Judgment:
Writ Petition No.2976/2014.
26.2.2014.
Shri Ashish Shroti, learned counsel for petitioneRs.Shri Sudesh Verma, learned Government Advocate for the State of M.P.on advance notice.
Heard on admission.
Order-dated 10.2.2014 passed by Secretary, District Health Society, Hoshangabad is being assailed vide this petition under Article 226/227 of the Constitution of India.
By the said order, services of the petitioners as contract Unani Medical Officers have been terminated before expiry of the term.
Relevant facts, in nutshell, are that the applications were invited on-line for appointment on 1252 posts of Medical Officers in Unani/Homeopathy/Ayurvedic Sciences under the National Rural Health Mission Madhya Pradesh on contract basis on a consolidated monthly pay of Rs.25,000/-.
The case at hand relates to Unani Medical Officer, the qualification wherefor, was prescribed as "Bachelor of Unani Medicine and Surgery Degree from Recognized University and Valid registration with Madhya Pradesh Ayurvedic & Unani and Natural Medical Board".
Petitioners having completed their BUMS (Bachelor of Unani Medicine and Surgery) final year examination in May, 2012 but before completion of their internship (which was completed on 20.9.2013) and without there being valid registration with M.P.Ayurvedic & Unani and Natural Medical :: 2 :: Writ Petition No.2976/2014.
Board, participated in selection and by order-dated 26.9.2013, were appointed on contract till 31.3.2014.
Subsequently, by order-dated 10.2.2014, the contract appointment has been rescinded on the anvil that the documents submitted by them found to be untrue as per clause 2.9 of the Directorate, Health Services NRAM Madhya Pradesh Letter No.NRHM/HR/2014/510 Bhopal dated 17.1.2014, as the petitioners have completed their rotatory internship while in service.
It is contended that the action has been taken without affording any opportunity of hearing and the facts, on which the appointment has been cancelled, are non-existing facts.
It is urged that the internship was completed much before the issuance of appointment letter and therefore, the respondents are not justified in rescinding the contractual appointment on the ground that the rotatory internship was done while in service.
It is further contended that the petitioners had the provisional registration with Madhya Pradesh Ayurvedic Tatha Unani Chikitsha Padhati Avam Prakratik Chiktsa Board on 4.10.2014 and thereafter, were registered with the Board on 8.10.2013.
It is, accordingly, contended that had the petitioners were given the opportunity to show cause they could have explained the fact that the appointment was not sought by concealing the facts or on the basis of wrong documents.
These submissions, though attractive, but when tested on the anvil of the facts on record, fail to make any impression as would warrant any interference.
:: 3 :: Writ Petition No.2976/2014.
The petitioners do not dispute the advertisement for appointment was issued in June, 2013 (as is evident from the time-table appended with Annexure P/1).The last date for applying for the post on-line was 5.7.2013 (i.e.between 15.6.2013 to 5.7.2013).It is not disputed that the essential qualification for appointment as Unani Medical Officer was - fof/k }kjk LFkkfir ekU;rk izkIr fo'ofo|ky; ls ch-;w-,e-,l mikf/k tks lh-lh-vkbZ-,e }kjk ekU;rk izkIr gks A rFkk e-iz- vk;qosZfnd ,oa ;wukuh rFkk izkÑfrd fpfdRlk cksMZ ls oS/k iath;u A Since the above qualification was imperative, the cut-off date, though not specifically mentioned in the advertisement, for acquiring qualification in absence of any other stipulation has to be 5.7.2013, the last date of filling the form.
PetitioneRs.completed their BUMS in May, 2012 and were given provisional registration certificate by the Board on 4.10.2012 which, as per stipulation thereon, was for internship prupose only.
The internship, as apparent from the certificate dated 20.9.2013, was from 21.9.2012 to 20.9.2013.
Thus, on the cut off date i.e.5.7.2013, the petitioners did not even complete their internship.
The registration with the Board has been much after i.e.on 18.10.2013.
Clause 2.8 and 2.9 of the Contract Human Resources Policy stipulates - 2-8 vuqca/k iwoZ vH;fFkZ;ksa dks jktif=r vf/kdkjh }kjk lR;kfir fuEu nj ds lkFk ewy nLrkost Hkh izek.khdj.k gSr.izLrqr gksaxsa %& :: 4 :: Writ Petition No.2976/2014.
• gkbZ Ldwy lfVZfQdsV ifj{kk ¼10+2½ dh vadlwph • lacaf/kr in gSr.fu/kkZfjr U;wure 'kS{kf.kd ;ksX;rk dh vadlwph • lacaf/kr in gSr.fu/kkZfjr ckaNuh; 'kS{kf.kd ;ksX;rk dh vadlwph • ekU;rk izkIr fo'ofo|ky; ls izkIr Lukrd@LukrdksRrj mif/k • l{ke vf/kdkjh }kjk tkjh oS/k tkfr izek.k i= • dk;Z vuqHko izek.k i= 2-9 mijksDr leLr nLrkost izLrqr u djus ,oa ijh{k.k ds nkSjku vFkok nLrkostksa ds vlR; ik;s tkus ij vH;FkhZ dh fu;qfDr vekU; dh tk ldsxh A It being not the case of the petitioners that they were possessing requisite qualification as on cut off date, were thus not possessing requisite qualification for appointment to the post of contract Unani Medical Officer.
The appointment was, thus, void ab initio.
There was no accrual vested right in favour of the petitioners and affording an opportunity for hearing would have been a "useless formality" as held in Aligarh Muslim University versus Mansoor Ali Khan (2000) 7 SCC529 M.C.Mehta v.
Union of India AIR1999SC2583and State of Manipur vs.Y.Token Singh (2007) 5 SCC65 In Aligarh Muslim University (supra).it has been held - "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 of 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 :: 5 :: Writ Petition No.2976/2014.
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 Reddy, J.
in S.C.Kapoor versus Jagmohan, 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." In M.C.Mehta (supra).it has been held - "22.
It is, therefore, clear that if on the admitted or indisputable factual position, only one conclusion is possible and permissible, the Court need not issue a writ merely because there is violation of principles of natural justice.
23.
Before we go into the final aspects of this contention, we would like to state that cases relating to breach of natural justice, do also occur where all facts are not admitted or are not all beyond dispute.
In the context of those cases here is a considerable case law and literature as to whether relief can be refused even if the Court thinks that the case of the applicant is not one of "real substance" or that there is no substantial :: 6 :: Writ Petition No.2976/2014.
possibility of his success or that the result will not be different, even if natural justice is followed.
See Malloch v.
Aberdeen Corporation, (1971) 1 WLR1578 (per Lord Reid and Lord Wilberforce).Glynn v.
Keele University, (1971) 1 WLR87 Cinnamond v.
British Airport Authority, 1980 (1) WLR582and other cases where such a view has been held.
The latest addition to this view is R v.
Ealing Magistrates' Court exp.
Fannaran, (1996) 8 Admn LR351(358) (See Desmith Suppl.p.89) (1998) where Straughton L.J.held that there must be 'demonstrable beyond doubt' that the result would have been different.
Lord Woolf in Lloyd v.
McMahon (1987) 2 WLR821(862) has also not disfavoured refusal of discretion in certain cases of breach of natural justice.
The New Zealand Court in McCarthy v.
Grant 1959 NZLR1014 however, goes half way when it says that (as in the case of bias).it is sufficient for the applicant to show that there is 'real likelihood - not certainty - of prejudice'.
On the other hand, Garner Administrative Law (8th Edition 1996, pp.
271-272) says that slight proof that the result would have been different is sufficient.
On the other side of the argument, we have apart from Ridge v.
Baldwin (1964 AC40, Megarry J.
in John v.
Rees, (1969) 2 WLR1294 stating that there are always 'open and shut cases' and no absolute rule of proof of prejudice can be laid down.
Merits are not for the Court but for the authority to consider.
Ackner, J.
has said that the "useless formality theory" is a dangerous one and, however inconvenient, natural justice must be followed.
His Lordship observed that "convenience and justice are often not on speaking terms".
More recently Lord Bingham has deprecated the 'useless formality' theory in R v.
Chief Constable of the Thames Valley Police Forces exp.
Cotton 1990 IRLR344 by giving six reasons.
(see also his article 'Should Public Law Remedies be Discretionary?.' 1991 PL64.
A detailed and emphatic criticism of the 'useless formality theory' has been made much earlier in 'Natural Justice, Substance or Shadow' by Prof.D.H.
Clark of Canada :: 7 :: Writ Petition No.2976/2014.
(see 1975 PL pp.
27-63) contending that Malloch and Glynn were wrongly decided.
Foulkes (Administrative Law, 8th Ed.
1996, p.
323).Craig (Administrative Law, 3rd Ed.p.596) and others say that the Court cannot pre- judge what is to be decided by the decision-making authority.
DeSmith (5th Ed.
1994 paras 10.031 to 10.036) says Courts have not yet committed themselves to any one view though discretion is always with the Court.
Wade (Administrative Law, 5th Ed.
1994, pp.
526-
530) says that while futile writs may not be issued, a distinction has to be made according to the nature of the decision.
Thus, in relation to cases other than those relating to admitted or indisputable facts, there is considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a "real likelihood' of success or if he is entitled to relief even if there is some remote chance of success.
We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is considerable unanimity that the Courts can, in exercise of their "discretion", refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed.
We may also state that there is yet another line of cases as in State Bank of Patiala v.S.K.
Sharma, (1996) 3 SCC364: (1996 AIR SCW1740: AIR1996SC1669, Rajendra Singh v.
State of M.P.(1996) 5 SCC460: (1996 AIR SCW3424: AIR1996SC2736, that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest.
In the former case, it can be waived while in the case of the latter, it cannot be waived." In Y.
Token Singh (above).it has been observed - 22.
The respondents, therefore, in our opinion, were not entitled to hold the posts.
In a case of this nature, :: 8 :: Writ Petition No.2976/2014.
where the facts are admitted, the principles of natural justice were not required to be complied with, particularly when the same would result in futility.
It is true that where appointments had been made by a competent authority or at least some steps have been taken in that behalf, the principles of natural justice are required to be complied with, in view of the decision of this Court in Murugayya Udayar (supra).30.
In M.C.Mehta v.
Union of India and Others [(1999) 6 SCC237, this Court developed the "useless formality" theory stating: "More recently Lord Bingham has deprecated the useless formality theory in R.v.Chief Constable of the Thames Valley Police Forces, ex p Cotton by giving six reasons.
(See also his article Should Public Law Remedies be Discretionary?.
1991 PL, p.
64.) A detailed and emphatic criticism of the useless formality theory has been made much earlier in Natural Justice, Substance or Shadow by Prof.
D.H.Clark of Canada (see 1975 PL, pp.
27-
63) contending that Malloch and Glynn were wrongly decided.
Foulkes (Administrative Law, 8th Edn., 1996, p.
323).Craig (Administrative Law, 3rd Edn., p.
596) and others say that the court cannot prejudge what is to be decided by the decision-making authority.
de Smith (5th Edn., 1994, paras 10.031 to 10.036) says courts have not yet committed themselves to any one view though discretion is always with the court.
Wade (Administrative Law, 5th Edn., 1994, pp.
526-30) says that while futile writs may not be issued, a distinction has to be made according to the nature of the decision.
Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a real likelihood of success or if he is entitled to relief even if there is some remote chance of success.
We may, however, point out :: 9 :: Writ Petition No.2976/2014.
that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the courts can, in exercise of their discretion, refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed.
We may also state that there is yet another line of cases as in State Bank of Patiala v.
S.K.Sharma, Rajendra Singh v.
State of M.P.that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest.
In the former case, it can be waived while in the case of the latter, it cannot be waived." Having thus considered, this Court does not find any substance in the petition as would warrant any interference.
Consequently, petition fails and is dismissed.
No costs.
(SANJAY YADAV) JUDGE vinod