid out of State fund for the purpose of payment of salary to the Staff of institution under the provisions of U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other employees) Act, 1971, herein after referred to as Salaries Act, 1971. One Gauri Shankar Roy, lecturer in History retired from service on 30th June, 1984. The aforesaid vacancy was intimated to the erstwhile U.P. Secondary Education Service Commission constituted under the U.P. Secondary Education Service Commission and Selection Board Act, 1982 (hereinafter referred to as Act-1982). The erstwhile Commission now (in short) Board did not recommend any person to be appointed on the post in question i.e. the post of lecturer in History in the institution, within prescribed time, therefore, post was advertised on 8.2.1987 on the notice Board of the Institution. The petitioner applied for his selection and appointment on the said post, in pursuance thereof the interview was held on 15.2.1987. The petitioner was selected by the selection committee constituted by the Management of the Institution as lecturer in History. Thereafter the petitioner was appointed by the Committee of Management of the institution vide its resolution dated 15.2.1987 on the aforesaid post on adhoc basis and he joined the post on 20.2.87 since then he is continuously working as such. It appears that necessary papers of appointment of the petitioner for approval has been forwarded to the District Inspector of Schools, who thereupon vide order dated 4.3.87 (Annexure 2 of the writ petition) approved the appointment of the petitioner on adhoc basis on the post of lecturer in History in the institution and in resultant vacancy of L.T. Grade teacher caused on account of the appointment of the petitioner on the post of lecturer in History on adhoc basis, the appointment of the respondents 3 namely Sri Vijay Shankar Tiwari as Assistant teacher in L.T. Grade on adhoc basis has also been approved by the District Inspector of Schools, by same order dated 4.3.1987 (Annexure 2 of the writ petition) Sri Vijay Shankar Tiwari is working as Assistant Teacher L. T. Grade from 13.3.1987.
3. It appears that Sri Vijay Shankar Tiwari had made a representation on 13.6.1987 before District Inspector of Schools, with regard to the irregularities committed in the selection and appointment on the post of lecturer in History in the institution and also made complaint to the Deputy Director of Education 5th Region Varanasi.. It is alleged that the copy of the such complaint had never been served to the petitioner but District Inspector of Schools, passed the impugned order on 2/3rd July, 1991 without any notice and opportunity of hearing to the petitioner whereby the District Inspector of Schools, has reviewed his earlier order of approval of appointment of the petitioner dated 4.3.1987 and cancelled the same with the result the petitioner reverted back to his original substantive post of Assistant Teacher L.T. Grade. Not only this but the District Inspector of Schools, by impugned order has treated and approved the appointment of Sri Vijay Shankar Tiwari Respondent No. 3 as lecturer in History in the institution in place of the petitioner who was appointed on resultant vacancy of Assistant Teacher L.T. Grade caused on account of aforesaid appointment of the petitioner on the post of lecturer in History in the institution. The District Inspector of Schools, has further directed to recover the difference of the entire salary paid to the petitioner on the post of lecturer in History w.e.f. 20.2.1987 till the date of impugned order dated 2/3rd July, 1991 passed by him hence this writ petition.
4. Learned counsel for the petitioner has contended that the order passed by the District Inspector of Schools, is contrary to the principles of natural justice and fair play in as much as the District Inspector of Schools, has no power to review his earlier order dated 4.3.1987 referred above by the impugned order passed against the petitioner. Learned counsel for the petitioner has further submitted that the petitioner has neither played any fraud nor misrepresented or concealed any fact so as to enable the District Inspector of Schools to review his earlier order dated 4.3.1987, therefore, the order passed by the District Inspector of Schools, against the petitioner is wholly without jurisdiction and contrary to law and not sustainable.
5. Contrary to it Sri Rajendra Tiwari learned counsel appearing for the respondents 3 has contended that the respondent No. 3 being fully eligible and qualified for the post of lecturer has applied for selection and appointment on the post of lecturer in History, but instead of considering his claim for appointment against the aforesaid post, the Committee of Management has wrongly appointed him on the post of Assistant Teacher L.T. Grade though he had sought his appointment on the post of lecturer in History. He felt aggrieved against his appointment on the post of Assistant Teacher L.T. Grade and moved a representation for redressal of his grievance before the Deputy Director of Education 5lh Region and other authorities of department of Education. Consequently District Inspector of Schools, has redressed his grievances while passing the impugned order. The impugned order is well within the ambit of his power and authority under law and cannot be called in question.
6. Heard learned counsel for the petitioner and learned standing counsel appearing for the respondents.
7. Thus on the basis of the rival contention and submissions of the learned counsel for the parties the first question arises for consideration as to whether the District Inspector of Schools, has power to review his own judgment or order or not? and before reviewing his order as to whether opportunity of hearing was required to be given to the petitioner or not? In this connection it is necessary to point out that it is well settled that every statutory functionary can exercise only those powers which are either expressly conferred by statute upon him or which can be exercised as incidental power or to effectuate the exercise of such power by necessary implication as implied power. The District Inspector of Schools being statutory functionary can also exercise only those powers which are either expressly conferred by statute or the power is vested with him by necessary implication.
8. At this juncture it is also necessary to mention here that power of review is statutory power it can be conferred by statute alone on the statutory authority in the aforesaid manner and unless such power is conferred by the statute, the same cannot be assumed automatically. Thus while examining the scope and ambit of power conferred upon the District Inspector of Schools including the power of review, it is necessary to examine the scheme of statute under which D.I.O.S. is invested with power to do anything. Before examining the scheme under lying in the statute having material bearing with the question in controversy involved in the case it would be useful to make some reference of certain decisions of this Court wherein the power of D.I.O.S. including power of review of order passed by him has been under consideration in context of scheme of different statutes.
9. In Radhe Shyam Chaube and Ors. v. The District Inspector of Schools, Jaunpur and Ors. 1977 All. L.J. 451, a Division Bench of this Court in context of Section 16-E of Intermediate Education Act has held as under:
2...There is no provision under the Intermediate Education Act or in the regulations framed thereunder conferring power on the District Inspector of Schools to review an order according approval under Section 16-E of the Act. The District Inspector of Schools, like any other statutory authority, has, however, power to recall or revoke its order if it is obtained by mistake, misrepresentation or fraud. But in the absence of any fraud, misrepresentation or mistake, the District Inspector of Schools has no jurisdiction to revoke his order. In the instant case the petitioners have alleged that the order of approval was not obtained by mistake, fraud or misrepresentation and, as such, the District Inspector of Schools had no jurisdiction to revoke his order. The District Inspector of Schools who was arrayed as respondent to the petition and to whom notices were issued by this Court has not appeared and no counter affidavits have been filed on his behalf controverting the allegations made in this petition. In the circumstances, it is clear that the order of approval was not obtained by mistake, misrepresentation or fraud. In Rajendra Tripathi v. Deputy Director of Education, Gorakhpur (1976) 2 All LR 518, the precise question was considered and it was held that in a case where an order was not obtained by fraud or misrepresentation, the statutory authority has no jurisdiction to review its order unless provision to that effect is contained in the Act or the Rules. In the absence of any statutory provision, the District Inspector of Schools had no power to review his order granting approval. We agree with the view taken in Rajendra Tripathi's case.
10. Similarly in Committee of Management, Nonapur Inter College v. District Inspector of Schools, Kanpur and Ors. 1979 (5) A.L.R. 168, a Division Bench of this Court in para 2 at page 169 of the decision held as under:
2...We point out at this place that in writ petition No. 12725 of 1975 Committee of Management S.A.V. Inter College v. District Inspector of Schools decided on 24th November 1977 a Divisional Bench of this Court held:-
Under the U.P. Intermediate Education Act as well as under the High Schools and Intermediate College (Payment of Salaries of Teachers and other Employees) Act, 1971, the District Inspector of Schools has to perform various administrative functions of statutory character in collaboration with the management of High Schools and Intermediate College. These duties cannot be discharged by the District Inspector of Schools unless he is in a position to find out on an administrative level as to who are the real office bearers of the college. For this limited purpose the District Inspector of Schools must be of necessity satisfy himself as to who, according to him, are validly elected office bearers of the institution....
11. In the Committee of Management, Adarsh Inter College, Manikpur v. Director of Education, Higher Secondary, U.P. Lucknow and Ors. (1981) UPLBEC 174. In para 12 of the decision this Court while dealing with the powers of District Inspector of Schools, in context of Section 16-G(3)(a) of the Act, 1921 held as under:-
12. On behalf of the petitioner it is next pressed that the DIOS had no jurisdiction to review his order dated May 2, 1979. It is true that no powers of review have been vested in the DIOS and that he could only recall his order dated May 2, 1979 if it could be shown that the said order have been obtained by means of fraud or misrepresentation. In the orders which are impugned in this writ petition no such ground has been stated. Learned counsel for the respondents have also not been able to show to us that the order dated May 2, 1979 was passed on the ground of fraud or misrepresentation.
12. Thus in view of the aforesaid legal position there can be no quarrel with the proposition that District Inspector of Schools, while acting in administrative capacity have power to review/cancel his earlier order, if it is found that order sought to be of reviewed is obtained by playing fraud or misrepresentation or based on mistakes of fact and/or error apparent on the face of record without any express power of review conferred by any statute upon him.
13. Now it is necessary to examine the provisions relating to adhoc appointment of teachers in privately managed recognised institutions under the provisions of U.P. Intermediate Education Act in context of the provisions of Act 1982 as amended from time to time. In this regard it is necessary to point out a Full Bench of this Court in Radha Raizada and Ors. v. Committee of Management, Vidyawati Darbari Girls Inter College and Ors. 1994 (3) UPLBEC 1551 has considered the method and manner of adhoc appointment under Section 18 and Removal of Difficulties Orders under the Act with effect from 31st July 1981 to 13th July 1992 in para 37 to para 45 of the aforesaid decision. While dealing with the provisions of Section 18 of Act 1982 as existing in the aforesaid period and provisions of Removal of Difficulties Orders in para 30, 31,32,33,34,35, 36 and 37 of the decision observed as under:
30. As stated earlier the purpose of the Act is to appoint teachers in the institution to he selected by the Commission of the Board as the case may be. Section 16 of the Act provides that notwithstanding anything to the contrary contained in the Intermediate Education Act but subject to the provisions of Sections 18, 21-B, 21-C, 21-D, 33 and 33-A of the Act, every appointment of teacher shall on or after 10th July, 1981 be made by the management only on the recommendation of the Commission. Its Sub-section (2) further provides that every appointment of a teacher in contravention of the provisions of Sub-section (1) shall be void. However, this Section 18 of the Act. Original Section 18 provided that where management has notified a vacancy to the Commission and (a) the Commission has failed to recommended the name of any suitable candidate or (b) the post of teacher has actually remained vacant for more than two months, then the Management may appoint by direct recruitment or promotion a teacher on purely adhoc basis from amongst the person possessing qualifications prescribed under the Intermediate Education Act or the regulation made thereunder. However, this Section 18 did not provide the procedure to be followed for appointment of adhoc teacher either by promotion or by direct recruitment. Since the Commission or the Board was not constituted therefore, the difficulty arose in making available teachers in the institutions and as such the Government by notification dated 31.7.1981, 11th September 1981 and 30th January 1982 issued separately Removal of Difficulties Orders three Removal of Difficulties orders known as first, Second and Third Removal of Difficulties Orders.
31. Paragraph 2 of the First Removal of Difficulties Order provides as follows:
The Management of an institution may appoint by promotion or by direct recruitment a teacher on purely adhoc basis in accordance with the provisions of this Order in the case of substantive vacancy caused by death, retirement, resignation or otherwise.
32. Paragraph 3 of the first Removal of Difficulties Order provide as follows:
Every promotion of an adhoc teacher under para 2 shall cease to have effect when a candidate recommended by the Commission or the Board as the case may be joint the post.
33. Paragraph 4 of the First Removal of Difficulties Order provides:
Every vacancy in the post of head of institution may be filled by promotion (a) in the case of an Intermediate College by the senior most teacher of the institution in the lecturer's grade, (b) In the case of High Schools raised to the level of Intermediate College by the Head Master of such High School and (c) in the case of Junior High School raised to the level of High School by the Head Master of such Junior High School.
34. Sub-paragraph (2) of Paragraph 4 of the order further provides that every-vacancy in the post of teacher in the lecturers grade may be filled by promotion by the senior most teacher of the institution in the trained graduate (grade).
35. Sub-paragraphs (3) and (4) of paragraph 4 of the order are not relevant as we are informed that C. T. Grade has now been abolished.
36. Paragraph 5 of the First Removal of Difficulties Order provides that where any vacancy cannot be filled by promotion under paragraph 4 of the order, same may be filled by direct recruitment in accordance with the procedure laid down in Clauses 2 to 5 of paragraph 5 of the order.
37. Second Removal of Difficulties Order provides for adhoc appointment against the short term vacancy in the posts of teachers caused by grant of leave to him or on account of his suspension duly approved by the District Inspector of Schools or otherwise. 'Thus, these provisions show that Section 18 and First Removal of Difficulties Order, both independently empowers the Management of institution to make adhoc appointment of teachers in the institution. But Section 18 does not provide the method and manner of such appointment. Whereas Removal of Difficulties Orders while empowering the management of the institutions to appoint teachers on adhoc basis further lay down the procedure of such adhoc appointment of teachers. In fact Section 18 as well as first Removal of Difficulties Order operate in one field and are part of one integrated scheme, namely for providing adhoc teachers who are urgently required in the institutions. Thus, adhoc appointment of teacher either under Section 18 of the Act or under the provisions of First Removal of Difficulties Orders has to be done in the manner laid down in paragraphs 4 and 5 of the first Removal of Difficulties Order, 1981.
14. In para 42 of the decision while dealing manner and mode of recruitment and necessity of approval of appointment this Court has held as under:
42. In view of these provisions the adhoc appointment of a teacher by direct recruitment can he resorted to only when the condition precedent for exercise of such powers as stated in paragraph 18 of the Act are present and only in the manner provided for in paragraph 4 of the Removal of Difficulties Order. This view of mine finds support in a number of decisions namely, Rang Bahadur Singh and Ors. v. District Inspector of Schools Saharanpur 1991 (2) UPLBEC page 1079 and Lalta Prasad Yadav and Ors. v. State of U.P. 1988 UPLBEC page 345. When a teacher is appointed on adhoc basis is in accordance with the paragraph 5 of the first Removal of Difficulties Order there is further no requirement of approval or prior approval of the District Inspector of Schools for such appointment. However it goes without saying that if a management without following the procedure indicated above makes an adhoc appointment the District Inspector of Schools possess general power under the payment of Salaries Act to stop payment of salary to such teacher.
15. Thus from the aforesaid authoritative decision of Full Bench of this Court it is clear that if a teacher is appointed on adhoc basis in accordance with paragraph 5 first of Removal of Difficulties Order 1981 there is no requirement of approval or prior approval of District Inspector of Schools for such appointment. However it goes without saying that if a management without following the procedure indicated herein before makes an adhoc appointment the District Inspector of Schools possess ample power under the Payment of Salaries Act to stop payment of salary to such teacher.
16. In Radhey Shyam Dube v. District Inspector of Schools, Deoria and Ors. 1987 (1) UPLBEC 553, a Division Bench of this Court in para 14 of the decision ruled that it cannot be accepted that D.I.O.S. has no power to approve or disapprove the appointment of a teacher or an employee of an institution. The D.I.O.S. has ample power to examine the validity of appointment for the purpose of payment of salary to the teacher or such employee under the provisions of the U.P. High School and Intermediate Colleges (Payment of Salaries to Teachers and other Employees) Act, 1971. The relevant part of observation is reproduced as under:
14. The first point urged by the learned counsel was that the District Inspector of Schools has no power to approve or disapprove the appointment of a teacher or an employee of an institution. He could not hence go into the validity of the petitioner's appointment. The submission is 'devoid of any merit. The petitioner himself has repeatedly asserted that what was sought by the District Inspector of Schools was financial approval which was undeniably necessary under the U.P. High School and Intermediate Colleges (Payment of Salaries to Teachers and other Employees) Act, 1971 (the Payment of Salaries Act' in brief) and the District Inspector of Schools has done neither more nor less than refused to accord the same.... The responsibility cast on the District Inspector of Schools to disburse salaries necessarily carries with it an implied power to satisfy himself that the appointment of the teacher or employee whose salary he is called upon to disburse was appointed in accordance with law and in a bona fide manner. For that limited purpose he is free to make an enquiry and satisfy himself within a reasonable time.
17. A Division Bench of this Court again in Smt. Dropad Mittal v. Mandaliya Balika Vidyalaya Narikshika Pratham (R.I.G.S. 1st) Meerut and Ors. (1992) 2 UPLBKC 1484, relying upon earlier Division Bench decision in para 8 of the decision held as under:
8. One of the submissions which has been made on behalf of the petitioners before us in these petitions is that in case of appointment of an adhoc teacher by the committee of management pending regular selection by the Commission established under Act No. 5 of 1982, the District Inspector of Schools does not possess any power to examine the validity of such appointment but should accord financial approval and should also pay salary to such teachers. As we have already held in the preceding paragraphs that no prior approval is necessary in case of appointment of a teacher under Section 18 nor even subsequent approval is required for the said appointment hut in case the salary of such teacher has to be paid by the State Government, the District Inspector of Schools is empowered to examine the validity of appointment for the purposes of payment of salary as held in a Division Bench decision of this Court in Radhey Shyam Dube v. District Inspector of Schools and Ors. 1987 U.P. Local Bodies and Educational Cases 553 with which we entirely agree.
18. Thus in view of the aforesaid settled legal position now there can be no scope for doubt to hold that appointment made on adhoc basis through direct recruitment against substantive vacancy of teachers under Section 18 of Act, 1982 read with U.P. Secondary Education Service Commissioner Removal of Difficulties (First) Order 1981, no approval of such appointment by D.I.O.S. is required. But the appointment made against short term vacancy through direct recruitment under the provisions of U.P.S.E.S.C. (Removal of Difficulties (Second) Order 1981 requires approval deemed or otherwise by D.I.O.S. under para 2(3)(iii) of the aforesaid order. The reason for such distinction appears to be plain and very simple. The selection for direct recruitment under the aforesaid first Removal of Difficulties Order to be made by the D.I.O.S. or Committee headed by him but in the Second Removal of Difficulties Order, such selection has to be made by the committee of management of the institution for this obvious reason adhoc appointment under first removal of difficulties order does not requires any approval by D.I.O.S. whereas adhoc appointment under second removal of difficulties orders requires approval from D.I.O.S.. Thus in view of aforesaid discussion it is to be held that in both the situation the D.I.O.S. has ample power to examine the legality and validity of appointment of such teachers before making his payment under the provisions of payment of salary Act. Once such power of financial approval and disapproval is accepted with the D.I.O.S. , his power to recall or review his own order cannot be denied.
19. Now it is necessary to examine as to whether earlier order passed by District Inspector of Schools, dated 4.3.1987 granting approval of appointment of the petitioner as lecturer in History on adhoc basis in the institution in question can be found faulty on any of the grounds mentioned hereinabove or not? In this connection it is to be pointed out that it is not in dispute that petitioner's appointment was made through direct recruitment method by the Committee of Management of the institution vide resolution dated 15.2.1987 on adhoc basis on the post of lecturer in History against the substantive vacancy caused on account of the retirement of Sri Gauri Shankar Roy who retired from service on 30.6.1984 purporting it to be under Section 18 of the Act, 1982 read with the provisions of the first Removal of Difficulties Order, 1981. In pursuance thereof the petitioner joined the post of lecturer in History on 20.2.1987 and since then he is working on the aforesaid post. Although the aforesaid appointment of the petitioner was approved vide order of District Inspector of Schools, dated 4.3.1987. But the respondent No. 3 has complained that the petitioner did not possess the minimum requisite educational qualification for appointment on the post of lecturer in History. His complaint was also to the effect that he was fully eligible and qualified for the post of lecturer in History and he has applied for the same, but instead of appointing him on the post of lecturer in history he was wrongly appointed on the post of Assistant Teacher L.T. Grade.
20. Now question arises for consideration as to whether the petitioner have had the requisite educational qualification for appointment on the post of lecturer in History at the time of his appointment or not? In this connection, it is necessary to point out that admittedly the petitioner possessed the degree of M.A. in Ancient History at the time of his selection and appointment on the post of lecturer in History. He had obtained the aforesaid degree from Gorakhpur University which confers degree of Ancient History as Pracheen Itihas. According to the learned counsel of the petitioner that aforesaid degree of M.A. in Ancient History i.e. Pracheen Itihas is equivalent to the M.A. in Ancient Indian History but the District Inspector of Schools, has wrongly stated that the degree of the petitioner from Gorakhpur University in the subject of M.A. in Ancient History is not equivalent to the prescribed qualification of Ancient Indian History whereas the petitioner possesses minimum qualification as amended in the year 1976 i.e. M.A. in Ancient History and was also trained. It is further submitted that there is no difference of M.A. in Ancient Indian History and M.A. in ancient History at all. Since the petitioner has obtained his M.A. Degree in Ancient History from Gorakhpur University in the year 1974 and he has also acquired B.Ed. Degree therefore he was a trained teacher and duly qualified to be appointed as lecturer in History. In Gorakhpur University Ancient Indian History is taught to obtain M.A. degree in Ancient History. A letter of Secretary, Madhyamic Education Board dated 10.7.1991 to the same effect has also been filed as Annexure 6 of writ petition in support of his aforesaid submission.
21. From a bare perusal of provisions of U.P. Intermediate Education Act and Regulations framed thereunder it is clear that in Chapter II of Regulation framed under the aforesaid Act along with Appendix A at Item No. 7 the educational qualifications for appointment on the post of lecturer in History have been given wherein in place of requisite educational qualification (a) M.A. in History Or (b) M.A. in Ancient Indian History Or (c ) Three years B.A. Honours Degree course in the History subject with training have been mentioned. The petitioner did not possess any of the educational qualification mentioned in the Appendix A of Chapter II of U.P. Intermediate Education Act for appointment on the post of lecturer in History subject therefore the petitioner's appointment on the post of lecturer in History cannot be said to be legal and valid.
22. In this connection it is also necessary to point out that a Division Bench of this Court comprising of Hon'ble Mr. Justice G.P. Mathur and Mr. Justice Bhagwandin, has considered similar issue in context of selection and appointment of Excise Constables under their relevant rules of recruitment and held that if a candidate does not possess necessary qualification or satisfies eligibility criterion his selection and appointment cannot be held valid in State of U.P. and Ors. v. Param Hansh Singh 2001 (3) A.W.C. 2106. While taking note and relying upon some decisions of Hon'ble Apex Court in para 14 and 15 of the decision this Court held as under:-
14. It is well settled by catena of decisions of Hon'ble Apex Court that a person who does not possess minimum qualification prescribed for a post cannot be appointed to that post. In District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and Anr. v. M. Tripura Sundari Devi it was held as follows :-
When an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned, the aggrieved are all those who has similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualification in such circumstances unless it is clearly stated that the qualifications are relaxable. No court should he a party to the perpetuation of the fraudulent practice.
15. In State of Rajasthan v. Hitendra Kumar Bhatt , the last date for receipt of application was 29.6.1992 and the minimum qualification prescribed was BSTC or its equivalent. The respondent had appeared in the B.Ed. examination but his result was declared on 6. 8.1992. By the interim order of the High Court in a writ petition, he was called for interview and was selected and appointed. In appeal, the Supreme Court held that the respondent was not eligible for consideration as he did not possess the qualification on the last date prescribed for submission of the application. It was further observed that relaxing the prescribed requirement in the case of one individual may, therefore, cause injustice to others and accordingly his appointment was set aside. In Union of India v. Ravi Shankar, it was held that the person not possessing the requisite qualification under the recruitment rules cannot have any right of appointment. Similar view was taken in Upen Chandra Gogai v. State of Assam .
23. Thus in view of aforesaid settled legal position the submission of the learned counsel for the petitioner in this regard appears to be wholly misconceived and misplaced for the simple reason that the petitioner did not possess any of the educational qualification prescribed for the post of lecturer in History. He is neither M.A. in History nor M.A. in ancient Indian History nor possess three years B.A. Honours degree course in history subject, therefore he was not eligible and qualified to be appointed as lecturer in History. In my opinion M.A. Degree in Ancient History from Gorakhpur University cannot be equated with M.A. in ancient Indian History prescribed under aforesaid regulation. More so the Court cannot substitute its opinion upon the opinion of the authorities empowered to prescribe the minimum educational qualification for recruitment on the post in question and cannot assume the role of appellate authority over rule making authority in the process of judicial review. Similarly the letter of Secretary Madhyamic Education dated 10.7.1991 contained in Annexure 6 of the writ petition cannot be treated to be substitute of prescribed minimum qualification for the said post.
24. Now coming to the relevant facts of the case and findings recorded by District Inspector of Schools, it appears that vide impugned order the District Inspector of Schools has recorded a categorical finding to the effect that the petitioner did not possess prescribed minimum requisite qualification for the post of lecturer in History as provided in the Regulations framed under UP Intermediate Education Act , therefore, the petitioner's appointment on the post of lecturer in History cannot be held to be legal and valid. However, in support of his such finding he has made further observation that while granting approval at earlier occasion to the appointment of the petitioner on the post of lecturer in History some facts were concealed and were not properly placed before the District Inspector of Schools, therefore, he can review his order and pass appropriate and correct order in accordance with the provisions of law. That apart, as noticed earlier, the petitioners selection for appointment was not made with due advertisement of vacancy in as much as by following the procedure prescribed under Section 18 read with the first Removal of Difficulties Order, 1981 as such it was not legal and valid. Thus in view of settled legal position since appointment of the petitioner was found illegal and invalid therefore findings of District Inspector of Schools, in this regard is fully justified and no interference is called for.
25. Now the next question arises for consideration as to whether before the impugned order was passed the District Inspector of Schools, was required to afford an opportunity of hearing to the petitioner or not? In this regard learned counsel for the petitioner has vehemently submitted that since the aforesaid order was passed without affording any opportunity of hearing to the petitioner to have his say in the matter therefore same being in utter violation of principles of natural justice cannot sustain. In this regard it is necessary to point out that although there is no quarrel with the proposition that before passing the impugned order against the petitioner adversely affecting his case on the question in issue it was necessary for the District Inspector of Schools, to afford an opportunity of hearing to him but while passing the impugned order he did not afford any opportunity of hearing to the petitioner. Now the question arises for consideration that what would be its effect? In this regard it is necessary to point out that Hon'ble Apex Court has considered similar controversy in a slightly different situation in context of violation of a facets of principles of natural justice in Managing Director E.C.I.L v. B. Karunakar Hon'ble Apex Court at page 1092 Hon'ble Apex Court held as under :
Hence, in all cases where the Inquiry Officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the courts and 'tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court Tribunal should not interfere with the order of punishment. The Court Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment (and not any internal appellate or revisional authority), there would he neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Courts Tribunals find that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment.
26. Thus in view of aforesaid settled legal position I have permitted the learned counsel for the petitioner to demonstrate before this Court that how his case was prejudiced because of denial of opportunity of hearing before District Inspector of Schools. In case he would have been afforded an opportunity as to whether he could have improved his case? At this juncture, it is necessary to point out that even after affording such opportunity learned counsel for the petitioner could not persuade the court to take different view in the matter. In this connection it would be useful to refer some more decisions of the Hon'ble Apex Court where the necessity of compliance of principles of natural justice have been dealt with at length.
27 In M.C. Mehta v. Union of India and Ors. of the decision of Hon'ble Apex Court has taken note of earlier decision rendered in S.L. Kapoor v. Jagmohan of the decision it was held that if on the admitted or indisputable factual position, only one conclusion is possible and permissible, the Court may not issue a 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. For ready reference paragraphs 21 and 22 of the aforesaid decision are reproduced as under :-
21. It is true that in Ridge v. Balwin 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 Chinappa Reddy, J. in S.L. Kapoor v. Jagmohan . After stating (P.395) (of SCC); (at P.147 of AIRO 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.
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.
28. However in subsequent decision rendered in Canara Bank and Ors. v. Shri Debasis Das and Ors. the Hon'ble Apex Court has held that where grant of opportunity in terms of principles of natural justice do not improve the situation, useless formality theory can be pressed into service. For ready reference the observation made by the Hon'ble Apex Court in paragraph 12 of the decision is reproduced as under:-
12. Residual and crucial question that remains to be adjudicated is whether principles of natural justice have been violated; and if so, what extent any prejudice has been caused. It may be noted at this juncture that in some cases it has been observed that where grant of opportunity in terms of principles of natural justice do not improve the situation, "useless formality theory " can be pressed into service.
29 The aforesaid principle has been reiterated again in Canara Bank v. V.K. Awasthy wherein in paragraph 18 of the judgment Hon'ble Apex Court has held as under :-
18. As was observed by this Court we need not to go into 'useless formality theory' in detail in view of the fact that no prejudice has been shown. As is rightly pointed out by learned counsel for the appellant unless failure of justice is occasioned or that it would not be in public interest to do so in particular case, this Court may refuse to grant relief to the concerned employee (see Gadde Venkateswara Rao v. Govt. of A.P. and Ors. ). It is to be noted that legal formulations cannot be divorced from the fact situation of the case. Personal hearing was granted by the Appellate Authority, though not statutorily prescribed. In a given case post-decisional hearing can obliterate the procedural deficiency of a pre-decisional hearing.
30. Thus in view of aforesaid settled legal position it is clear that on the basis of undisputed or indisputable factual position with regard to the lack of prescribed minimum educational qualification for the post in question , the petitioner could not improve his case even if he would have been afforded an opportunity of hearing by the District Inspector of Schools. Therefore, affording opportunity of hearing to the petitioner before District Inspector of Schools, remains a mere formality, thus, in such a situation useless formality theory can be pressed into service. Accordingly I have no hesitation to hold that non compliance of principle of natural justice by District Inspector of Schools, before passing the impugned order while recording adverse finding against the petitioner does not call for any interference by this Court under Article 226 of Constitution of India.
31. Now coming to the case of the respondents No. 3 it is to be seen that by the impugned order the District Inspector of Schools has treated him as lecturer in History and approved his appointment as such in the institution without any selection and his appointment on the post of lecturer in History. Assuming for the sake of arguments even if the allegation of the respondents No. 3 that his application was wrongly accepted against the vacancy of Assistant Teacher L.T. Grade in the institution whereas he has applied for the post of lecturer in History is accepted as correct and true, at the most the natural consequence of such wrong acceptance of his application would have been that selection made on the post of lecturer in History could be held contrary to law and should have been annulled or disapproved by District Inspector of Schools , leaving it open to the authorities to hold fresh selection on the post in question in accordance with the provisions of law. The District Inspector of Schools, could not have passed an order permitting the respondent No. 3 to work on the post of lecturer and could not approve his appointment on the said post as he has never been selected and appointed on the aforesaid post according to law, but he was appointed only on the post of Assistant Teacher L.T. Grade. The District Inspector of Schools, has no such power to treat the respondent No. 3 as lecturer in History without his proper selection and appointment on the aforesaid post according to the procedure of selection and appointments. Therefore, the impugned order passed by D.I.O.S. in this regard is highly arbitrary and contrary to law and cannot sustain. The impugned action of District Inspector of Schools, is also highly condemnable and is deprecated by this Court.
32. Thus in view of whole discussion, I have no hesitation to hold that the petitioner's appointment on the post of lecturer in History has been rightly disapproved by the District Inspector of Schools by cancelling or reviewing his earlier order of approval dated 4.3.1987 and reverted him back to his original post of Assistant Teacher L.T. Grade in the institution for reasons discussed herein before consequently against resultant vacancy, the appointment of respondent No. 3 as Assistant Teacher in L.T. Grade in the institution on adhoc basis is also liable to be struck down and he is liable to vacate the post of Assistant Teacher L.T. Grade in the institution. Similarly the District Inspector of Schools, could not treat and permit the respondent No. 3 to work as lecturer in History in the institution, therefore the observations made by the District Inspector of Schools, to the aforesaid effect is also contrary to law and liable to be struck down. Accordingly the appointment of the respondent No. 3 on the post of lecturer in History as well as Assistant Teacher in L.T. Grade both are hereby quashed and he is directed to vacate the aforesaid post of teachers in the institution. In the result the petitioner will continue to hold the post of Assistant Teacher L.T. Grade and the respondent No. 3 shall vacate the office of Assistant Teacher in L.T. Grade as well as lecturer in History if he has occupied the post of lecturer in pursuance of the impugned order passed by the District Inspector of Schools, referred above.
33. On account of observations made in the above noted writ petition, the interim order passed in the writ petition would automatically lapse. Consequently excess payment of salary made to the petitioner is liable to be recovered from him, as he was not entitled to hold the aforesaid post and draw any salary thereon, similarly the respondent No. 3 was also not entitled to hold any post of teacher in the institution and draw any salary thereon from the State Exchequer but taking this view in the matter would create great hardship to them. Therefore I am of the considered opinion that in given facts and circumstances of the case the excess payment of salary made to the petitioner on the post of lecturer shall not be recovered from him for the period in which he has been permitted to work on the aforesaid post of lecturer either at the strength of his illegal appointment or at the strength of interim order passed by this court during pendency of writ petition. Similarly the payment made to respondent No. 3 on the post of Assistant Teacher in L.T. grade by now shall not be recovered from him.
34. With the aforesaid observations and direction, writ petition stands finally disposed of.
35. There shall be no order as to costs.