2007 Supreme(SC) 241

2007(3) Supreme 956
SUPREME COURT OF INDIA
(From Allahabad High Court)
S.B. Sinha and Markandey Katju, JJ.
Ashok Kumar Sonkar — Appellant
versus
Union of India & Ors. — Respondents
Civil Appeal No. 4761 of 2006
Decided on 23-2-2007
Counsel for the Parties :
For the Appellants : V. Shekhar, Yatish Mohan and E.C. Vidya Sagar, Advocates.
For the Respondents : G.E. Vahanvati, S.G., Rajeev Dhawan, Sr. Advocate, Devadatt Kamat, Hrishikesh Baruah, Ms. Sushma Suri, Rameshwar Prasad Goyal, L.R. Singh and Chandra Prakash, Advocates.

IMPORTANT POINT
A court of law does not insist on compliance of useless formality. Being ineligible to be considered for appointment, it would be a futile exercise to give such a candidate an opportunity of being heard before cancellation of his appointment.

Headnote:Banaras Hindu University Act, 1915 — Section 5(7) — Recruitment of Lecturer in Tridosa Vigyan — Requisite qualification as on the cut-off date — Power of Visitor of the University — Banaras Hindu University issued an advertisement for filling up a vacant post of lecturer — Appellant applied for the said post on 30-5-1995 — As on that day, he had not completed his M.D. in Sharir Kriya — 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 that requisite qualification till the date of filing of such application — He, however, was selected and offered an appointment — On challenge by respondent 4, the ‘Visitor’ of the said University held that selection process was illegal — Selection proceeding was set aside — Writ petition filed by appellant dismissed by the High Court — Whether it was obligatory on part of Visitor to give an opportunity of hearing to appellant — (No) — Being ineligible to be considered for appointment, it would have been a futile exercise to give appellant an opportunity of being heard.

       Held : 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. (Para 18)

       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. (Para 22)

       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. (Para 24)

       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. (Paras 25)

       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 being heard. (Paras 26)

       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. (Paras 33)

       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 jurisdiction. (Paras 34)