JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. The petitioner was appointed on the post of temporary Routine Grade Clerk w.e.f. 1st March, 1981, subject to approval of Director of Education, Allahabad. At the time of joining the said post, he had submitted his High School certificate with a written undertaking that he will pass the Intermediate examination to comply with the requirement of qualification necessary for the post within the limited prescribed time. Inspite of sufficient opportunity to qualify the Intermediate examination, he was not able to submit Intermediate examination certificate or mark sheet.
3. Counsel for the petitioner contends that the services of the petitioner have been terminated without holding any enquiry. It is contended that he has continuously worked as Routine Grade Clerk in William Holland University College till he fell ill on 1.3.1990. It is averred that he sent application for leave w.e.f. 1.3.1990 to 30.5.1990, but due to prolonged illness and advise of the doctor he sent application for extension of leave. It is submitted that when the petitioner was issued a fitness certificate by the Doctor on 31st March, 1992, he went to join his duties but he was not allowed by the concerned authority.
4. It appears from the record that the petitioner was, in the mean time, issued a show cause notice dated 20.3.1990 asking him to show cause why his services may not be terminated as he failed to fulfil the minimum educational requirement for the post, i.e. Intermediate and further that he was absent from duty for the last 2 months without any notice or application. The petitioner by letter dated 15th April, 1990, sent reply explaining the situation under which he was appointed on the basis of his educational qualification of High School and further he was under treatment and as such, unable to join his duties. He also alleges that he had worked and performed his duties in the months of January and February, 1990 and signed the attendance register.
5. The only point canvassed before this Court is that there was no charge of misappropriation and embezzlement of fund against the petitioner. He was terminated from service w.e.f. 15.3.1992 in violation of principles of natural justice, without holding any enquiry and without affording any opportunity of being heard to defend himself and prove his ignorance.
6. In the counter-affidavit it has been alleged that inspite of many opportunities given to the petitioner to qualify the Intermediate examination he did not pass the examination. He was given the charge of collecting the fee and room rent and other amounts from the inmates of the Hostel. But instead of issuing the receipt from the Hostel, he used to issue fee receipts on a plain paper and used to misappropriate the said amount deposited by the students Inmates. A copy of one of similar receipts obtained from one of the students inmates has been annexed as Annexure-C.A.-1 to the counter-affidavit. It is alleged in the counter-affidavit that during a surprise check it was found in the year 1988 that the petitioner had deposited deficit amount of Rs. 11,155 and embezzled the same. When the petitioner was asked about this amount he confessed his guilt in his own hand writing by letter dated 7.9.1988. A perusal of letter Annexure-C.A.-2 to the counter-affidavit shows that in his confession the petitioner has admitted the embezzlement and had shown his willingness to deposit the said amount in cash by 30th October, 1988. He had also shown his willingness to give back the record and receipt books, etc.
7. In para 6 of the counter-affidavit it has been stated that the petitioner ran way from the college along with the record and receipt books etc. in January, 1990. In these circumstances, a notice was issued asking him to furnish proof of passing Intermediate examination and his unexplained absence from the service to complete the account book and the receipt book of the college and return the misappropriated amount to the principal but even after receiving the said notice on 26.3.1990 the petitioner did not submit any reply and allegedly fell ill. It is contended by the respondents that the appointment of the petitioner was temporary on the said post with an undertaking that he would pass the Intermediate examination within the limited time as per mandatory requirement of the statute. It is further contended that he has made manipulations in the attendance register because it was in his custody and has run away with the records of the college.
8. It is admitted to the parties that for the post of Routine Grade Clerk the minimum qualification is Intermediate pass and the petitioner did not possess minimum qualification and as such, he was only kept as a temporary measure and his appointment was never approved by the Deputy Director of Education, Allahabad. Suffice it to say that the appointment of the petitioner as Routine Grade Clerk was void ab initio, which cannot be legalised merely because the management was also a party to the illegal appointment.
9. In para 19 of the writ petition, it has been stated that the services of the petitioner were terminated without affording any opportunity of being heard to the petitioner. The averments made in para 19 of the writ petition have been replied by the respondents in para 24 of the counter-affidavit which reads as under :
"That the contents of para 19 of the writ petition are absolutely incorrect and denied. In view of the confession made in writing by the petitioner nothing more was needed and the action was taken accordingly as decided by the Executive Committee against the petitioner who was temporary and unqualified."
Thus, the averments made in para 19 of the writ petition have not only been specifically denied but it has also been stated that in view of the confession made in writing by the petitioner, no action was needed.
10. It is also an admitted fact that the petitioner was not qualified for the post and in these circumstances whether principles of natural justice are not attracted in Kendriya Vidyalaya Sangathan and Ors. v. Ajay Kumar Das and Ors., 2002 (2) AWC 1598 (SC) : 2002 (93) FLR 971, it has been held that where order of appointment was invalid, the question of observance of principles of natural justice would not arise.
11. Coming to the question of embezzlement and misappropriation of money it appears from Annexure-C.A.-2 that the petitioner has In unequivocal terms accepted finding of short deposit of Rs. 11,155 and showed his willingness to deposit the aforesaid amount. The acceptance of the petitioner given in Annexure-C.A.-2 in this regard is quoted below :
"To, The Principal W.H.U. College, Allahabad.
Sir, On checking the receipt books 1901 to 2000 and 2100 to 2200 along with the show, the fee clerk, the amount deposited less is Rs. 11,155 (Rs. Eleven Thousand one hundred and fifty five only).
The unused receipt books i.e., the counterfoils yet to be checked are from series 1300 onwards but for the two checked.
Solicited that the said documents be provided with for the checking.
Sd. Illegible 7.9.1988 "To, The Principal William Holland University College, Allahabad.
Respected Sir, I agree with the finding of short deposit of the amount of Rs. 11,155 (Rupees Eleven Thousand one hundred fifty five only) in the fee collection.
I am willing to pay the gross amount of the four months (May, 1988 to August, 1988} and the balance I shall pay in cash by the 31st October, 1988.
The records and the receipt book etc. viz. receipt book including bank deposit slip and the fee register shall give by 8th of this month.
I am writing the note under no pressure from any body.
Sd. Illegible (R. R. Shah) Office Assistant W.H.U.C."
12. From perusal of Annexure-C.A. - 3, it is apparent that the petitioner has undertaken to further deposit Rs. 6,093. This letter of the petitioner dated 29.9.1989 is also relevant and is quoted below :
"To, The Principal W.H.U. College, Allahabad.
Sir, With due respect, I beg to inform you that as you know that I have deposited Rs. 11,000 (Rupees Eleven Thousand only) in cash in lieu of Rs. 17,093 (Rupees Seventeen Thousand Ninety Three only) deposited short by me during April, 1983 to July, 1989. Balance of Rs, 6,093 (Rupees Six Thousand Ninety Three only) may be adjusted from my salaries for 10 months i.e., 1st June, 1988 to March. 1989, which come to Rs. 9.217 (Rupees Nine Thousand Two hundred Seventeen only).
I shall be very grateful for this favour.
Thanking you Yours faithfully, (R. R. Shah) Office Assistant.
To, The Principal Verified and forwarded Sd. Illegible 29.9.1989."
13. In view of unequivocal confession made by the petitioner in the two letters dated 7.9.1988 and 29.9.1989 Annexures-2 and 3 reproduced in this Judgment and depositing of Rs. 11,155 towards making good embezzlement amount is sufficient and no further enquiry was needed thereafter. Following the ratio laid down by the Apex Court in the case of M.C. Mehta v. Union of India. AIR 1999 SC 2583; S.L. Kapoor v. Jagmohan, AIR 1981 SC 136 and Gadda Venkateshwara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828, it is held that the principles of natural Justice have not been violated in the Instant case as no prejudice can be said to have been caused to him as held by Supreme Court in case of Aligarh Muslim University v. Mansoor Ali, 2000 (4) AWC 2993 (SC) : AIR 2000 SC 2783.
14. He cannot have any legal right or even lien on the post. In so far as the question of violation of principle of natural Justice, suffice it to say these principles are not straightjacket formula applicable in all situations.
15. In case of temporary employee the employer has right to terminate the services of such employee according to the terms of contract of service Instead of holding enquiry even If the employee had been charged with misconduct. The petitioner did not submit proof of passing Intermediate examination, hence his services were liable to be terminated on that ground according to the terms of his appointment. He also did not give any reply to the notice of show cause hence, it was not necessary to hold any enquiry.
16. Thus, in the circumstances of this case no principles of natural Justice have been violated. In any case, termination of service is not liable to be Interfered in the circumstances of this case and it is not a fit case for exercise of jurisdiction under Article 226 of the Constitution of India.
17. For the reasons stated above, the petition is dismissed.
18. No order as to costs.