Kumar Sonkar Vs. Union of
India & Others
 Insc 192 (23 February 2007)
S.B. Sinha & Markandey Katju
S.B.SINHA, J :
Banaras Hindu University (for short, 'the University) issued an
advertisement on 25.03.1995, iner alia, for filling up a vacant post of
lecturer in Tridosa Vigyan in the Department of Basic Principles. Relevant
clauses of the said advertisement are as under :
"Those who have applied earlier are required to apply again on the
prescribed format for the post, otherwise their candidature will not be
considered. They will, however, be exempted from any payment against the
application. Their cases will be considered according to the up-dated
Essential qualifications prescribed for the said post are :
"Lecturer in Tridosa Vigyan (One) [Department of Basic Principles]
Essential ABMS or equivalent examination from any recognized institution.
M.D. in Sharir-Kriya Desirable
Standard publication in the filed of
Neurophysiology, Neurochemistry, related to Tridosa Vigyan.
Knowledge of Modern Medical Science
Appellant applied for the said post on 30.05.1995. As on that day, he had
not completed his M.D. in Sharir Kriya, with his application he enclosed a
certificate issued by Professor and Head of the Department of Basic Principles,
Institute of Medical Sciences, Banaras Hindu University, which reads as under
"This is to certify that Dr. Ashok Kumar Sonkar son of Dr. K.P. Sonkar,
is a bona fide student of the Department of Basic Principles. He was admitted
for the Degree of M.D. (Ay.) Basic Principles (Sharir-Kriya) on 1st August, 1992 and his final examination will be held in October, 1995. His thesis
entitled "Clinical evaluation of therapeutic potential of certain
indigenous drugs in seizure disorders" will be submitted in the month of
He is sincere, hard working young man, zealous and outwitted scholar and
sound character of this department. He is fit to be entrusted for clinical,
research, teaching and administrative responsibilities.
I wish him all success in future life."
He passed the said examination only on 30.10.1995. He was allowed to appear
before the Selection Committee, despite the fact that he did not hold the
requisite qualification till the date of filing of such application. He,
however, was selected and offered an appointment. He joined the said post.
In the meanwhile, Respondent No. 4 filed a writ petition before the
Allahabad High Court, which was marked as Writ Petition No. 20883 of 1997. The High
Court by reason of an order dated 17.02.1998 dismissed the said writ petition
on the premise that he had an alternative remedy.
Respondent No.4 thereafter moved the President of India in his capacity of
the 'Visitor' of the said University. The 'Visitor' was of the opinion that the
selection process was illegal. The selection proceeding, therefore, was set
aside. However, before the said order was passed, the comments of the
University were called for. The University offered its comments. The order of
the Visitor was communicated by the Desk Officer, Ministry of Human Resource
Development (Department of Secondary Education and Higher Education),
Government of India, by a letter dated 18.10.2000, intimating the Registrar of
the University that the President of India in his capacity as the Visitor of
the University had annulled the appointment of the appellant in exercise of the
power conferred upon him under Section 5(7) of the Banaras Hindu University
Act, 1915 (for short, 'the Act'), the relevant portion of the said letter is as
"Kindly refer to your letter No.AA/VI-SC/1460 dated the 15 July, 2000
forwarding therewith 1460 a reply of the University to the show cause Notice
issued in exercise of the powers conferred upon the President of India in his
capacity as the Visitor of the University under Section 5(7) of the Banaras Hindu
University Act, 1915. The Visitor,
after considering the reply of the University, pleased to annul the appointment
Ashok Kumar Sonkar as Lecturer in Tridosh Vigyan IMS, Banaras Hindu University
with immediate effect.
This issue on the basis of communication received from President's
secretariat vide their No. 28(2)(xiii) 98- CA (II), dated 21.03.2000. The
University may take further necessary action immediately after intimation to
A writ petition was filed by the appellant before the Allahabad High Court.
By reason of the impugned judgment dated 26.05.2006, the said writ petition has
Mr. V. Shekhar, the learned counsel appearing on behalf of the appellant, in
support of this appeal, would submit :
In absence of any cut-off date having been specified in the advertisement
and in view of the fact that the statute or statutory rules in this behalf are
also silent in regard to the question as to whether the Selection Committee
could allow the appellant to take part in the selection process as he had
completed his M.D. before he was considered therefor, the High Court committed
a manifest error in arriving at the finding.
In view of the fact that the
appellant was confirmed in the post of lecturer, it was obligatory on the part
of the Visitor to give an opportunity of hearing to the appellant.
The University having taken a
definite stand before the High Court in the earlier writ petition that the
appellant was selected in terms of the prevailing practice, the impugned
judgment is unsustainable.
The jurisdiction of the Visitor being
limited under sub-section (2) of Section 5 of the Act, new appointment could not
have formed subject- matter of his decision.
Respondent No. 4 being himself ineligible, he did not have any locus standi to maintain the writ petition or make a representation before the
Visitor of the University.
In any event, keeping in view the
facts and circumstances of the case, it was obligatory on the part of the High
Court in equity to refuse to exercise its discretionary jurisdiction.
Mr. G.E. Vahanvati, the learned Solicitor General and Dr. Rajeev Dhawan, the
learned Senior Counsel, appearing on behalf of the respondents, however,
supported the impugned judgment.
Section 5 of the Act provides that the President of India shall be the
Visitor of the University. Sub-section (7) of Section 5 of the Act, however,
confers power upon the Visitor of the University, without prejudice to the
other provisions contained in the said Section, by order in writing, to annul any
proceeding of the University which is not in conformity with the said Act, the
Statutes or the Ordinances. Proviso appended thereto, however, mandates the
Visitor to call upon the University to show cause why such an order should not
be made and if any cause is shown within a reasonable time shall consider the
same, before making any such order.
Indisputably, the recruitment of the academic staff of the University is
governed by the provisions of the said Act and the Statutes and Ordinances
The question as to what should be the cut-off date in absence of any date
specified in this behalf either in the advertisement or in the reference is no
longer res integra. It would be last date for filing application as would
appear from the discussions made hereinafter.
The question came up for consideration, inter alia, before a 3-Judge Bench
of this Court in Ashok Kumar Sharma and Another etc. v. Chander Shekher and
Another etc. [(1993) Supp. (2) SCC 611], wherein Thommen, J.
speaking for himself and Ramaswami, J. opined :
"It is true Rule 37 is in terms applicable only to Public Service
Commission candidates and due notice of provisional entertainment of their
application, subject to their passing examination before the date of interview,
is a requirement peculiar to Rule 37 and is not applicable to the present case.
If the principle of Rule 37 is by
analogy applicable, the fact that notice of provisional entertainment of
applications, subject to passing of the examination before the date of
interview, is a requirement in the interests of candidates who fell within that
category. The appellants are by analogy persons of that category, but they have
no complaint on any such ground.
The fact is that the appellants did
pass the examination and were fully qualified for being selected prior to the
date of interview. By allowing the appellants to sit for the interview and by
their selection on the basis of their comparative merits, the recruiting
authority was able to get the best talents available. It was certainly in the
public interest that the interview was made as broad based as was possible on
the basis of qualification. The reasoning of the learned Single Judge was thus
based on sound principle with reference to comparatively superior merits. It was
in the public interest that better candidates who were fully qualified on the
dates of selection were not rejected, notwithstanding that the results of the
examination in which they had appeared had been delayed for no fault of theirs.
The appellants were fully qualified on the dates of the interview and taking
into account the generally followed principle of Rule 37 in the State of Jammu &
Kashmir, we are of opinion that the technical view adopted by the learned Judges
of the Division Bench was incorrect and the view expressed by the learned Single
Judge was, on the facts of this case, the correct view. Accordingly, we set
aside the impugned judgment of the Division Bench and restore that of the
learned Single Judge. In the result, we uphold the results announced by the
recruiting authority. The appeal is allowed in the above terms. However, we make
no order as to costs."
Sahai, J., however, gave a dissenting note, stating :
"The notification, therefore, provided not, only, the conditions which
a candidate was required to possess when applying for the post mentioned in the
notification but he was also required to support it with authenticated
certificate and if he failed to do so then the application was not liable to be
entertained. In legal terminology where something is required to be done and
the consequences of failure to do so are also provided then it is known as
mandatory. The mandatory character of possessing the requirements as provided
in the first part of the notification stands further strengthened from the
third and last part of the notification which prohibited the candidates from
applying if they did not possess the requisite qualifications. In view of these
clear and specific conditions laid down in the advertisement those candidates
who were not possessed of the B.E.
qualifications were not eligible for applying nor their applications were
liable to be entertained nor could they be called for interview. Eligibility
for the post mentioned in the notification depended on possessing the
qualification noted against each post. The expression, shall be possessed of
such qualifications, is indicative of both the mandatory character of the
requirement and its operation in praesenti. That is a candidate must not only
have been qualified but he should have been possessed of it on the date the
application was made. The construction suggested by the learned counsel for the
appellant that the relevant date for purposes of eligibility was the date of
interview and not the date of application or July 15, 1982 the last date for
submission of forms is not made out from the language of the notification.
Acceptance of such construction would result in altering the first part of the
advertisement prescribing eligibility on the date of applying for the post as
being extended to the date of interview. If it is read in the manner suggested
then the requirement that incomplete applications and those not accompanied by
the requisite certificates shall not be entertained, shall become meaningless.
Purpose of filing certificate along with application was to prove that the
conditions required were satisfied. Non-filing of any of the certificates could
have resulted in not entertaining the application as the requirements as
specified would have been presumed to be non-existent. Fulfilment of conditions
was mandatory and its proof could be directory. The former could not be waived
or deferred whereas the defect in latter could be cured even subsequently. That
is proof could be furnished till date of interview but not the eligibility to
apply for the post. Any other construction would further be contrary to the
last part of the notification."
A review application was filed which was admitted. The matter was again
placed before a 3-Judge Bench of this Court in Ashok Kumar Sharma and Others v.
Chander Shekhar and Another [(1997) 4 SCC 18]. One of the issues which fell for
consideration of the Bench being Issue No. 1 reads as under :
"(1) Whether the view taken by the majority (Honble Dr Thommen and V.
Ramaswami, JJ.) that it is enough for a candidate to be qualified by the date
of interview even if he was not qualified by the last date prescribed for
receiving the applications, is correct in law and whether the majority was
right in extending the principle of Rule 37 of the Public Service Commission
Rules to the present case by analogy?"
It was held :
"So far as the first issue referred to in our Order dated 1-9-1995 is
concerned, we are of the respectful opinion that majority judgment (rendered by
Dr T.K. Thommen and V. Ramaswami, JJ.) is unsustainable in law. The proposition
that where applications are called for prescribing a particular date as the
last date for filing the applications, the eligibility of the candidates shall
have to be judged with reference to that date and that date alone, is a
well-established one. A person who acquires the prescribed qualification
subsequent to such prescribed date cannot be considered at all. An
advertisement or notification issued/published calling for applications constitutes
a representation to the public and the authority issuing it is bound by such
representation. It cannot act contrary to it. One reason behind this
proposition is that if it were known that persons who obtained the
qualifications after the prescribed date but before the date of interview would
be allowed to appear for the interview, other similarly placed persons could
also have applied. Just because some of the persons had applied notwithstanding
that they had not acquired the prescribed qualifications by the prescribed
date, they could not have been treated on a preferential basis. Their
applications ought to have been rejected at the inception itself. This
proposition is indisputable and in fact was not doubted or disputed in the
majority judgment. This is also the proposition affirmed in Rekha Chaturvedi v.
University of Rajasthan. The reasoning in the majority opinion that by
allowing the 33 respondents to appear for the interview, the recruiting
authority was able to get the best talent available and that such course was in
furtherance of public interest is, with respect, an impermissible
justification. It is, in our considered opinion, a clear error of law and an
error apparent on the face of the record. In our opinion, R.M. Sahai, J. (and
the Division Bench of the High Court) was right in holding that the 33
respondents could not have been allowed to appear for the interview.
The said decision is, therefore, an authority for the proposition that in
absence of any cut-off date specified in the advertisement or in the rules, the
last date for filing of an application shall be considered as such.
Indisputably, the appellant herein did not hold the requisite qualification
as on the said cut-off date. He was, therefore, not eligible therefor.
In Bhupinderpal Singh & Others v. State of Punjab & Others [(2000) 5
SCC 262], this Court moreover disapproved the prevailing practice in the State
of Punjab to determine the eligibility with reference to the date of interview,
inter alia, stating :
"Placing reliance on the decisions of this Court in Ashok Kumar
Sharma v. Chander Shekhar, A.P. Public Service Commission v. B. Sarat Chandra,
District Collector and Chairman, Vizianagaram Social Welfare Residential School
Society v. M. Tripura Sundari Devi, Rekha Chaturvedi v. University of
Rajasthan, M.V. Nair (Dr) v. Union of India and U.P. Public Service Commission
U.P., Allahabad v. Alpana the High Court has held
that the cut-off date by reference to
which the eligibility requirement must be satisfied by the candidate seeking a
public employment is the date appointed by the relevant service rules and if
there be no cut-off date appointed by the rules then such date as may be
appointed for the purpose in the advertisement calling for applications;
that if there be no such date
appointed then the eligibility criteria shall be applied by reference to the
last date appointed by which the applications have to be received by the
competent authority. The view taken by the High Court is supported by several
decisions of this Court and is therefore well settled and hence cannot be found
fault with. However, there are certain special features of this case which need
to be taken care of and justice be done by invoking the jurisdiction under
Article 142 of the Constitution vested in this Court so as to advance the cause
[See Jasbir Rani and Others v. State of Punjab & Another [JT 2001 (9) SC
351 : (2002) 1 SCC 124].
Yet again in Shankar K. Mandal and Others v. State of Bihar and Others
[(2003) 9 SCC 519], this Court held that the following principles could be
culled out from the aforementioned decisions :
"The cut-off date by reference to which the eligibility
requirement must be satisfied by the candidate seeking a public employment is
the date appointed by the relevant service rules.
If there is no cut-off date appointed
by the rules then such date shall be as appointed for the purpose in the
advertisement calling for applications.
If there is no such date appointed
then the eligibility criteria shall be applied by reference to the last date
appointed by which the applications were to be received by the competent
In M.A. Murthy v. State of Karnataka & Others [(2003) 7 SCC 517], a
contention was made that Ashok Kumar-II (supra) was to operative prospectively
or not. The said contention was rejected, stating :
"It is for this Court to indicate as to whether the decision in
question will operate prospectively. In other words, there shall be no
prospective overruling, unless it is so indicated in the particular decision.
It is not open to be held that the decision in a particular case will be
prospective in its application by application of the doctrine of prospective
overruling. The doctrine of binding precedent helps in promoting certainty and
consistency in judicial decisions and enables an organic development of the law
besides providing assurance to the individual as to the consequences of
transactions forming part of the daily affairs. That being the position, the
High Court was in error by holding that the judgment which operated on the date
of selection was operative and not the review judgment in Ashok Kumar Sharma
case No. II. All the more so when the subsequent judgment is by way of review
of the first judgment in which case there are no judgments at all and the
subsequent judgment rendered on review petitions is the one and only judgment
rendered, effectively and for all purposes, the earlier decision having been
erased by countenancing the review applications. The impugned judgments of the
High Court are, therefore, set aside."
Possession of requisite educational qualification is mandatory. The same
should not be uncertain. If an uncertainty is allowed to prevail, the employer
would be flooded with applications of ineligible candidates. A cut-off date for
the purpose of determining the eligibility of the candidates concerned must,
therefore, be fixed. In absence of any rule or any specific date having been
fixed in the advertisement, the law, therefore, as held by this Court would be
the last date for filing the application.
Recently, this Court in Kendriya Vidyalaya Sangathan and Others v.
Sajal Kumar Roy and Others [(2006) 8 SCC 671], opined that the conditions
laid down for exercising the power of relaxation must be scrupulously followed,
"The appointing authorities are required to apply their mind while
exercising their discretionary jurisdiction to relax the age limits. Discretion
of the authorities is required to be exercised only for deserving candidates
and upon recommendations of the Appointing Committee/Selection Committee. The
requirements to comply with the rules, it is trite, were required to be
complied with fairly and reasonably. They were bound by the rules. The
discretionary jurisdiction could be exercised for relaxation of age provided
for in the rules and within the four corners thereof. ..."
Therein, this Court noticed the decision in Food Corporation of India and
Ors. v. Bhanu Lodh and Ors. [(2005) 3 SCC 618], wherein, inter alia, it was
"The power of relaxation is intended to be used in marginal cases where
exceptionally qualified candidates are available. We do not think that they are
intended as an "open sesame" for all and sundry. The wholesale go- by
given to the Regulations, and the manner in which the recruitment process was
being done, was very much reviewable as a policy directive, in exercise of the
power of the Central Government under Section 6(2) of the Act"
We, therefore, see no infirmity in the judgment of the High Court, in this
The power of the Visitor is not only confined under sub-section (2) of
Section 5, but also under sub-section (7) of Section 5 of the Act. Even
otherwise sub-section (2) of Section 5 cannot be construed narrowly. The power
of the Visitor to cause an inquiry to be made is in respect of any matter
connected with the University. Sub-section (7) of Section 5 provides for a
power in the Visitor without prejudice to the provision contained in
sub-sections (2) to (6) of Section 5 of the Act. An express power, thus, has
been conferred upon the Visitor to annul any proceeding of the University.
The only condition attached thereto is that the same should found to be not
in conformity with the statutes or ordinances. The selection process carried
out by the Selection Committee would indisputably be a proceeding under the
Act. Section 17 provides for a statute making power, including clause (l),
which reads as under :
"(l) the classification and the manner of appointment of teachers in
the University and the colleges;"
Submission of Mr. Shekhar that the Visitor committed an error in passing the
impugned judgment as 'any irregularity in the procedure by any authority shall
not render the same invalid, unless the same affects the merits of the case' is
stated to be rejected. Appointment of a teacher must conform to the
constitutional scheme as adumbrated under Articles 14 and 16 of the
Constitution of India and the terms of the Act or the statute or ordinances
governing the field. Any violation of the provisions thereof would entitle the
Visitor to exercise his jurisdiction under sub-section (7) of Section 6. It is
also beyond any cavil that in exercising the said power, the statutory
provisions interpreted by this Court must be followed.
This bring us to the question as to whether the principles of natural
justice were required to be complied with. There cannot be any doubt whatsoever
that the audi alteram partem is one of the basic pillar of natural justice
which means no one should be condemned unheard. However, whenever possible the
principle of natural justice should be followed.
Ordinarily in a case of this nature the same should be complied with.
Visitor may in a given situation issue notice to the employee who would be
effected by the ultimate order that may be passed. He may not be given an oral
hearing, but may be allowed to make a representation in writing.
It is also, however, well-settled that it cannot be put any straight jacket
formula. It may not be in a given case applied unless a prejudice is shown. It
is not necessary where it would be a futile exercise.
A court of law does not insist on compliance of useless formality. It will
not issue any such direction where the result would remain the same, in view of
the fact situation prevailing or in terms of the legal consequences.
Furthermore in this case, the selection of the appellant was illegal. He was
not qualified on the cut off date. Being ineligible to be considered for
appointment, it would have been a futile exercise to give him an opportunity of
In Aligarh Muslim University and Others v. Mansoor Ali Khan [(2000) 7 SCC
529], the law is stated in the following terms :
"The useless formality theory, it must be noted, is an exception.
Apart from the class of cases of admitted or indisputable facts leading only to
one conclusion referred to above, there has been considerable debate on the
application of that theory in other cases. The divergent views expressed in
regard to this theory have been elaborately considered by this Court in M.C.
Mehta referred to above. This Court surveyed the views expressed in various
judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham,
Megarry, J. and Straughton, L.J. etc. in various cases and also views expressed
by leading writers like Profs. Garner, Craig, de Smith, Wade, D.H. Clark etc.
Some of them have said that orders passed in violation must always be quashed
for otherwise the court will be prejudging the issue. Some others have said
that there is no such absolute rule and prejudice must be shown. Yet, some
others have applied via media rules. We do not think it necessary in this case
to go deeper into these issues. In the ultimate analysis, it may depend on the
facts of a particular case.
In Karnataka State Road Transport Corporation and Another v. S.G.
Kotturappa and Another [(2005) 3 SCC 409], this Court held :
"The question as to what extent, principles of natural justice are
required to be complied with would depend upon the fact situation obtaining in
each case. The principles of natural justice cannot be applied in vacuum.
They cannot be put in any straitjacket formula. The principles of natural
justice are furthermore not required to be complied with when it will lead to
an empty formality. What is needed for the employer in a case of this nature is
to apply the objective criteria for arriving at the subjective satisfaction. If
the criteria required for arriving at an objective satisfaction stands
fulfilled, the principles of natural justice may not have to be complied with,
in view of the fact that the same stood complied with before imposing
punishments upon the respondents on each occasion and, thus, the respondents,
therefore, could not have improved their stand even if a further opportunity
In Punjab National Bank and Others v. Manjeet Singh and Another [(2006) 8
SCC 647], this Court opined :
"The principles of natural justice were also not required to be
complied with as the same would have been an empty formality. The court will
not insist on compliance with the principles of natural justice in view of the
binding nature of the award. Their application would be limited to a situation
where the factual position or legal implication arising thereunder is disputed
and not where it is not in dispute or cannot be disputed. If only one
conclusion is possible, a writ would not issue only because there was a
violation of the principle of natural justice."
In P.D. Agrawal v. State Bank of India and Others [(2006) 8 SCC 776], this
Court observed :
"The Principles of natural justice cannot be put in a straight jacket
formula. It must be seen in circumstantial flexibility. It has separate facets.
It has in recent time also undergone a sea change."
It was further observed :
"Decision of this Court in S.L. Kapoor vs.
Jagmohan & Ors. [(1980) 4 SCC 379], whereupon Mr.
Rao placed strong reliance to contend that non- observance of principle of
natural justice itself causes prejudice or the same should not be read "as
it causes difficulty of prejudice", cannot be said to be applicable in the
instant case. The principles of natural justice, as noticed hereinbefore, has
undergone a sea change. In view of the decision of this Court in State Bank of
Patiala & Ors. vs. S.K. Sharma [(1996) 3 SCC 364] and Rajendra Singh vs.
State of M.P. [(1996) 5 SCC 460], the principle of law is that some real
prejudice must have been caused to the complainant. The Court has shifted from
its earlier concept that even a small violation shall result in the order being
rendered a nullity. To the principal doctrine of audi alterem partem, a clear
distinction has been laid down between the cases where there was no hearing at
all and the cases where there was mere technical infringement of the principal.
The Court applies the principles of natural justice having regard to the fact
situation obtaining in each case. It is not applied in a vacuum without
reference to the relevant facts and circumstances of the case. It is no unruly
horse. It cannot be put in a straightjacket formula. [See Viveka Nand Sethi vs.
Chairman, J. & K. Bank Ltd. & Ots.
(2005) 5 SCC 337 and State of U.P. vs. Neeraj Awasthi & Ors. JT 2006 (1)
SC 19. See also Mohd. Sartaj vs.
State of U.P. (2006) 1 SCALE 265.]"
The principles of equity in a case of this nature, in our opinion, will have
no role to play. Sympathy, as is well-known, should not be misplaced.
In Maruti Udyog Ltd. v. Ram Lal & Others. [(2005) 2 SCC 638], a Division
Bench of this Court, wherein one of us was a member, noticing some decisions,
"While construing a statute, sympathy has no role to play. This
Court cannot interpret the provisions of the said Act ignoring the binding
decisions of the Constitution Bench of this Court only by way of sympathy to
the workmen concerned.
In A. Umarani v. Registrar, Coop. Societies this Court rejected a
similar contention upon noticing the following judgments: (SCC pp. 131-32,
In a case of this nature this Court
should not even exercise its jurisdiction under Article 142 of the Constitution
of India on misplaced sympathy.
In Teri Oat Estates (P) Ltd. v. U.T., Chandigarh it is stated: (SCC p.
144, paras 36-37)
We have no doubt in our mind that
sympathy or sentiment by itself cannot be a ground for passing an order in
relation whereto the appellants miserably fail to establish a legal right. It is
further trite that despite an extraordinary constitutional jurisdiction
contained in Article 142 of the Constitution of India, this Court ordinarily
would not pass an order which would be in contravention of a statutory
As early as in 1911, Farewell, L.J. in Latham v.
Richard Johnson & Nephew Ltd. observed: (All ER p. 123 E) We must be
very careful not to allow our sympathy with the infant plaintiff to affect our
judgment. Sentiment is a dangerous will o the wisp to take as a guide in the
search for legal principles.
Yet again, recently in Ramakrishna Kamat v. State of Karnataka this
Court rejected a similar plea for regularisation of services stating: (SCC pp.
377-78, para 7) We repeatedly asked the learned counsel for the appellants on
what basis or foundation in law the appellants made their claim for
regularisation and under what rules their recruitment was made so as to govern
their service conditions. They were not in a position to answer except saying
that the appellants have been working for quite some time in various schools
started pursuant to resolutions passed by Zila Parishads in view of the
government orders and that their cases need to be considered sympathetically.
It is clear from the order of the learned Single Judge and looking to the very
directions given, a very sympathetic view was taken. We do not find it either
just or proper to show any further sympathy in the given facts and
circumstances of the case. While being sympathetic to the persons who come
before the court the courts cannot at the same time be unsympathetic to the
large number of eligible persons waiting for a long time in a long queue
It is not a case where appointment was irregular. If an appointment is
irregular, the same can be regularized. The court may not take serious note of
an irregularity within the meaning of the provisions of the Act. But if an
appointment is illegal, it is non est in the eye of law, which renders the
appointment to be a nullity.
We have noticed hereinbefore that in making appointment of the appellant,
the provisions of Articles 14 and 16 of the Constitution and statutory rules
were not complied with. The appointment, therefore, was illegal and in that
view of the matter, it would be wholly improper for us to invoke our equity
Mr. Shekhar is also not correct in contending that the University had
supported the case of the appellant. It was categorically stated by the
University in its counter affidavit that the writ petition being devoid of any
merit should be dismissed. In any event, we have ourselves taken into
consideration the merit of the matter and in that view of the matter the stand
of the University either before the Visitor or in the writ proceedings
initiated by Respondent No. 4 is wholly irrelevant.
For the reasons aforementioned, we do not find any merit in this appeal,
which is dismissed. However, in the facts and circumstances of the case, there
shall be no order as to costs.
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