# Atul Kumar Singh v. State of U.P. & Ors

- **Citation:** (2019) 2 ILRA 989
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-18
- **Case number:** Service Bench No. 567 of 2012
- **Bench:** Anil Kumar, Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/atul-kumar-singh-v-state-of-u-p-ors-44836
- **Pages:** 13

## Headnote

C.S.C., Sri Amit Dwivedi, Sri Manik Sinha,
Sri Manish Sinha, Sri Sameer Kalia, Sri
Uttam Kumar Verma

A. Service Jurisprudence - appointment -
petitioner's services stand terminated when
regular selection was to be made on the post
of
Manager,
Printing
Press
-
he
was
alternatively adjusted against the post of
Research Assistant in the Department of Dairy
and Animal Husbandry - appointment under
challenge
-
petitioner
lacks
requisite
qualification for the post of Research Assistant

Held:- The submissions of the petitioner that
due opportunity to defend his case was not
accorded to him is covered under the phrase
"Useless Formality Theory" as the petitioner do
not possess required qualification for the post
of Research Assistant. (Para 19)
The principle of Negative Equality envisaged in
State of Orissa Vs. Mamta Mohanty wherein it
was observed that if similarly situated persons
were granted some benefit inadvertently or by
mistake, that order do not confer any legal
right on the petitioner to get some relief.
However, under such circumstance, the court
is duty bound to rectify the mistake rather
than perpetuate the same. (Para 20).

Writ Petition dismissed (E-10)

Cases Cited:-

## Text

_Characters 0–39,883 of 40,889. This is a partial read: ask again with offset=39883 for what follows._

2 All. Atul Kumar Singh Vs State of U.P. & Ors.
989
consequential benefits and refund of
amount
would
considered
by
the
appointing authority after conclusion/final
outcome of the enquiry proceeding.

24. Further, till the passing of the
final order in the matter in question by the
disciplinary authority, no recovery shall
be made from the claimant/opposite party
no.1 and the amount recovered from the
opposite party no.1, in pursuance to the
order dated 06.02.2015, shall be subject to
outcome of the final order passed by the
disciplinary authority.

25. The disciplinary authority is
directed to conclude the entire proceeding
within six months from the date of receipt
of a certified copy of this order.
----------

(2019)10ILR A 989

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.09.2019

BEFORE

THE HON'BLE ANIL KUMAR, J.
THE HON'BLE SAURABH LAVANIA, J.

Service Bench No. 567 of 2012

Atul Kumar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri R.P. Singh, Sri S.P. Singh.

Counsel for the Respondents:
C.S.C., Sri Amit Dwivedi, Sri Manik Sinha,
Sri Manish Sinha, Sri Sameer Kalia, Sri
Uttam Kumar Verma

A. Service Jurisprudence - appointment -
petitioner's services stand terminated when
regular selection was to be made on the post
of
Manager,
Printing
Press
-
he
was
alternatively adjusted against the post of
Research Assistant in the Department of Dairy
and Animal Husbandry - appointment under
challenge
-
petitioner
lacks
requisite
qualification for the post of Research Assistant

Held:- The submissions of the petitioner that
due opportunity to defend his case was not
accorded to him is covered under the phrase
"Useless Formality Theory" as the petitioner do
not possess required qualification for the post
of Research Assistant. (Para 19)
The principle of Negative Equality envisaged in
State of Orissa Vs. Mamta Mohanty wherein it
was observed that if similarly situated persons
were granted some benefit inadvertently or by
mistake, that order do not confer any legal
right on the petitioner to get some relief.
However, under such circumstance, the court
is duty bound to rectify the mistake rather
than perpetuate the same. (Para 20).

Writ Petition dismissed (E-10)

Cases Cited:-

1. Ajay Singh Vs St of U.P. (2011) SCC OnLine
All 2201

2. St of Orissa Vs Mamta Mohanty (2011) 3 SCC 436

3. Aligarh Muslim University Vs Mansoor Ali
Khan (2000) 7 SCC 529

4. St of Bihar & ors Vs Kameshwar Prasad
Singh & anr AIR (2000) SC 2306

5. U.O.I. & anr Vs International Trading Co. &
anr AIR (2003) SC 3983

6. Lalit Mohan Pandey Vs Pooran Singh & ors
AIR (2004) SC 2303

7. M/s Anand Buttons Ltd. Etc. Vs St of Har &
ors AIR (2005) SC 5565

8. Kastha Niwarak G.S.S. Maryadit, Indor Vs
President, Indore Development Authority AIR
(2006) SC 1142
990 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Gulam Rasool Lone Vs St of J & K JT (2009)
(13) SC 422

(Delivered by Hon'ble Anil Kumar, J.
Hon'ble Saurabh Lavania, J.)

1. Heard learned counsel for the
petitioner, learned State Counsel for the
opposite party No. 1, Sri Sameer Kalia,
learned counsel for the opposite party No.
2 and Sri Uttam Kumar Verma, learned
counsel for the opposite party Nos. 3 and
4.

2. By means of the present writ petition,
the petitioner has challenged the orders dated
02.08.2011 and 17.03.2012, passed by the
opposite party Nos. 2 and 4 (Annexure Nos. 1
and 2 to the writ petition).

3. Facts, in brief, of the present case
are to the effect that initially on
14.12.1987, the petitioner was appointed
on the post of Manager, Printing Press in
the pay-scale of Rs. 500-900. Vide letter
dated 03.01.1991, one post of Manager,
Printing Press was sanctioned and it was
directed that on the said post, regular
selection be made and after making
regular selection, the services of the
petitioner shall be terminated.

4. On 31.07.1997, an order was
passed in the Writ Petition No. 4138 of
1997 filed by the petitioner before this
Court challenging the advertisement for
holding regular selection for the post of
Manager. Relevant portion of the order
dated 31.07.1997 reads as under:-

"In the meantime no result shall
be declared nor shall any appointment be
made in pursuance of the advertisement
dated 4th December, 1992 for which the
meeting is scheduled to be held on
31.01.1997 for the post of manager
printing
press
in
the
University
concerned."

5. In the aforesaid writ petition,
counter affidavit was filed in the year 1998
on behalf of opposite party No. 3 stating
therein that the regular appointment on the
post of Manager, Printing Press has been
made and the petitioner has been adjusted
against the post of Research Assistant in
pay-scale of Rs. 500-900. The writ petition
was dismissed by this Court vide order
06.12.2000.

6. Thereafter, the petitioner was
transferred along with his post of
Research Assistant in the Department of
Dairy and Animal Husbandry and it was
directed that the work shall be taken from
the petitioner. Thereafter, on a complaint
dated 16.08.2010 under Section 23 of the
U.P.
Krishi
Evam
Praudyogik
Vishwavidyalaya Adhiniyam, 1958, with
regard to the appointment/adjustment of
the petitioner on the post of Research
Assistant, the opposite party No. 2 issued
the order dated 02.08.2011, whereby
directed the opposite party No. 3 to take
appropriate decision in the matter of
appointment of the petitioner keeping in
view the report of University and
direction of the State
Government.
Thereafter, vide order dated 15.04.2011,
the opposite party No. 1 refused to
provide the revised pay-scale on the
ground that the appointment of the
petitioner on the post of Research
Assistant is in violation of Government
Orders dated 03.01.1990, 27.02.1991 and
30.08.1990. Thereafter, vide order dated
27.06.2011, a Committee was constituted
by the opposite party No. 3 to inquire into
the matter/appointment of the petitioner
on the post of Research Assistant.
2 All. Atul Kumar Singh Vs State of U.P. & Ors.
991

7. The Committee so constituted
submitted its report dated 31.10.2011.
Considering the report of the Committee
dated 31.10.2011, the petitioner was
asked to submit his reply, which he
submitted on 06.12.2011, and he was
provided
personal
hearing
fixing
07.12.2012, on which date the petitioner
was heard. Thereafter, vide order dated
17.03.2012, the services of the petitioner
were terminated.

8. In view of the aforesaid factual
background, the present writ petition has
been filed before this Court.

9. Learned counsel for the petitioner
submitted that the petitioner has not been
given adequate opportunity to defend his case.

10. Learned counsel for the
petitioner further submitted that the
service of the petitioner has been
terminated, which is a major penalty and
before terminating the petitioner, a fullfledged enquiry should have been done in
the matter. However, no such steps were
taken by the respondents, as such, the
impugned
order
dated
17.03.2012,
terminating the services of the petitioner,
is violative of principles of natural justice
and arbitrary in nature.

11. Learned counsel for the petitioner
further
submitted
that
in
identical
circumstances, four persons, who did not
possess the requisite qualification, have been
retained in service and the petitioner was
terminated from service.

12. The prayer is to allow the writ
petition.

13. Learned counsel for the
respondents
while
opposing
the
submission made by learned counsel for
the petitioner submitted that the petitioner
did not possess the requisite qualification,
which was to be possessed by a person to
be appointed on the post of Research
Assistant i.e. B.Sc Krishi. In view of the
said fact and after conducting the enquiry
wherein, the petitioner was given the
opportunity to defend his case, and
considering his reply, the impugned order
of termination was passed, which is just
and proper in the facts of the case.

14. We have heard the learned
counsel for the parties and gone through
the record carefully.

15. Needless to mention here that
learned counsel for the petitioner has not
disputed the fact that for the post of Research
Assistant, the requisite qualification is B.Sc.
Krishi and the petitioner did not possess the
said qualification. Rather the petitioner
possessed the qualification of M.A. and Ph.D.

16. In view of the aforesaid facts,
the admitted position emerges out to the
effect that the petitioner did not possess
the requisite qualification to be appointed
on the post of Research Assistant in the
Chandrasekhar Azad Agriculture and
Technology University, Kanpur and also
the minimum qualification for the said
post cannot be relaxed, contrary to this,
no Rule has been placed before us.

17. In this regard, this Court in the
case of Ajay Singh v. State of U.P.
reported in 2011 SCC OnLine All 2201 :
(2011) 3 All LJ 38 : (2011) 87 ALR
(SUM 14) 7 : 2011 Lab IC 3113,
observed as under:-

"11. Before going into the
question as to whether the respondents
992 INDIAN LAW REPORTS ALLAHABAD SERIES
were justified in making appointment of
respondent No. 5 by permitting relaxation in
the qualification even if this Court assume that
such relaxation was permissible under 1986
Rules, the fact remains that before acting
thereon, no modification, amendment or
readvertisement of the post in question took
place with modified qualification. This resulted
ex facie denial of opportunity to such other
persons who could have satisfied the relaxed
qualification but failed to apply since the
advertisement which was actually made did not
contain such qualification. This also makes
appointment of respondent No. 5 pursuant to
the relaxed qualification illegal being violative
of Articles 15 and 16 of Constitution of India
having resulted in denial of equal opportunity
of employment to others. Even cases where
there is some change in the qualification etc.
under the Rules etc. after an advertisement is
made, it has consistently been the view of the
Court that in such a case afresh advertisement
or modified advertisement, as a rule, must be
published so as to give opportunity to the
people at large who satisfy the altered,
modified or changed qualification to apply.
This is consistent with the constitutional
requirement of giving equal opportunity of
employment to all.

12. In State of M.R v. Shyama
Pardi, (1996) 7 SCC 118 : (AIR 1996 SC
2219) the Apex Court held that an
appointment made in the absence of
requisite qualification prescribed under
Rules is void ab initio and neither it
confers any right upon the person
concerned to hold the post or continue if
he/she has been appointed though did not
possess requisite qualification nor any
direction for payment of salary can be
issued in such cases.

13. A similar controversy arose
in the case of Mohd. Sartaj v. State of
U.P., JT 2006 (1) SC 331 : (AIR 2006 SC
3492) and the Apex Court held that an
appointment
lacking
requisite
qualification would be a nullity. A
question also raised before the Apex
Court that if subsequently the candidate
has attained the requisite qualification
whether
that
would
validate
the
appointment but it was replied by the
Apex Court that the validity of an
appointment has to be considered at the
time
of
appointment
and
if
the
appointment was made by ignoring the
requisite qualification or if it is found that
the candidate did not possess requisite
qualification at that time of appointment,
the appointment would be void ab initio.

17. Learned Standing Counsel
or Sri R.L. Verma, Advocate appearing on
behalf of respondent No. 5 also could not
place any pro vision to show that the
Rules pertaining to recruitment under
1986 Rules could have been relaxed by
the Director General. Rule 25 of 1986
Rules confers power of relaxation relating
to Rules regulating conditions of service
and reads as under:

"25. Relaxation in the conditions of
service. Where the State Government is
satisfied that the operation of any Rule
regulating the conditions of service of persons
appointed to the service causes undue
hardship in any particular case, it may, not
withstanding anything contained in the Rules
applicable to the case, by order, dispense with
or relax the requirements of that Rule to such
extent and subject to such conditions as it may
consider necessary for dealing with the case
in a just and equitable manner."

18. The distinction between
Rules, pertaining to recruitment and
condition
of
service
came
up
for
2 All. Atul Kumar Singh Vs State of U.P. & Ors.
993
consideration before the Apex Court in
the case of Keshav Chandra Joshi v.
Union of India, 1992 Supp (1) SCC 272 :
(AIR 1991 SC 284) where the Rule
permitted relaxation of conditions of
service and it was held that the Rule did
not permit relaxation of recruitment
Rules. It was reiterated in Syed Khalid
Rizvi v. Union of India, 1993 Supp (3)
SCC 575 wherein it was held:--

"Conditions of recruitment and
conditions of service are distinct and the
latter is precedent by an appointment
according to Rules. Former cannot be
relaxed."

19. In Keshav Chandra Joshi
(supra) the Apex Court also says that Rules
permitting
relaxation
of
provisions
regulating conditions of service cannot be
invoked to suggest relaxation of Rules
regulating recruitment. The Rules relating
to age, qualification, other eligibility
process of selection etc. that is all the steps
anterior to appointment constitute Rules
regulating recruitment. Under 1986 Rules,
firstly the Rules relating to recruitment
cannot be relaxed and secondly even Rule
25 of 1986 Rules which permits relaxation
of Rules regulating conditions of service
authorises
the
State
Government
or
Director General to do so hence such
relaxation
by
Director
General
is
impermissible."

18. We also like to refer the
judgment passed by the Apex Court in the
case of State of Orissa v. Mamata
Mohanty reported in (2011) 3 SCC 436.
The
relevant
paras
are
reproduced
hereunder:-

"Appointment/employment
without advertisement

35. At one time this Court had
been of the view that calling the names
from employment exchange would curb to
certain extent the menace of nepotism and
corruption in public employment. But,
later on, it came to the conclusion that
some appropriate method consistent with
the requirements of Article 16 should be
followed. In other words there must be a
notice published in the appropriate
manner calling for applications and all
those who apply in response thereto
should be considered fairly. Even if the
names of candidates are requisitioned
from employment exchange, in addition
thereto it is mandatory on the part of the
employer to invite applications from all
eligible candidates from the open market
by
advertising
the
vacancies
in
newspapers having wide circulation or by
announcement in radio and television as
merely calling the names from the
employment exchange does not meet the
requirement of the said article of the
Constitution. (Vide Delhi Development
Horticulture Employees' Union v. Delhi
Admn. [(1992) 4 SCC 99 : 1992 SCC
(L&S) 805 : (1992) 21 ATC 386 : AIR
1992 SC 789] , State of Haryana v. Piara
Singh [(1992) 4 SCC 118 : 1992 SCC
(L&S) 825 : (1992) 21 ATC 403 : AIR
1992 SC 2130] , Excise Supdt. v. K.B.N.
Visweshwara Rao [(1996) 6 SCC 216 :
1996 SCC (L&S) 1420] , Arun Tewari v.
Zila Mansavi Shikshak Sangh [(1998) 2
SCC 332 : 1998 SCC (L&S) 541 : AIR
1998 SC 331] , Binod Kumar Gupta v.
Ram Ashray Mahoto [(2005) 4 SCC 209 :
2005 SCC (L&S) 501 : AIR 2005 SC
2103] , National Fertilizers Ltd. v. Somvir
Singh [(2006) 5 SCC 493 : 2006 SCC
(L&S) 1152 : AIR 2006 SC 2319] ,
Telecom District Manager v. Keshab Deb
[(2008) 8 SCC 402 : (2008) 2 SCC (L&S)
709] , State of Bihar v. Upendra Narayan
994 INDIAN LAW REPORTS ALLAHABAD SERIES
Singh [(2009) 5 SCC 65 : (2009) 1 SCC
(L&S) 1019] and State of M.P. v. Mohd.
Abrahim [(2009) 15 SCC 214 : (2010) 1
SCC (L&S) 508].)

36. Therefore, it is a settled
legal proposition that no person can be
appointed even on a temporary or ad hoc
basis without inviting applications from
all eligible candidates. If any appointment
is made by merely inviting names from the
employment exchange or putting a note
on the noticeboard, etc. that will not meet
the requirement of Articles 14 and 16 of
the Constitution. Such a course violates
the mandates of Articles 14 and 16 of the
Constitution of India as it deprives the
candidates who are eligible for the post,
from
being
considered.
A
person
employed in violation of these provisions
is not entitled to any relief including
salary. For a valid and legal appointment
mandatory compliance with the said
constitutional
requirement
is
to
be
fulfilled. The equality clause enshrined in
Article 16 requires that every such
appointment be made by an open
advertisement as to enable all eligible
persons to compete on merit.

Order bad in inception

37.
It
is
a
settled
legal
proposition that if an order is bad in its
inception, it does not get sanctified at a
later
stage.
A
subsequent
action/development cannot validate an
action which was not lawful at its
inception, for the reason that the illegality
strikes at the root of the order. It would be
beyond the competence of any authority to
validate such an order. It would be ironic
to permit a person to rely upon a law, in
violation of which he has obtained the
benefits. If an order at the initial stage is
bad in law, then all further proceedings
consequent thereto will be non est and
have to be necessarily set aside. A right in
law exists only and only when it has a
lawful origin. (Vide Upen Chandra Gogoi
v. State of Assam [(1998) 3 SCC 381 :
1998 SCC (L&S) 872 : AIR 1998 SC
1289] , Mangal Prasad Tamoli v.
Narvadeshwar Mishra [(2005) 3 SCC 422
: AIR 2005 SC 1964] and Ritesh Tewari v.
State of U.P. [(2010) 10 SCC 677 : (2010)
4 SCC (Civ) 315 : AIR 2010 SC 3823] )

38. The concept of adverse possession of
lien on post or holding over are not
applicable
in
service
jurisprudence.
Therefore, continuation of a person
wrongly appointed on post does not
create any right in his favour. [Vide M.S.
Patil
(Dr.)
v.
Gulbarga
University
[(2010) 10 SCC 63 : (2010) 2 SCC (L&S)
785 : AIR 2010 SC 3783] .]

Eligibility lacking

39. In Prit Singh (Dr.) v. S.K.
Mangal [1993 Supp (1) SCC 714 : 1993
SCC (L&S) 246 : (1993) 23 ATC 783] this
Court examined the case of a person who
did not possess the requisite percentage of
marks as per the statutory requirement
and held that he cannot hold the post
observing: (SCC pp. 718-19, paras 12-13)

"12. ... It need not be pointed
out that the sole object of prescribing
qualification that the candidate must have
a consistently good academic record with
first or high second class Master's degree
for appointment to the post of a Principal,
is to select a most suitable person in order
to maintain excellence and standard of
teaching in the institution apart from
administration. ... The appellant had not
secured even second class marks in his
2 All. Atul Kumar Singh Vs State of U.P. & Ors.
995
Master of Arts Examination whereas the
requirement was first or high second class
(55%). The irresistible conclusion is that
on the relevant date the appellant did not
possess the requisite qualifications.

13. ... on the date of the
appointment the appellant did not possess
the requisite qualifications and as such
his appointment had to be quashed."

(emphasis added)

40. In Pramod Kumar v. U.P.
Secondary Education Services Commission
[(2008) 7 SCC 153 : (2008) 2 SCC (L&S) 244
: AIR 2008 SC 1817] this Court examined the
issue as to whether a person lacking eligibility
can be appointed and if so, whether such
irregularity/illegality can be cured/condoned.
After considering the provisions of the U.P.
Secondary Education Services Commission
Rules, 1983 and the U.P. Intermediate
Education Act, 1921, this Court came to a
conclusion that lacking eligibility as per the
rules/advertisement cannot be cured at any
stage and making appointment of such a
person tantamounts to an illegality and not an
irregularity, and thus cannot be cured. A
person lacking the eligibility cannot approach
the court for the reason that he does not have
a right which can be enforced through court.

41. This Court in Pramod
Kumar [(2008) 7 SCC 153 : (2008) 2 SCC
(L&S) 244 : AIR 2008 SC 1817] further
held as under: (SCC p. 160, para 18)

"18. If the essential educational
qualification for recruitment to a post is
not satisfied, ordinarily the same cannot
be condoned. Such an act cannot be
ratified.
An
appointment
which
is
contrary to the statute/statutory rules
would be void in law. An illegality cannot
be regularised, particularly, when the
statute in no unmistakable term says so.
Only an irregularity can be. [See State of
Karnataka v. Umadevi (3) [(2006) 4 SCC
1 : 2006 SCC (L&S) 753] , National
Fertilizers Ltd. v. Somvir Singh [(2006) 5
SCC 493 : 2006 SCC (L&S) 1152 : AIR
2006 SC 2319] and Post Master General
v. Tutu Das (Dutta) [(2007) 5 SCC 317 :
(2007) 2 SCC (L&S) 179] .]"

Relaxation

42. In J.P. Kulshrestha (Dr.) v.
Allahabad University [(1980) 3 SCC 418
: 1980 SCC (L&S) 436 : AIR 1980 SC
2141] issue of relaxation of eligibility
came up for consideration before this
Court wherein it was held as under: (SCC
pp. 425-26, paras 15-16)

"15. ... We regretfully but
respectfully disagree with the Division
Bench and uphold the sense of high
second class attributed by the learned
Single Judge. The midline takes us to 54%
and although it is unpalatable to be
mechanical and mathematical, we have to
hold that those who have not secured
above 54% marks cannot claim to have
obtained a high second class and are
ineligible.

16. ... We have earlier held that
the power to relax, as the Ordinance now
runs, insofar as high second class is
concerned, does not exist. Inevitably, the
appointment of the 3 respondents violate
the Ordinance and are, therefore, illegal."

(emphasis added)

43. In Rekha Chaturvedi v.
University of Rajasthan [1993 Supp (3)
SCC 168 : 1993 SCC (L&S) 951 : (1993)
996 INDIAN LAW REPORTS ALLAHABAD SERIES
25 ATC 234] this Court again dealt with
the power of relaxation of minimum
qualifications as the statutory provisions
applicable
therein
provided
for
relaxation, but to what extent and under
what circumstances, such power could be
exercised was not provided therein. Thus,
this Court issued the following directions:
(SCC p. 176, para 11)

"A. The University must note
that the qualifications it advertises for the
posts should not be at variance with those
prescribed by its Ordinance/Statutes.

B. The candidates selected must be
qualified as on the last date for making
applications for the posts in question or on
the date to be specifically mentioned in the
advertisement/notification for the purpose. ...

C. When the University or its
Selection Committee relaxes the minimum
required qualifications, unless it is
specifically
stated
in
the
advertisement/notification both that the
qualifications will be relaxed and also the
conditions on which they will be relaxed,
the relaxation will be illegal.

D.
The
University/Selection
Committee
must
mention
in
its
proceedings of selection the reasons for
making relaxations, if any, in respect of
each of the candidates in whose favour
relaxation is made.

E. The minutes of the meetings
of the Selection Committee should be
preserved for a sufficiently long time, and
if the selection process is challenged until
the challenge is finally disposed of. An
adverse inference is liable to be drawn if
the minutes are destroyed or a plea is
taken that they are not available."
(emphasis added)

44. In P.K. Ramachandra Iyer v.
Union of India [(1984) 2 SCC 141 : 1984
SCC (L&S) 214 : AIR 1984 SC 541] this
Court while dealing with the same issue,
held that once it is established that there
is no power to relax the essential
qualifications, the entire process of
selection of the candidate was in
contravention of the established norms
prescribed by advertisement. The power
to relax must be clearly spelt out and
cannot otherwise be exercised.

45. In A.P. Public Service
Commission v. B. Swapna [(2005) 4 SCC
154 : 2005 SCC (L&S) 452] this Court
held that: (SCC p. 160, para 15)

"15. Another aspect which this
Court has highlighted is scope for
relaxation of norms. ... Once it is most
satisfactorily
established
that
the
Selection Committee did not have the
power to relax essential qualification, the
entire process of selection so far as the
selected candidate is concerned gets
vitiated."

(emphasis supplied)

46. This Court in Kendriya
Vidyalaya Sangathan v. Sajal Kumar Roy
[(2006) 8 SCC 671 : (2007) 1 SCC (L&S)
23] held: (SCC p. 675, para 11)

"11.
...
The
appointing
authorities are required to apply their
mind while exercising their discretionary
jurisdiction to relax the age-limits. ... 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
2 All. Atul Kumar Singh Vs State of U.P. & Ors.
997
jurisdiction
could
be
exercised
for
relaxation of age provided for in the rules
and within the four corners thereof."

(emphasis added)

47. In Food Corpn. of India v.
Bhanu Lodh [(2005) 3 SCC 618 : 2005
SCC (L&S) 433 : AIR 2005 SC 2775] this
Court held: (SCC p. 628, para 12)

"12. ... Even assuming that there
is a power of relaxation under the
Regulations, ... the power of relaxation
cannot be exercised in such a manner that
it completely distorts the Regulations. The
power of relaxation is intended to be used
in marginal cases.... 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." \

48. In Bhanu Prasad Panda
(Dr.) v. Sambalpur University [(2001) 8
SCC 532 : 2002 SCC (L&S) 14] one of
the questions raised has been as to
whether a person not possessing the
required eligibility of qualification i.e.
55% marks in Master's degree can be
appointed in view of the fact that UGC
refused to grant relaxation. On the issue
of relaxation of eligibility, the Court held
as under: (SCC p. 536, para 5)

"5. ... the essential requirement
of academic qualification of a particular
standard and grade viz. 55%, in the
''relevant subject' for which the post is
advertised, cannot be rendered redundant
or violated.... ... The rejection by UGC of
the request of the Department in this case
to relax the condition relating to 55%
marks at postgraduation level ... is to be
the last word on the claim of the appellant
and there could be no further controversy
raised in this regard."

 (emphasis added)

49. In view of the above, this
Court held that the appointment of the
appellant
therein
has
rightly
been
quashed as he did not possess the
requisite eligibility of 55% marks in
Master's course.

50. In the absence of an enabling
provision for grant of relaxation, no
relaxation can be made. Even if such a
power is provided under the statute, it cannot
be exercised arbitrarily. (See Union of India
v. Dharam Pal [(2009) 4 SCC 170 : (2009) 1
SCC (L&S) 790] .) Such a power cannot be
exercised treating it to be an implied,
incidental or necessary power for execution
of the statutory provisions. Even an implied
power is to be exercised with care and
caution with reasonable means to remove the
obstructions or overcome the resistance in
enforcing
the
statutory
provisions
or
executing its command. Incidental and
ancillary powers cannot be used in utter
disregard of the object of the statute. Such
power can be exercised only to make such
legislation effective so that the ultimate
power will not become illusory, which
otherwise would be contrary to the intent of
the legislature. (Vide Matajog Dobey v. H.S.
Bhari [AIR 1956 SC 44 : 1956 Cri LJ 140]
and State of Karnataka v. Vishwabharathi
House Building Coop. Society [(2003) 2
SCC 412] .)

51. More so, relaxation in this
manner is tantamount to changing the
998 INDIAN LAW REPORTS ALLAHABAD SERIES
selection criteria after initiation of
selection
process,
which
is
not
permissible at all. Rules of the game
cannot be changed after the game is over.
(Vide K. Manjusree v. State of A.P.
[(2008) 3 SCC 512 : (2008) 1 SCC (L&S)
841 : AIR 2008 SC 1470] and Ramesh
Kumar v. High Court of Delhi [(2010) 3
SCC 104 : (2010) 1 SCC (L&S) 756 : AIR
2010 SC 3714] .)"

19. So far as the argument raised by
the learned counsel for the petitioner to
the effect that the petitioner was not given
the proper opportunity to defend his case
nor proper enquiry was done in the matter
in question is concerned, the same has got
no force because in the present case, as
per the pleadings on record as well as the
arguments advanced by the learned
counsel for the parties, the position
emerges out is to the effect that the
petitioner did not possess the requite
qualification to be appointed on the post
of Research Assistant i.e. B.Sc. Krishi, as
such, giving opportunity of hearing was a
mere formality. The present case, in facts
of the case, is covered under the phrase
"useless formality theory".

20. With regard to phrase "useless
formality theory", the Apex Court in the
case judgment passed in the case of
Aligarh Muslim University v. Mansoor
Ali Khan reported in (2000) 7 SCC 529,
observed as under:-

"Point 5

20. This is the crucial point in
this case. As already stated under Point 4,
in the case of Mr Mansoor Ali Khan,
notice calling for an explanation had not
been issued under Rule 5(8)(i) of the 1969
Rules. Question is whether interference is
not called for in the special circumstances
of the case.

21. As pointed recently in M.C.
Mehta v. Union of India [(1999) 6 SCC
237] there can be certain situations in
which an order passed in violation of
natural justice need not be set aside under
Article 226 of the Constitution of India.
For example where no prejudice is caused
to the person concerned, interference
under Article 226 is not necessary.
Similarly, if the quashing of the order
which is in breach of natural justice is
likely to result in revival of another order
which is in itself illegal as in Gadde
Venkateswara Rao v. Govt. of A.P. [AIR
1966 SC 828 : (1966) 2 SCR 172] it is not
necessary to quash the order merely
because of violation of principles of
natural justice.

22. In M.C. Mehta [(1999) 6
SCC 237] it was pointed out that at one
time, it was held in Ridge v. Baldwin
[1964 AC 40 : (1963) 2 All ER 66 (HL)]
that breach of principles of natural justice
was in itself treated as prejudice and that
no other "de facto" prejudice needed to be
proved. But, since then the rigour of the
rule has been relaxed not only in England
but also in our country. In S.L. Kapoor v.
Jagmohan
[(1980)
4
SCC
379]
Chinnappa Reddy, J. followed Ridge v.
Baldwin [1964 AC 40 : (1963) 2 All ER
66 (HL)] and set aside the order of
supersession
of
the
New
Delhi
Metropolitan Committee rejecting the
argument that there was no prejudice
though notice was not given. The
proceedings were quashed on the ground
of violation of principles of natural
justice. But even in that case certain
exceptions were laid down to which we
shall presently refer.
2 All. Atul Kumar Singh Vs State of U.P. & Ors.
999

23. Chinnappa Reddy, J. in S.L.
Kapoor case [(1980) 4 SCC 379] laid
down two exceptions (at SCC p. 395)
namely, if upon admitted or indisputable
facts only one conclusion was possible,
then in such a case, the principle that
breach of natural justice was in itself
prejudice, would not apply. In other
words if no other conclusion was possible
on admitted or indisputable facts, it is not
necessary to quash the order which was
passed in violation of natural justice. Of
course, this being an exception, great
care must be taken in applying this
exception.

24. The principle that in addition
to breach of natural justice, prejudice must
also be proved has been developed in several
cases. In K.L. Tripathi v. State Bank of India
[(1984) 1 SCC 43 : 1984 SCC (L&S) 62]
Sabyasachi Mukharji, J. (as he then was)
also laid down the principle that not mere
violation of natural justice but de facto
prejudice (other than non-issue of notice)
had to be proved. It was observed, quoting
Wade's Administrative Law (5th Edn., pp.
472-75), as follows: (SCC p. 58, para 31)

"[I]t is not possible to lay down
rigid rules as to when the principles of
natural justice are to apply, nor as to their
scope and extent. ... There must also have
been
some
real
prejudice
to
the
complainant; there is no such thing as a
merely technical infringement of natural
justice. The requirements of natural
justice must depend on the facts and
circumstances of the case, the nature of
the inquiry, the rules under which the
tribunal is acting, the subject-matter to be
dealt with, and so forth."

Since then, this Court has
consistently applied the principle of
prejudice in several cases. The above
ruling and various other rulings taking the
same
view
have
been
exhaustively
referred to in State Bank of Patiala v. S.K.
Sharma [(1996) 3 SCC 364 : 1996 SCC
(L&S) 717] . In that case, the principle of
"prejudice" has been further elaborated.
The same principle has been reiterated
again in Rajendra Singh v. State of M.P.
[(1996) 5 SCC 460]

25. 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
[(1999) 6 SCC 237] 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.

26. It will be sufficient, for the
purpose of the case of Mr Mansoor Ali
Khan to show that his case will fall within
the exceptions stated by Chinnappa
1000 INDIAN LAW REPORTS ALLAHABAD SERIES
Reddy, J. in S.L. Kapoor v. Jagmohan
[(1980) 4 SCC 379] , namely, that on the
admitted or indisputable facts, only one
view is possible. In that event no
prejudice can be said to have been caused
to Mr Mansoor Ali Khan though notice
has not been issued."

21. It is well settled that if a wrong has
been committed by the respondents in respect
to some other persons, that will not provide a
cause of action to claim parity on the ground
of equal treatment since the equality in law
under Article 14 is applicable for claiming
parity in respect to legal and authorized acts.
Two wrongs will not make one right. (See:
State of Bihar and others Vs. Kameshwar
Prasad Singh and another, AIR 2000 SC
2306; Union of India and another Vs.
International Trading Co. and another, AIR
2003 SC 3983; Lalit Mohan Pandey Vs.
Pooran Singh and others, AIR 2004 SC
2303; M/s Anand Buttons Ltd. etc. Vs. State
of Haryana and others, AIR 2005 SC 5565;
and Kastha Niwarak G.S.S. Maryadit, Indor
Vs.
President,
Indore
Development
Authority, AIR 2006 SC 1142).

22. Hon'ble the Apex Court in the
case of Gulam Rasool Lone v. State of
Jammu & Kashmir reported in JT 2009
(13) SC 422 in para 11 and 12 held as
under:-

"11. There cannot be any doubt
whatsoever that keeping in view the equal
protection clause contained in Articles 14
of the Constitution of India as also Article
16 thereof, all the employees should be
treated equally. Equality clause however,
must be enforced in legality and not
illegality.

12. There cannot furthermore be
any doubt that Article 14 is a positive
concept. The Constitution does not
envisage enforcement of the equality
clause where a person has got an undue
benefit by reason of an illegal act."

23. In the case of State of Orissa v.
Mamata Mohanty reported in (2011) 3
SCC 436, the Apex Court observed as
under:-

"Article 14

56.
It
is
a
settled
legal
proposition that Article 14 is not meant to
perpetuate illegality and it does not
envisage negative equality. Thus, even if
some other similarly situated persons
have
been
granted
some
benefit
inadvertently or by mistake, such order
does not confer any legal right on the
petitioner to get the same relief. (Vide
Chandigarh Admn. v. Jagjit Singh [(1995)
1 SCC 745 : AIR 1995 SC 705] , Yogesh
Kumar v. Govt. of NCT of Delhi [(2003) 3
SCC 548 : 2003 SCC (L&S) 346 : AIR
2003 SC 1241] , Anand Buttons Ltd. v.
State of Haryana [(2005) 9 SCC 164 :
AIR 2005 SC 565] , K.K. Bhalla v. State
of M.P. [(2006) 3 SCC 581 : AIR 2006 SC
898] , Krishan Bhatt v. State of J&K
[(2008) 9 SCC 24 : (2008) 2 SCC (L&S)
783] , Upendra Narayan Singh [(2009) 5
SCC 65 : (2009) 1 SCC (L&S) 1019] and
Union of India v. Kartick Chandra
Mondal [(2010) 2 SCC 422 : (2010) 1
SCC (L&S) 385 : AIR 2010 SC 3455].)

57. This principle also applies
to judicial pronouncements. Once the
court comes to the conclusion that a
wrong order has been passed, it becomes
the solemn duty of the court to rectify the
mistake rather than perpetuate the same.
While dealing with a similar issue, this
Court in Hotel Balaji v. State of A.P.
2 All. Union of India & Ors. Vs Sati Nath Khan & Anr.
1001
[1993 Supp (4) SCC 536 : AIR 1993 SC
1048] observed as under: (SCC p. 551,
para 12)

"12. ... ''2. ... To perpetuate an
error is no heroism. To rectify it is the
compulsion of judicial conscience. In this,
we derive comfort and strength from the
wise and inspiring words of Justice
Bronson in Pierce v. Delameter [1 NY 3
(1847) : A.M.Y. p. 18] at p. 18:

"a Judge ought to be wise
enough to know that he is fallible and,
therefore, ever ready to learn: great and
honest enough to discard all mere pride
of opinion and follow truth wherever it
may lead: and courageous enough to
acknowledge his errors".' [ As observed
in Distributors (Baroda) (P) Ltd. v. Union
of India, (1986) 1 SCC 43, p. 46, para 2.]
"

(See
also
Ministry
of
Information & Broadcasting, In re
[(1995) 3 SCC 619] , Nirmal Jeet Kaur v.
State of M.P. [(2004) 7 SCC 558 : 2004
SCC
(Cri)
1989]
and
Mayuram
Subramanian Srinivasan v. CBI [(2006) 5
SCC 752 : (2006) 3 SCC (Cri) 83 : AIR
2006 SC 2449].)"

24. Keeping in view the admitted
fact that the petitioner is not qualified for
the post of Research Assistant, as he does
not
possess
the
degree
of
B.Sc.
Agriculture, and settled legal proposition
regarding
relaxation
of
eligibility/qualification prescribed for a
particular post to the effect that the same
can not be relaxed and appointment of a
person
who
does
not
possess
the
qualification of the post would be void as
well as the principles related to "Useless
Formality Theory" and principle of
"Negative Equality", which are applicable
in the facts of the present case, we are not
inclined to interfere in the impugned
orders dated 02.08.2011 and 17.03.2012
passed by respondent Nos. 2 and 3
respectively.

25.