2. This intra court Special Appeal is directed against the judgement and order dated 15.5.2006 passed by Hon'ble Single Judge in Writ Petition No. 20056 of 2004, Shiv Prasad Misra Vs. State of U.P. and others, whereby writ petition filed by petitioner/appellant has been dismissed. Office has reported that the appeal is barred by time by 210 days. The appellant has moved delay condonation application supported by an affidavit. The cause shown in the affidavit filed in support of delay condonation application, in our opinion, is sufficient. Accordingly the delay condonation application is allowed and delay in filing above noted special appeal is condoned and appeal is treated to be within time.
3. Brief facts of the case are that the petitioner/appellant was appointed on daily wage basis on 18th April, 1987 on the post of Junior Clerk/Routine Grade Clerk in the establishment of respondent in pay scale of Rs. 950/- -Rs.1500/- and while continuing as such he had filed Writ Petition No. 25495 of 1990 seeking relief for regularization of his services and payment of salary at par with regular employee on the post in question inasmuch as payment of difference of arrears of salary since 1987onward. In the said writ petition, the petitioner had filed supplementary affidavit annexing therewith the U.P. Regularization of Daily Wages Appointment on Group 'C' Posts (outside the purview of U.P. Public Service Commission) Rules 1998 (herein after referred to as 1998 Rules) confining his claim only in respect of regularization of his services. The court without entering into the merit of the case in that petition had directed respondent no.2 i.e. Commissioner and Director, Employees Insurance vide order dated 18.5.2001 to consider the claim of regularization of petitioner/appellant under the aforesaid 1998 Rules and pass appropriate order in accordance with law within a period of three months. It is in purported compliance of the order aforesaid the Commissioner and Director, Employees Insurance-respondent no.2 vide order dated 31.5.2002 regularised the services of petitioner/appellant w.e.f. 18.4.1987.
4. It appears that subsequently thereto in the light of Government letter dated 31st July, 2003 respondent no. 2 passed an order dated 8.9.2003 whereby the date of regularization of petitioner/appellant has been changed from 18.4.1987 to 31.5.2000 i.e. with effect from the date on which the petitioner/appellant was actually regularised. It is against this order the petitioner filed Writ Petition no.20056 of 2004 which has been decided vide judgment and order dated 15.5.2006, gave rise cause of action of instant special appeal.
5. This special appeal has been filed inter alia on the ground that service of the petitioner/appellant was initially regularised by respondent no.2 vide order dated 31.5.2002 with effect from 18.4.1987 in pursuance of the judgement and order of this court dated 8.5.2001 passed in Writ Petition No. 25495 of 1990, earlier filed by the petitioner-appellant as such vide subsequent order dated 8.9.2003 passed by respondent no. 2, the aforesaid order dated 8.5.2001 passed by this Court in Writ Petition No. 25495 of 1990 could not be overruled. It is stated that earlier order passed by respondent no.2 could not be modified and that the date of regularization of services of petitioner/appellant could not be substituted as 31.5.2002 in place of 18.4.1987. It is also contended that the aforesaid order has been passed by respondent no.2 without affording any opportunity of hearing to the petitioner to have his say in the matter and that Hon'ble Single Judge has failed to consider the aforesaid aspect of the matter while deciding the case in question.
6. Per contra learned Standing Counsel while supporting the impugned judgement and order has justified the order dated 8.9.2003 inter alia that the mistake committed by respondent no.2 in the order dated 31.5.2002 in regularizing the services of petitioner/appellant with retrospective effect from 18.4.1987 has been corrected/rectified. He urged that in the given facts and circumstances of the case, the petitioner/appellant could not raise any legitimate grievance in the writ petition against the said order dated 8.9.2003 passed by respondent no.2.
7. The question arises for our consideration is that as to whether the order dated 8.9.2003 passed by respondent no.2 treating the regularization of services of petitioner w.e.f. 31.5.2002 instead of 18.4.1987 was in accordance with the provisions of 1998 Rules or whether under 1998 Rules, retrospective regularization of services of the petitioner-appellant was permissible or not?
8. In order to answer aforesaid question accurately the relevant provisions of 1998 Rules may be examined. Rules 1, 2 and 4 to 7 of the 1998 Rules are as under:-
"1. Short title and commencement.- (1) These rules shall be called the Uttar Pradesh Regularization of Daily Wages Appointment on Group 'C' Posts ( Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 1998.
(2) They shall come into force at once.
2. Overriding effect.- These rules shall have effect notwithstanding anything to the contrary contained in any other rules or orders.
4. Regularization of daily wages appointment on Group 'C' Posts.- (1) Any person who-
(i) was directly appointed on daily wage basis on Group 'C' Posts in the Government service before June 29, 1991 and is continuing in service as such on the date of commencement of these rules; and
(ii) possessed requisite qualification prescribed for regular appointment for that post at the time of such appointment under the relevant service rules on daily wages basis, shall be considered for regular appointment on Group 'C' post in permanent or temporary vacancy as may be available on that date of commencement of these rules, on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders.
(2) In making regular appointments under these rules, reservation for the candidates belonging to the Scheduled Castes, Scheduled Tribes, other Backward Classes and other categories, shall be made in accordance with the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and the Uttar Pradesh Public Services (Reservation for Physically Handicapped Dependants of Freedom Fighters and Ex-Servicemen) Act, 1993 as amended from time to time, and orders of the Government in force at the time of regularization under these rules.
(3) For the purpose of sub-rule (1) the appointing authority shall constitute Selection Committee in accordance with the relevant provisions of Service Rules.
(4) The appointing authority shall, having regard to the provisions of sub-rule (1), prepare an eligibility list of the candidates, arranged in order of seniority as determined from the date of order of appointment and, if two or more persons are appointed together, from the order in which their names are arranged in the said appointment order. The list shall be placed before Selection Committee along with their character rolls and such other records, pertaining to them, as may be considered necessary to assess their suitability.
(5) The Selection Committee shall consider the cases of the candidates on the basis of their records referred to in sub-rule (4) and if it considers necessary, it shall interview the candidates also to assess their suitability.
(6) The Selection Committee shall prepare a list of selected candidates arranging their names in order of seniority and forward the same to the appointing authority.
5. Appointments.- The appointing authority shall, subject to the provisions of sub-rule (2) of Rules 4, make appointments from the list prepared under sub-rule (6) of the said rule in the order in which their names stand in the list.
6. Appointments be deemed to be under the relevant service rules etc.- Appointments made under these rules shall be deemed to be appointments under the relevant Service Rules or orders, if any.
7. Seniority.- A person appointed under these rules shall be entitled to seniority only from the date of order of appointment after selection in accordance with these rules and shall, in all cases, be placed below the persons appointed in accordance with the relevant service rules, or as the case may be, the regular prescribed procedure, prior to the appointment of such person under these rules.
(2) If two or more persons are appointed together their seniority inter se shall be determined in the order mentioned in the order of appointment."
9. The 1998 Rules have been framed by Governor of State of U.P. in exercise of power contained under the proviso to Article 309 of the Constitution of India. They were notified and published in official Gazette of U.P. on 9th July, 1998. By virtue of sub-rule (2) of Rule-1, these Rules had come into force with immediate effect on the date of their publication in the Gazette. Rule-2 provides for overriding effect of the provisions of 1998 Rules upon any other Rules or orders. Rule-4 deals with the regularization of daily wages appointment on Group 'C' Posts. Sub-rule (1) of Rule-4 stipulates that any person who was directly appointed on daily wage basis on Group 'C' Posts in Government service before June 29, 1991and is continuing in service as such on the date of commencement of these rules and possessed requisite qualification prescribed for regular appointment for that post under the relevant service rules at the time of such appointment on daily wages basis, shall be considered for regular appointment on Group 'C' post in permanent or temporary vacancy as may be available on the date of commencement of these rules, on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders.
10. In substance Sub-rule (1) of Rule-4 prescribes eligibility of the candidate to be considered for regular appointment on Group 'C' against permanent or temporary vacancy available on the date of commencement of the said Rules. Sub-rule (2) of Rule-4 casts a duty upon the appointing authority to apply the rules of reservation applicable to the service of the Government of U.P. while making regular appointment under 1998 Rules. Sub-Rule 3 of Rule 4 provides for constitution of Selection Committee according to relevant service Rules. Sub-rules 4, 5 and 6 of Rule-4, provide for manner and method of selection of daily wage employees for regular appointment. Rule 5 of said rules obliges the appointing authority, to make appointment from the list prepared under Sub-rule 6 of Rule 4, subject to the provisions of Sub-rule-2 of Rule 4, in the order in which their names stand in the list. By virtue of Rule 6 of the said Rules, the appointments made under 1998 Rules, shall be deemed to be appointments under relevant service Rules or orders, if any. Rule-7 deals with seniority of a person appointed under these rules and shall be counted from the date of appointment under these rules.
11. Thus from a plain and joint reading of Rules-4, 5, 6 and 7 of 1998 Rules aforesaid, there can be no scope for doubt to hold that a person appointed on daily wage basis could not be regularised in service or could not be substantively appointed under 1998 Rules, prior to his appointment on the basis of selection made under these rules. In our considered opinion, such appointee can not claim his regularisation or substantive appointment with retrospective effect from the date of his initial appointment on daily wage basis rather such appointment can be made only from prospective effect. The aforesaid view is also fortified by Rule-7 of 1998 Rules wherein seniority is counted from the date of order of appointment after selection in accordance with the 1998 Rules. Accordingly, in our opinion, the regularization of petitioner/appellant made by the respondent no.2 on 31.5.2002 could not have been made earlier to 31.5.2002 under said Rules, as such the regularisation of the petitioner initially made by respondent no.2 vide order dated 31.5.2002 w.e.f. 18.4.1987 was wholly erroneous and was not permissible under 1998 Rules.
12. On the basis of argument advanced by Sri K.P. Agarwal Leanred Senior Counsel next question arises for our consideration is that as to whether by order dated 8.9.2003, the respondent no. 2 has overruled the decision dated 8.5.2001 rendered by this court in earlier writ petition filed by the petitioner-appellant? In this connection, it is to be noted that vide judgment and order dated 8.5.2001 passed in earlier writ petition filed by the petitioner this Court had not decided the claim of petitioner on merit, rather respondent no.2 was merely directed to consider the claim of regularization of services of the petitioner under 1998 Rules, in accordance with law.
13. There is nothing to indicate that the petitioner's services were intended to be regularised from a particular date. In absence of any such intendment or direction of this court in this regard, respondent no.2 was under legal obligation to consider the claim of the petitioner-appellant under said Rules in accordance with law. On such consideration, the services of the petitioner-appellant prior to which he was substantively appointed could not be regularised by respondent no.2. Admittedly after recommendation of Selection Committee, the petitioner-appellant was appointed on the post of Junior Clerk in substantive capacity on 31.5.2002 as such his regularization could not be made from any date prior to it i.e w.e.f. 18.4.1987. Such regularization of services of the petitioner-appellant with retrospective effect is not contemplated under 1998 Rules, rather it was contrary to it. Therefore, respondent no.2, has rightly rectified the mistake by subsequent order dated 8.9.2003 in the light of Government letter dated 31.7.2003 changing the date of regularization of the petitioner-appellant from 18.4.1987 to 31.5.2002 putting the record in order. Thus respondent no. 2 has not overruled the decision of this Court rendered in earlier writ petition of the petitioner-appellant as contended by Sri K.P. Agarwal. While passing the order dated 8.9.2003, the respondent no. 2 has not committed any illegality by changing the date of regularization of services of the petitioner-appellant from 18.4.1987 to 31.5.2002.
14. Now further questions which arise for our consideration, are as to whether whether this court in exercise of powers under Article 226 of the Constitution is bound to declare the order dated 8.9.2003 passed by respondent no.2 as void on the ground that said order was passed without prior opportunity of hearing to the petitioner i.e. in breach of the principles of natural justice as alleged or whether this court can refuse to grant relief on the ground that the facts of the case do not justify the exercise of discretion to interfere or because de facto prejudice has not been shown? and whether this court is not bound under Article 226 to strike down the said order on the ground of breach of natural justice, if such an action will result in the restoration of an earlier order of respondent no.2 dated 31.5.2002 which was otherwise illegal?
15. Since these two questions are connected, therefore, it would be convenient to deal with them together. In this connection it is to be noted that whenever there is clear violation of principle of natural justice, the courts can be approached for declaration that the order is void or for setting aside the same. The question however is whether this court in exercise of its discretion under Article 226 can refuse to exercise discretion on facts or on the ground that no de facto prejudice is established. Courts are often faced with a dilemma between the compliance of rules of natural justice and courts discretion to refuse relief even though rules of natural justice have been breached on the ground that no real prejudice is caused to the affected party. In Ridge Vs. Baldwin, 1969 AC 40, it has been held that breach of principle of natural justice is in itself sufficient to grant relief and no further de facto prejudice need to be shown. It is also true that said principle has been followed by Apex Court in several cases, but the Apex Court has not laid down any absolute rule in this regard for application in all the cases of breach of rules of natural justice as is clear from judgement of Hon'ble Justice Chinnapa Reddy in S.L. Kapoor Vs. Jagmohan A.I.R. 1981 S.C. 136, wherein after stating that "principle 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 prejudice independently of proof of denial of natural justice is unnecessary". Thereafter his Lordship further observed that "where on 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"
16. The aforesaid principle of law laid down by Apex Court S.L. Kapoor's case (Supra) has been followed in M.C. Mehta Vs. Union of India, A.I.R. 1999 S.C. 2583, wherein in para 22 of the decision Apex Court observed as under:
"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."
17. Thereafter in para 23 of the said decision the Apex Court has considered the cases relating to breach of natural justice where all facts are not admitted or are not at all beyond dispute, in such situation whether relief can be refused even if the court thinks that the cases of applicant is not one of the "real substance" or that there is not substantial possibility of his success or that the result will not be different even if the natural justice is followed. In this connection it would be useful to quote the observation of para 23 of the said decision as under:-
"23. Before we go into the final aspects of this contention, we would like to state that cases relating to breach of natural justice, do also occur where all facts are not admitted or are not all beyond dispute. In the context of those cases here is a considerable case law and literature as to whether relief can be refused even if the Court thinks that the case of the applicant is not one of "real substance" or that there is no substantial possibility of his success or that the result will not be different, even if natural justice is followed. See Malloch v. Aberdeen Corporation (1971) 1 WLR 1578, (per Lord Reid and Lord Wilberforce), Glyann v. Keele University, (1971) 1 WLR 87, Cinnamond v. British Airport Authority, 1980 (1) WLR 582 and other cases where such a view has been held. The latest addition to this view is R.v. Ealing Magistrates' Court exp. Fannaran, (1996) 8 Admn LR 351 (358) (See Desmith Suppl. p.89) (1998) where Straughton L.J. Held that there must be 'demonstrable beyond doubt' that the result would have been different. Lord Woolf in Lloyd v. McMahon (1987) 2 WLR 821 (862) has also not disfavoured refusal of discretion in certain cases of breach of natural justice. The New Zealand Court in McCarthy v. Grant 1959 NZLR 1014, however, goes half way when it says that (as in the case of bias), it is sufficient for the applicant to show that there is 'real likelihood- not certainty-of prejudice'. On the other hand, Garner Administrative Law (8th Edition 1996, pp. 271-272) says that slight proof that the result would have been different is sufficient. On the other side of the argument, we have apart from Ridge v. Baldwin (1969 AC 40), Megarry J. in John v. Rees, (1969) 2 WLR 1294, stating that there are always 'open and shut cases' and no absolute rule of proof of prejudice can be laid down. Merits are not for the Court but for the authority to consider. Ackner, J. has said that the "useless formality theory" is dangerous one and, however, inconvenient, natural justice must be followed. His Lordship observed that "convenience and justice are often not on speaking terms". More recently Lord Bingham has deprecated the 'useless formality' theory in R.v. Chief Constable of the Thames Valley Police Forces exp. Cotton 1990 IRLR 344, by giving six reasons. (see also his article 'Should Public Law Remedies be Discretionary?' 1991 PL 64). A detailed and emphatic criticism of the 'useless formality theory' has been made much earlier in 'Natural Justice, Substance or Shadow' by Prof. D. H. Clark of Canada (see 1975 PL pp, 27 -63) contending that Malloch and Glynn were wrongly decided. Foulkes (Administrative Law, 8th Ed. 1996, p.323), Craig (Administrative La, 3rd Ed. p. 596) and others say that the Court cannot pre-judge what is to be decided by the decision making authority. DeSmith (5thEd.1994 paras 10,031 ti 10m036) Says Courts have not yet committed themselves to any one view though discretion is always with the Court. Wade (Administrative Law, 5th ed. 1994,pp,526-530) says that while futile writs may not be issued, a distinction has to be made according to the nature of the decision. Thus, in relation to cases other than those relating to admitted or indisputable facts, there is considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove as case of substance or if he can prove a "real likelihood' of success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that even in cases, where the facts are not all admitted or beyond dispute, there is considerable unanimity that the Courts can, in exercise of their "discretion", refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma, (1996) 3 SCC 364: (1996 AIR SCW 3424: AIR 1996 SC 1669), Rajendra Singh v. State of M.P. (1996) 5 SCC460: (1996 AIR SCW 3424: AIR 1996 SC 2736), that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived."
18. It is clear from para. 24 of the said decision that Apex Court did not express any opinion, on the correctness or otherwise of the "useless formality theory" and left the matter to be decided in appropriate case and held that "in the case before us admitted or indisputable facts show that grant of a writ will be in vain as pointed out by Chinnappa Reddy,J". The aforesaid position in law was again reiterated by Apex Court in Canara Bank and others Vs. Debasis Das and others J.T. 2003 (3) S.C. 183 = 2003 (4) S.C.C. 557 and in Canara Bank Vs. V.K. Awasthy J.T. 2005 (4) S.C. 40.
19. Apart from aforesaid cases, there are cases for the proposition that it is not always necessary for the court to strike down an order merely because the order has been passed against the petitioner in breach of natural justice. The court can under Article 226 refuse to exercise its discretion of striking down the order, if such striking down will result in restoration of another order passed earlier in favour of petitioner and against the opposite party in violation of principles of natural justice or is otherwise not in accordance with law. We would like to refer two such cases decided by the Apex Court herein after.
20. In Gadde Venkateswara Rao Vs. Govt. of Andhra Pradesh AIR 1966 SC 828, where the Panchayat Samithi, in exercise of its statutory powers passed a resolution on 25-8-1960 to locate a primary health centre at Dharmajigudem. Later on, it passed another resolution on 29-5-1961 to locate it at Lingapalem. On a representation by villagers of Dharmajigudem, Government passed orders on 7-3-1962 setting aside the second resolution dated 29-5-1961 and thereby restoring the earlier resolution dated 25-8-1960. The result was that the health centre would continue at Dharmajigudem. In that case before passing the orders dated 7-3-62, no notice was given to the Panchayat Samithi.
21. The Apex Court traced the said order of the Government dated 7-3-1962 to Section 62 of the Act in question and if that were so, notice to the Samithi under Section 62(1) was found mandatory. Later, upon a review petition being filed, Government passed another order on 18-4-1963 cancelling its order dated 7-3-62 and accepting the shifting of the primary centre to Lingapalem. This order was passed without notice to the villagers of Dharmajigudem. This order of the Government was challenged unsuccessfully by the villagers of Dharmaji-gudem in the High Court. On appeal by the said villagers to the Apex Court, it was held that the latter order of the Government dated 18-4-1963 suffered from two defects, it was issued by Government without prior show cause notice to the villagers of Dharmaji-gudem and Government had no power of review in respect of Government orders passed under Section 62(1). But that there were other facts which disentitled the quashing of the order dated 18-4-63 even though it was passed in breach of principles of natural justice. The Apex Court noticed that the setting aside of the latter order dated 18-4-63 would restore the earlier order of Government dated 7-3-62 which was also passed without notice to the affected party, namely, the Panchayat Samithi. It would also result in the setting aside of a valid resolution dated 29-5-61 passed by the Panchayat Samithi. The Apex Court refused relief confirming the decision of the High Court that it was right in not interfering under Article 226 even if there was violation of natural justice. Hon'ble Mr. Justice Subba Rao (as he then was) observed (p. 189) (of SCR) : (at pp. 837 of AIR) as follows :
"Both the orders of the Government, namely, the order dated March 7, 1962 and that dated April 18, 1963, were not legally passed : the former, because it was made without giving notice to the Panchayat Samithi, and the latter, because the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act and also because it did notgive notice to the representatives of Dharmaji-gudem village.
His Lordship concluded as follows :
"In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the Government dated April 18, 1963? If the High Court had quashed the said order, it would have restored an illegal order - it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances of the case."
22. In Mohammad Swalleh v. Third Addl. District Judge, Meerut AIR 1988 SC 94, which arose under the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, the prescribed authority dismissed an application filed by the landlord and this was held clearly to be contrary to the very purpose of Section 43(2)(rr) of the Act. The District Court, entertained an appeal by the landlord and allowed the landlord's appeal without noticing that such an appeal was not maintainable. The tenant filed a writ petition in the High Court contending that the appeal of the landlord before the District Court was not maintainable. The High Court refused to interfere. On further appeal by the tenant, the Apex Court accepted that though no appeal lay to the District Court, the refusal of the High Court to set aside the order of the District Judge was correct as that would have restored the order of the prescribed authority, which was illegal.
23. The aforesaid cases are clear authority for the proposition that it is not always necessary for the Court to strike down an order merely because the order has been passed against the petitioner in breach of natural justice. The Court can under Article 226 refuse to exercise its discretion of striking down the order if such striking down will result in restoration of another order passed earlier in favour of the petitioner, in violation of principles of natural justice or is otherwise not in accordance with law.
24. Now coming to the facts of the case, we find that admittedly the petitioner-appellant was appointed as Junior Clerk on daily wage basis on 18.4.1987 and his services were regularized on 31.5.2002 w.e.f. 18.4.1987. In view of legal position stated herein before, the petitioner's services could not be regularised with retrospective effect from any early date of the order of regularization of his services was passed by the respondent no.2. we have already held that the regularization of services of the petitioner w.e.f. 18.4.1987 i.e. with retrospective effect was contrary to the provisions of 1998 Rules and as such was illegal. The aforesaid illegality was cured by respondent no.2 vide order dated 8.9.2003 whereby the petitioner's services were treated to be regularised w.e.f. 31.5.2002 that is from the date on which the actual order of his regularization was passed.
25. It is no doubt true that before passing the order dated 8.9.2003 against the petitioner no opportunity of hearing was given to him but in view of principles laid down by the Apex Court in para 60 of Delhi Cloth and General Mills Vs. Ludh Budh Singh AIR 1972 S.C. 1031, the employer could justify his action before the Labour court where employee would have all the opportunity in the world and also to adduce oral evidence in support of his case as well as prove his case by documentary evidence. The petitioner also has not disputed before us, the date of his appointment on daily wage basis as 18.4.1987 and date of regularization in service as 31.5.2002. Under 1998 Rules, in view of legal position stated earlier, the petitioner could not be treated to be regularised earlier to the date of the order of regularisation was passed by the respondent no.2. Therefore, in our considered view, even if the petitioner would have been given opportunity of hearing by respondent no.2 before correcting the mistake in date of regularization in the order dated 8.9.2003, the petitioner could not improve his case against the admitted facts and record.
26. Thus on admitted or indisputable facts only one conclusion, as drawn by respondent no.2 vide order dated 8.9.2003, was permissible under law and under 1998 Rules. Therefore, in view of law laid down by Apex Court in S.L. Kapoor's case (supra) reiterated in M.C. Mehta's case (supra), Canara Bank Vs. Debasis Dase case (supra) and Canara Bank Vs. V.K. Awasthy's case (supra), it is not necessary for this court in the peculiar facts and circumstances of the case, to strike down the order dated 8.9.2003 passed by the respondent no.2 and to remit the matter to him for passing order afresh after hearing the petitioner, which will be, in our considered opinion, an useless formality as we have given this opportunity to the appellant by hearing his counsel in detail. In such facts and circumstances of the case, issue of writ by this Court, would be in vain or in futility, therefore, the useless formality theory can be pressed into service.
27. Not only this but striking down the order dated 8.9.2003 passed by respondent no.2 will result in restoration of another order dated 31.5.2002 passed by him, whereby the petitioner's services were regularised with retrospective effect that is w.e.f. 18.4.1987, which was otherwise illegal order and contrary to the provisions of 1998 Rules. Thus, on both the counts, we find it to be fit case where this court should refuse to interfere in the the order dated 8.9.2003 passed by respondent no.2.
28. In view of foregoing discussions we do not find any illegality in the impugned judgment and order dated 15.5.2006 passed by Hon'ble Single Judge in writ petition. The special appeal is liable to be dismissed and is accordingly dismissed.
29. There shall be no order as to costs. The parties shall bear their own costs.