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Judgment
S.N. Prasad, J.—1. In all these three writ petitions since common issue is involved hence these three writ petitions are disposed of by this common order.
These writ petitions have been filed against the order dtd. 29.10.2011 passed by the Joint Director of Schools, Regional Directorate of Education, Bhubaneswar.
This writ petition has been filed by the Managing Committee having been represented through its Secretary-cum-Headmaster in charge of Bhagabati Bidyapitha, Biridhi, Khandapara, Nayagarh.
The brief facts of this case is that opposite party No. 1 who is claiming to be engaged as Asst. Teacher of the School. According to the petitioner he has got no requisite qualification to be appointed as Asst. Teacher since he is simple Graduate (B.Sc.) without B.Ed. Even the school has appointed the trained teachers, the opposite party No. 1 has been restrained from discharging his duty which according to the petitioner has led him to create some forged documents, i.e. the appointment order and joining report and on the basis of that he has made representation before the Inspector of Schools, Khurda with prayer to allow him to continue in the School and when the representation was not disposed of he has filed writ petition being W.P.(C) No. 4743 of 2003 which was disposed of directing the Inspector of Schools to dispose of the representation and in pursuance to the same he has passed an order giving therein the finding that he was never been appointed in the School and the appointment letter was a created document.
The opposite party No. 1 being aggrieved with the order of Inspector of Schools has filed another writ petition being W.P.(C) No. 11614 of 2009 which was disposed of vide order dtd. 26.11.2009 and this court while declining to interfere with the issues on the pretext of disputed question of fact which cannot be effectually adjudicated under writ jurisdiction as such the competent authority was directed to take decision within a stipulated period and accordingly the Joint Director being the competent authority has adjudicated the issue and passed order on 29.10.2011.
According to the petitioner the Joint Director has came to a finding that the appointment of opposite party No. 1 is without any requisite qualification as per the provision of Orissa Education Rule 17.12.1993. But even in spite of this specific finding he was allowed to work with a direction to the competent authority of the Managing Committee to take action after following the principle of natural justice.
The case of the petitioner is that when the Joint Director has given a specific finding regarding having no requisite qualification with the opposite party No. 1 for being selected and engaged, there is no requirement to follow the principle of natural justice.
While on the other hand the case of opposite party No. 1 that it is incorrect finding given by the Joint Director regarding having no requisite qualification as because no qualification was prescribed under any of the statute at the time when he was appointed. In order to substantiate his argument learned counsel for the petitioner has placed reliance upon (i) the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 (herein after referred to as The Rules, 1974''), (ii) the Orissa Education (Establishment, Recognition and Management of Private high Schools) Rules, 1991 (herein after referred to as The Rules, 1991), (iii) the Orissa Subordinate Education (Method of Recruitment and conditions of Service) Rules, 1993 (herein after referred to as The Rules, 1993'') and (iv) the Orissa Education Act, 1969 (herein after referred to as ''The Act, 1969''). All the rules issued by the State Government fixing qualification does not pertains to the teaching employee of the private schools since according to the learned counsel the rules which were in vogue at the relevant time was the Rule, 1974, Rules, 1991, Rules 1993 and Act, 1969. According to the learned counsel for the petitioner these rules are not meant for the teaching employees of the private schools and since the Joint Director has given reference in the order impugned regarding the Rule 17.12.1993 which is also not applicable with respect to the petitioner.
According to the petitioner, Rule 1974 or Rule 1993 or Act 1969 are meant for aided Government Schools. He further submits that the only rule which is applicable to the petitioner as on the date of appointment of the petitioner is Rule 1991 which is meant for governing the private educational institution and in the said rule there is provision of Rule 30 (k) which provides regarding conditions of appointment of teaching and non-teaching staff which must be in accordance with the provision as contained in the Act, Rules and instructions of the department.
He further submits that in view of provision as contained in Rule 30 (k) The Act 1969 can be said to be applicable wherein there is a provision as contained in Sec.7B which provides reference of qualification making it mandatory to every private educational institution to appoint qualified teachers and non-teaching staff by making selection in accordance with the procedure and criteria prescribed by the State Government.
He further submits that save and except this no provision has been made by the Government regarding having requisite qualification and as such it cannot be said that opposite party No. 1 was not having with requisite qualification.
He further submits that there is no rule prescribing any requisite qualification, hence the ratio laid down by this court in the case of Arabinda Panda Vrs. State of Orissa and Others, , 2001 (I) OLR - 233 will squarely be applicable in the facts and circumstances of this case on account of which the service of O.P.1 will ifso facto be absorbed when the school has been taken over by the Government.
While on the other hand learned counsel for the petitioner vehemently opposed the prayer made on behalf of learned counsel for O.P.1 and has submitted that in view of the provision as contained in Sec.7 of the Act, 1969 which has got bearing regarding the requisite qualification to be possessed for being appointed as teacher in the private school has been provided under Rule 30 (k) of the Rule, 1991 and the Government has come out with two circulars as contained in letter No. 28465 EYS dtd. 8.7.1981 and letter No. 53541-E dtd. 18.12.1990 and by referring these two circulars it has been submitted by the arguing counsel for the petitioner that the provision of Sec.7B(2) speaks regarding the condition for appointment of teaching and non-teaching staff in a private educational institution by making selection in accordance with the procedure and criteria prescribed by the Government and the Government has come out with these two circulars, hence the conditions mentioned therein will be applicable and these circulars provides regarding the reference of trained teachers which suggests that there is no room for untrained teachers in the private educational institutions and as such opposite party No. 1 who has been selected and engaged in the year 1996 having no B.Ed. qualification cannot be said to have possessed requisite qualification, hence rightly been held having no requisite qualification by the Joint Director. He relied upon the judgment rendered by this court in case of Bibekananda Das vrs. State of Orissa and Others, , 1997 (II) OLR -122 and State of Orissa and Others Vrs. Sakuntala Biswal, , 2008 (Supp.-II) OLR - 653.
Heard the learned counsels for the parties and perused the documents on record.
From the rival submissions of the parties two issues needs to be answered in this case, i.e.:--
"(i) Whether the appointment of O.P. No. 1 is illegal in absence of requisite qualification; and
(ii) Whether the principle of natural justice is to be followed."
ISSUE NO.I:--
Before coming to the facts of the case it is necessary to give a finding regarding applicability of the Act with respect to opposite party No. 1 who was engaged in a school which was a private educational institution at the time of his engagement.
The Orissa Subordinate Education (Method of Recruitment and Conditions of Service) Rules, 1993 this mean to refer the purpose for engagement of these Act and the same is being reproduced herein below:--
"S.R.O. No. 1175/93 - In exercise of the powers conferred by the provisio to Article 309 of the Constitution of India, the Governor of Orissa is pleased to make the following rules regulating the method of recruitment and conditions of service of the persons appointed to the post of teachers and equivalent posts in Class-III of the State Civil Service in the offices subordinate to the Director, Secondary Education (Orissa), namely:
Short title and commencement - (1) These rules may be called the Orissa ..........
Definitions - (1) In these rules unless the context otherwise requires;
(a) "Approved Military Service" means ...........................
(g) "Service" means the Orissa Subordinate Education Service; .........................
Cadre of Posts in Subordinate Offices- (1) The service shall comprise of two grades, namely: junior grade and senior grade.
(2) The junior grade of the service shall consist of following categories of posts, namely,
(a) Headmasters/Headmistress of Govt. Upper Primary School,
(b) Assistant Teacher of high Schools,
(c)................"
From perusal of the definition of Rules provided under Rule 2(g) which means being reproduced herein above. The cadre of post in subordinate offices have been defined under Rule 3. Thus it is evident that the Rule, 1993 will be applicable to the post of teacher and qualification possessed by Class-III of the State Civil Services in the office subordinate to the Director, Secondary Education Orissa.
It needs to refer here that there is no dispute about the fact that when opposite party No. 1 was engaged in the school-in-question it was totally private institution. In view thereof Rule 1993 will have no application.
The Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974. From perusal of the title of Rule 1974 which is being reproduced herein below:
"1. Short title and commencement - (1) These rules may be called the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974.
(2) They shall come into force on such date as the Government may, by order, appoint in that behalf:
Provided that they shall be within the competence of the Government to appoint different dates in respect of different categories of Aided Educational Institutions.
(3) These rules shall not apply to Primary Schools and Schools established and maintained by Municipalities and N.A. Cs.
Notes-These rules came into force on 1.4.1975 - Orissa Gazette Extraordinary No. 480 of 1975."
From its perusal it is apparent that these rules have been made applicable to the teachers and members of staff of Aided Educational Institutions.
Admittedly the school in question was not aided at the time when opposite party No. 1 was engaged, hence Rule, 1974 will also not be applicable.
The Orissa Education (Establishment, Recognition and Management of Private High Schools) Rules, 1991. From perusal of its title which is being reproduced herein below:
"1. Short title and commencement - (1) These Rules may be called the Orissa Education (Establishment, Recognition and Management of Private High Schools) Rules, 1991.
(2) They shall come into force on the date of their publication in the Official Gazette."
From its perusal it is evident that these rules have been formulated for establishment, recognition and management of private high schools and the private high schools have been defined U/s.2(h) which is being reproduced herein below:
"2(h) "Private high School" means any "High School" which is not established and managed by the Government of Orissa, the Union Government or Government of any other State and includes a Private High School recognized by the State Government, either aided or unaided;"
Thus as per the definition of private high schools it is evident that the school which is not established and managed by the Government of Orissa, the Union Government or Government of any other State and includes a private school recognized by the State Government either aided or unaided.
The Orissa Education Act, 1969. This Act has been formulated by the State Government with the object and reasons to fulfill the responsibility for management of educational institutions, conduct of educational programs and direction of educational activities, hence it was considered essential to enact Education Act in which the Government will assume the authority for taking suitable steps to prevent the powers and management of the non-government institutions tyranny. Hence the Orissa Education Act, 1969 has been formulated for regulating the educational institutions in all respect within the territory of the State regarding recognition, application, etc.
Rule, 1991 since has been meant for establishment, recognition, management of private schools, hence the provision of Rule 1991 is necessary to be referred for the issue involved in this case and the only provision as contained in Rule 30 wherein in Sub-Rule (k) which is being reproduced herein below:--
"30(k). Appointment of teaching and non-teaching staff in accordance with the provisions contained in the Act, these Rules and instructions of the Department."
Thus it is evident that the appointment of teaching and non-teaching staff in accordance with the provision as contained in the Act, these rules and instructions of the Department.
Thus the appointment of teaching and non-teaching staff is to be made in pursuance to the provision as contained in the Act and the Rules and Instructions of the Department and since it has been stated herein above that Rule, 1974 or Rule 1993 being not applicable, hence the qualification prescribed therein will not be important for appointment of the teaching staffs in a private institution like the school in question in this case.
It is not necessary to analyse the provision of the Act, i.e. Orissa Education Act, 1969 wherein provision has been given U/s.7B which provides that the appointment of qualified teachers which is being reproduced herein below:--
"7-B. Appointment of qualified teachers - (1) The State Government or any officer or authority authorized by it may prescribe the qualifications to be possessed by persons for appointment as teachers including the norms relating to the requirement of such teachers in different categories of private educational institutions.
(2) Every private Educational Institution shall appoint qualified teachers and non-teaching staff by making selection in accordance with the procedure and criteria prescribed by the State Government."
Section 7B(2) provides that every private educational institution shall appoint qualified teachers and non-teaching staff by making selection in accordance with the procedure and criteria prescribed by the State Government. Hence there is no dispute about the fact that the teaching or non-teaching staff is to be selected in accordance with the procedure and criteria prescribed by the Government.
Learned counsel for the petitioner has referred two circulars, i.e. letter No. 28465 EYS dtd. 8.7.1981 and another contained in letter No. 53541-E dtd. 18.12.1990. While going through those circulars the subject matter of the same is "fixation of the standard staff for the Secondary Schools."
Thus from the caption subject it is evident that regarding fixation of the standard staff which relates to the decision of the Government regarding the standard staff both teaching and non-teaching for different categories of Secondary School and thereby the category of the staffs have been given which is reproduced for ready reference:--
"I am directed to say that the question of fixation of standard staff for the Secondary Schools has been felt necessary by the Government due to introduction of the revised syllabus under 10 years schools pattern. In consultation with the Board of Secondary Education and after careful consideration of various aspects, the Government have now been pleased to decide that the standard staff both teaching and non-teaching for different categories of Secondary Schools shall be as follows:
(A) FOR THE SCHOOLS HAVING NO ADDITIONAL SECTIONS:
NOTE(a) Out of 4 Trd. Graduate teachers 2 must be Arts Graduate, 2 others must be Science Graduate,
(b) Out of two Science Graduates one would be having Mathematics and the other having life science as a subject in degree stage."
The relevant would be the another circular as has been referred by the learned counsel for the petitioner, i.e. letter No. 28465 EYS dtd. 8.7.1981 which is also with the subjection caption "fixation of standard staffs for the non-Government Secondary Schools" which has been issued by the Government for fixation of the standard staffs both teaching and non-teaching staffs with categorization of staffs which is being reproduced herein below:--
"I am directed to say that the question of fixation of standard staff for the non-Government Secondary Schools has been felt necessary by the Government due to introduction of the revised syllabus under 10 years schools pattern. After careful consideration of various aspects, Government have now been pleased to decide that the standard staff both teaching and non-teaching for different categories of non-Government Secondary Schools shall be as follows:
(A) FOR THE SCHOOLS HAVING NO ADDITIONAL SECTIONS:
NOTE(a) Out of 4 Trd. Graduate teachers 2 must be Arts Graduate, 2 others must be Science Graduate,
(b) Out of two Science Graduates one would be having Mathematics and the other having life science as a subject in degree stage."
Thus from perusal of these two circulars it is evident that the Government has fixed standard of staffs with staffing pattern wherein the post has been referred against the teaching staff is of trained graduate, trained intermediate and trained matriculate, there is no reference of any untrained teacher in the category of staffs mentioned in these two circulars.
Hence according to the provision of Rule 30 (k) of Rule 1991 read with provision of 7B(2) of the Education Act, 1969 it is to be held here that the circulars dtd. 8.7.1981 and 18.12.1990 will be of importance to see regarding the educational qualification of teaching staffs of the private institutions and the same has been formulated by the competent authority in the light of the provision as contained in Sec.7B(2) of the Act, 1969 which has with the specific mandate that every private institutions shall appoint qualified teachers prescribed by the State Government.
In view thereof it is to be held that the requirement of law when opposite party No. 1 was appointed was with the requisite qualification of trained graduate, trained intermediate or trained matriculate. It is either be B.Ed., C.T. or any type of training obtained in this regard and then only it can be said to be fulfillment of the provision of Sec.7B(2) of the Act, 1969.
Now the facts of the case which is not in dispute is that the opposite party No. 1 was appointed on 1.6.1996 with only B.Sc. However, he has obtained B.Ed qualification in the year 2015 and the school has became aided in the year 2008, as such even on 1.6.1996 it was the requirement in pursuance to the mandate as provided U/s.7B(2) of the Act, 1969 read with the circulars dtd. 8.7.1981 and 18.12.1990 that the teacher must be with the requisite qualification of training that was the fixation of standard staffs and according to that fixation the categories of the staff have been standardized as has been referred while making reference to these two circulars.
Admittedly O.P. No. 1 as on the date of appointment was not with trained qualification rather he was simple graduate with Science hence according to these two circulars he cannot be said to be eligible for appointment.
The contention of learned counsel for opposite party No. 1 that the judgment rendered by this court in the case of Arabinda Panda will squarely be applicable with respect to the facts and circumstances and when the judgment rendered in the case of Arabinda Panda has been scrutinized it came to light that however the reference of provision of Rule 30 (k) of Rule 1991 has been made but that judgment has been passed without taking into consideration the circulars dtd. 8.7.1981 and 18.12.1990 and in view thereof it has been held by their Lordships that the petitioner ifso facto became an employee of the aided educational institution after the institution became an aided one and continue to hold the post but according to my considered view since there is a specific reference in the mandate of the Act, 1969 as provided U/s.7B(2) of the Act, 1969 that every private educational institution shall appoint qualified teachers in pursuance to the criteria prescribed by the State Government if provided under the rules or the circulars of the Government as per the provision of Rule 30 (k), however, there is no provision of rules prescribing any qualification but it is settled that in absence of any specific rule the executive instruction will govern the field and as such in view of provision of Rule 30(k) where it has been provided regarding appointment of teaching and non-teaching staffs in accordance with instructions of the department and the department has come out with two instructions although not laying down the specific qualification but the fixation of standard staff has been prescribed with the staffing pattern wherein there is only reference of trained teachers either Matric or Graduate or Intermediate but there is no reference of untrained teacher, hence it can well be inferred that the Government while issuing executive instructions with the intention to appoint teaching staff having requisite qualification of training qualification and that is the purpose of formulating the Act, 1969 in order to maintain standard of education.
In view of this the judgment rendered by this court in the case of Arabinda Panda will not be applicable in view of the foregoing reasons.
Moreover, considering the fact that everywhere the standard of education is to be maintained which is the foremost responsibility of the State Government and even the Central Government. Moreover, here in the light of the situation the reference of the National Council for Teacher Education Act, 1993 needs to be referred which was enacted by the Parliament after having been received the assent of his Excellency of the President of India on 29th December, 1993 and the purpose for promulgation of the said Act which is being quoted herein below:
"An Act to provide for the establishment of a National Council for Teacher Education with a view to achieving planned and coordinated development of the teacher education system throughout the country, the regulation and proper maintenance of norms and standards in the teacher education system and for matters connected therewith."
This Act has been made applicable throughout the country save and except the State of Jammu and Kashmir.
From perusal of the definition of the said Act the institutions have been defined U/s.2(e) of the Act, 1973 which means "an institution which offers courses or training in teacher education" and the teacher education has also been defined U/s.2(L) of the Act, 1973 which means "programmes of education, research or training of persons for equipping them to teach at pre-primary, primary, secondary and senior secondary stages in schools, and includes non-formal education, part-time education, adult education and correspondence education". The teacher education qualification has also been defined U/s.2(m) which means "a degree, diploma or certificate in teacher education awarded by a University or examining body in accordance with the provisions of this Act"
Thus it is evident that after enactment of the National Council for Teacher Education Act, 1973 by which the intention was to maintain the standard in education by appointing the qualified teachers so that they be able to impart better education by the students which also suggests that opposite party No. 1 since was not trained hence having no requisite qualification.
In view of the foregoing reasons it is held by holding that the opposite party No. 1 on the date of appointment was not having with requisite qualification as per the applicability during the relevant time.
Accordingly the issue No. (i) is being answered.
ISSUE NO.II:--
Now the question arises that when the O.P. No. 1 has got no requisite qualification which has been held by the Joint Director in his order which is impugned in this writ petition and as such whether there is requirement of following any principle of natural justice.
The other thread of argument of learned counsel for opposite party No. 1 is that in no case service of opposite party No. 1 can be taken away without following the principle of natural justice and as such the Joint Director has passed a very well reasoned order directing the Managing Committee to pass an order after following the principle of natural justice.
In the light of this submission it needs to refer the situation where the principle of natural justice is to be followed for that the background of the principle of natural justice is necessary to be discussed.
Natural justice is an expression of English Common Law. It is developed with this fundamental in mind that those whose duty is to decide, must act judicially. They must deal with the question referred both without bias and they must given to each of the parties to adequately present the case made. The principles of natural justice developed over a period of time and which is still in vogue and valid even today where: (i) rule against bias, (ii) opportunity of being heard to the concerned party, i.e. audi alteram partem. These are known as principles of natural justice. To these principles a third principle is added, which is of recent origin. It is duty to give reason in support of decision, namely, passing of a reasoned order.
There is no dispute about the fact that the principle of natural justice are grounded in procedural fairness which ensures taking of correct decision and procedural fairness is fundamentally and instrumental good, in the sense that procedure should be designed to ensure accurate or appropriate outcomes. In fact, procedural fairness is valuable in both instrumental and non-instrumental terms. It is for this reason that the courts have consistently insisted that such procedural fairness has to be adhered to before a decision is made and infraction thereof has led to the quashing of decisions taken. In this connection the judgment rendered in case of A.K. Kraipak Vrs. Union of India, , (1969) 2 SCC 262 wherein it was held that the rules of natural justice operate in areas not covered by any law. They do not supplant the law of the land but supplement it and their aim is to secure justice or to prevent miscarriage of justice and therefore it has made applicable to the decision to be taken in the administrative proceedings for the purpose of achieving that the enquiry must be held in good faith and without bias and not arbitrarily or unreasonably.
In the case of Chairman, board of Mining Examination Vrs. Ramjee , (1977) 2 SCC 256 the Hon''ble Apex Court has observed that natural justice is not an unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of.
In the case of Institute of Chartered Accounts of India Vrs. L.K. Ratna, , (1986) 4 SCC 537, Charan Lal Sahu Vrs. Union of India, , (1990) 1 SCC 613 and C.B. Gautam Vrs. Union of India , (1993) 1 SCC 78 the doctrine that the principle of natural justice must be applied in the unoccupied interstices of the statute unless there is a clear mandate to the contrary is reiterated.
Thus it is now settled that the proceedings must be just, fair and reasonable and negation thereof offends Articles 14 and 21. It is well settled law that principles of natural justice are integral part of Article.
But there may be situation wherein for some reason perhaps because the evidence against the individual is thought to be utterly compelling, it is felt that a fair hearing would make no difference, meaning that a hearing would not change the ultimate conclusion reached by the decision maker, then no legal duty to supply a hearing arises. Such an approach was endorsed by Lord Wilberforce in Malloch Vrs. Aberdeen Corporation, (1971) 1 WLR 1578 wherein it has been stated that a breach of procedure --- cannot give a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain. Relying on these comments, Brandon LJ opined in Cinnamond Vrs. British Airports Authority, , (1980) 1 WLR 582 that no one can complain of not being given an opportunity to make representations if such an opportunity would have availed him nothing. In such situations, fair procedures appear to serve no purpose since right result can be secured without according such treatment to the individual.
In the case of Managing Director, ECIL, Hyderabad & Ors. Vrs. B. Karunakar & Ors, , (1993) 4 SCC 727 the relevant paragraph i.e. paragraph 30 is being quoted herein below:
"30. Hence the incidental questions raised above may be answered as follows:
Xxxxxxx xxxxxxx xxxxxxx
(v) The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all the sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an ''unnatural expansion of natural justice'' which in itself is antithetical to justice."
Yet another judgment of Hon''ble Supreme Court in case of Aligarh Muslim University Vrs. Mansoor Ali Khan, , (2000) 7 SCC 529 needs to be referred here. In that case Hon''ble Apex Court have held that the relevant rule provided automatic termination of service of an employee on unauthorized absence for certain period. M remained absent for more than five years and, hence, the post was deemed to have been vacated by him. M challenged the order being violative of natural justice as no opportunity of hearing was afforded before taking the action. Though the Court held that the rules of natural justice were violated, it refused to set aside the order on the ground that no prejudice was caused to M. Referring to several cases, considering the theory of "useless" or "empty" formality and noting "admitted or undisputed" facts, the Court held that the only conclusion which could be drawn was that had M been given a notice, it "would not have made any difference" and, hence, no prejudice had been caused to M.
Thus in the light of this principle it is to be seen that even after notice is issued the party aggrieved, i.e. the opposite party No. 1 in this case cannot take plea that he was having requisite qualification on the date of appointment and in such a situation issuance of notice would be an empty formality and as such the case of opposite party No. 1 in this case will be covered by useless formality theory and if the contention of opposite party No. 1 would be accepted it will amounts to completing a mere ritual of hearing without possibility of any change in the decision of the case on merits.
It is admitted case of opposite party No. 1 that he was not having with requisite qualification of B.Ed. rather he obtained B.Ed. qualification only in the year 2015 hence even if the opportunity of being heard is provided there will be no material change in the circumstance hence the finding given by the Joint Director in this respect to follow the principle of natural justice seems to be unjustified and it is unjustified in view of the facts and circumstances of the case and it is settled that not possessing requisite qualification amounts to illegality and not irregularity and if the appointment is illegal that can be cancelled at any point of time. Reference may be made to the judgment rendered by Hon''ble Supreme Court in case of State of Gujarat and Others Vrs. Arvindkumar T. Tiwari and another, , 2012 9 SCC 545.
It is also settled that educational qualification of a candidate is to be seen on the date of engagement and it cannot be relaxed by any of the authority, in this regard reference may be made to the judgment of Hon''ble Apex Court in the case of Rakesh Kumar Sharma Vrs. State (NCT of Delhi) and Others, , 2013 11 SCC 58 para 17 and 20.
It is further settled that eligibility condition cannot be changed or even relaxed. In this regard reference may be made to the judgment of Hon''ble Apex Court in case of State of Orissa and Another Vrs. Mamata Mohanty, , (2011) 3 SCC 436.
Hence in the light of the fact that for becoming a teacher requisite qualification is to be possessed by a candidate and admittedly which is not disputed by opposite party No. 1 rather it is admission on his part that he was simple graduate on 1.6.1996 and he has got B.Ed. qualification only in the year 2015 hence even if the notice would have been issued to the O.P. No. 1 the situation cannot change and the facts will remain same i.e. O.P. No. 1 has to state in his reply that he was having not with requisite qualification on the date of his engagement i.e. on 1.6.1996 and hence issuance of notice or following the principle of natural justice is said to be empty formality.
Hence in the light of this issue No. (ii) is also decided against opposite party No. 1.
Accordingly, the W.P.(C) No. 30689 of 2011 is allowed, W.P.(C) Nos. 656 of 2012 and 22105 of 2014 are dismissed.