Supreme Court of India
MUKESH KUMAR BADONIversusSTATE OF PUNJAB AND ORS.
- Citation
- 2008 INSC 290
- Decided
- 4 March 2008
- Disposal
- Dismissed
- Bench
- S B SINHA
Holding
The appellant lacked the required qualification and approval, so no writ could be issued and the appeal under Article 136 was dismissed.
Summary
The appellant was appointed as a chowkidar in a college on a one‑year probationary basis, subject to approval by the Director of Public Instructions, Punjab. The Director refused approval because the appellant did not have Punjabi as a subject in Class VIII, a mandatory qualification, and the college continued to pay his salary from its own funds. The appellant was relieved of duties during probation and filed a writ petition, which the High Court dismissed. On appeal, the Supreme Court examined whether the appellant possessed the required qualification and whether the lack of approval barred any writ relief. Finding that the appellant indeed lacked the requisite qualification and that his appointment had never been approved, the Court held that no writ could be issued and that the matter was not suitable for exercise of jurisdiction under Article 136. Consequently, the appeal was dismissed without any order as to costs.
Issues considered
- Whether the appellant, who was appointed on probation without the requisite Punjabi qualification and without approval of the competent authority, is entitled to relief under Article 226 of the Constitution.
- Whether the High Court's dismissal of the writ petition can be set aside on the ground that the Director of Public Instructions had not refused approval.
- Whether the Supreme Court can entertain the appeal under Article 136 of the Constitution in the present circumstances.
Legislation cited
- Constitution of Indias. Article 136, s. Article 226
Subjects
service lawprobationary appointmentqualification requirementapproval of competent authoritywrit petitionArticle 136Article 226educational institution employment
Judgment
(2008] 3 S.C.R. 1017
MUKESH KUMAR BADONI A
v.
STATE OF PUNJAB AND ORS.
(Civil Appeal No. 1731 of 2008)
MARCH 4, 2008
B
[S.B. SINHA AND V.S. SIRPURKAR, JJ.]
Service Law:
Termination - Appellant appointed on probation of one
year - He did not have requisite qualification - Appointment C
not approved by competent authority as required- Termination
of Appellant within period of probation - Writ petition filed by
him - Dismissed by High Court - Justification of - Held:
Justified - No case for interference ulart. 136 - Constitution of
India, 1950- arts.226 and 136. D
Appellant was appointed as a Chowkidar in
Respondent No.3-college on probation of one year. The
appointment was subject to approval of the Director of
Public Instructions, Punjab, Chandigarh. The said
authority purportedly declined to accord approval of the • E
appointment of Appellant on the ground that he did not
have the requisite qualiftcation of having cleared Punjabi
as a subject in Class VIII. Appellant was relieved from his
duties within the period of probation. He filed writ petition
before High Court which was dismissed. F
The Appellants contended before this Court that the
stand taken by Respondents that the Director of Public
Instructions had refused to accord his approval was
factually incorrect and in that view of the matter the
impu9Jled judgment of the High Court should be set a~ide. G
Dismissing the appeal, the Court
'' HELD: 1.1. It is now conceded before this Court that
1017 H
1018 SUPREME COURT REPORTS [2008] 3 S.C.R.
A the Director of Public Instructions expressly had not
refused to accord its approval to the appointment of the t,
appellant in the College. Such a stand, therefore, ought
not to have been taken. It is expected of an educational
institutional to take a fair stand before a Court of Law.
B [Para 9] (1021-C, D]
1.2. It, however, appears from the records of the case
that the sanction for the said appointment was not "'~
received by the Institute. The salary of the appellant was
being paid by the College itselffrom its funds and not from
c the grant received from the State. It may be that the
Respondents had taken different stands at different
stages but the fact remains that the services of Appellant
have not been approved by the Director ef Public
Instructions. He does not possess the requisite
D qualification. Unless an express approval of the
competent authority is granted, he cannot be permitted
to continue in services with the College. [Paras 10, 13]
[1021-D, E; 1022-A, B]
2.1. Appellant passed his Matriculation examination
E from Uttar Pradesh. He, in view of the reply of the College
to the Advocate for the appellant, must have knowledge
that one of the requisite qualifications required for his
appointment was that he must had Punjabi as a subject
in VIII class. (Para 11] (1021-E, F] ,,,
F
2.2. In his writ petition, however, the appellant did not
state that he possessed the said qualification. Even in the . ..,
special leave petition he did not make any statement that
he holds the requisite qualification. If he does not possess
the requisite qualification, this Court and also for that
G
matter the High Court, could not issue a writ, which would ,.....
be futile in nature. [Para 12] [1021-G; 1022-A]
3. The present case is not a fit case where this Court
could exercise its jurisdiction under Article 136 of the
H Constitution. [Para 14] (1022-8, C]
MUKESH KUMAR BADONI v. STATE OF PUNJAB AND 1019
ORS. [S.B. SINHA, J.]
.r CIVILAPPELLATE'JURISDICTION: Civil Appeal No. 1731 A
of 2008.
From the final order dated 2/9/2003 of the High Court of
Punjab and Haryana at Chandigarh in C.W.P. No. 13836/2003.
V. Shekhar, S. Ganesh and V. Sivasubramanian for the B
Appellant.
Ajay Pal and Vinay Kumar Garg for the Respondents .
..
The Judgment of the Court was delivered by
S.B. SINHA, J. Leave granted. c
1. Appellant was employed as a Chowkidar by the
respondent No.3. He applied for his appointment to the said
post of Chowkidar upon having come to learn that the same
• was lying vacant. Respondent No.3 had issued an offer of D
• appointment in his favour on or about 3rct August, 2002. His
appointment was to be on probation for one year and subject to
approval of Director of Public Instructions Pnnjab, Chandigarh.
He was, however, relieved from his duties with effect from 28 1h
July, 2003 on the premise that his services were no longer E
required by the College.
3. He served a legal notice upon the authorities of the
College as also the Director of Public Instructions. Respondent
. No.3 in reply to the said notice on the Advocate of the appellant
dated 20 1h October, 2003, inter alia stated :- F
" "3. Ref. to para No.3 your client was appoihted as
chowkidar on 3.8.2002 after retirement of Shri Ram
Bahadur on 31.3.2002 with the pay scale of 2620 +DA &
other allowances as per Govt. rate. Ref. to your points
G
under para No.3, it is stated that his case was sent to the
DPI (C) Punjab, Chandigarh for approval but the same
~
•• was rejected by the DPI (C) Punjab, Chandigarh due to
non-clearance of Punjabi as a subject in 81h Std. vide letter
No.2314 grant 11, dated 28.3.2003.
H
1020 SUPREME COURT REPORTS [2008] 3 S.C.R.
A 4. Ref. to para No.4 as stated earlier that his approval for 1,
the post of chowkidar was rejected by the DPI (C), Punjab,
Chandigarh vide above said letter no. due to non-clearance
of Punjabi as a subject in 9th Std. & no grant was received
for his post till date from the DPI (C), Punjab, Chandigarh
B and the college has made the payment of his salary by
Managing Committee account. Thus there is no question
of his extension of probation at this stage."
4. An advertisement was also issued in regard to the filling
up of the said post.
c
5. Appellant thereafter filed a writ petition before the Punjab
and Haryana High Court. The said writ petition has been
dismissed by reason of the impugned judgment dated 2nd
September, 2003.
D 6. Mr. Shekhar, learned senior Counsel appearing on behalf
of the appellant would subm~t that the respondents having
prerunciated its stand from stage to stage, the impugned
judgment is wholly unsustainable. He drew our attention to the
fact that the stand taken before this Court that the Director of
E Public Instructions had refused to accord his approval is factually
incorrect and in that view of the matter the impugned judgment
should be set aside.
7. This Court noticing the specific stand taken that the
Director of Public Instructions had refused to accord approval
.
F of the appointment of the appellant, directed to file an affidavit
in regard thereof; pursuant whereto Maninder Dhillon, Deputy
Director (C&P) has affirmed an affidavit stating:-
"3. That this is the actual letter which was received in the
office and was returned in original to the D.A.N. College
G
of Education for Women, Nawa Shahar Doaba with
objections to produce the following documents.
i) Signed copy of the joining report.
r
ii) Certificate of Punjabi Pass
H
MUKESH KUMAR BADONI v. STATE OF PUNJAB AND 1021
ORS. [S.B. SINHA, J.)
ff 4. That the fact of refusing the letter in Original and receipt A
thereof by the college representative is evident from
the noting portion of the file No.8/14-07-Grant-11(3)
page 22 & 23."
8. By reason of the said purported letter dated 28 1h March,
2003, thus, the application of the appellant together with other B
documents were sent back to the College so as to enable it to
send the same back together with the certificate that the
appellant holds the requisite qualification as also the signed
copy of his joining report.
c
9. It is now conceded before us that the Director of Public
Instructions expressly had not refused to accord its approval to
the appointment of the appellant in the College. Such a stand,
therefore, ought not to have been taken. It is expected of an
educational institutional to take a fair stand before a Court of
~
D
Law.
10. It, however, appears from the records of the case that
the sanction for the said appointment was not received by the
Institute. The salary of the appellant was being paid by the
College itself from its funds and not from the grant received from E
the State. It is not in dispute that the institution in question being
a Girls Institution, a Chowkidar is required to possess a
certificate of knowledge of the Punjabi language.
,. 11. Appellant has passed his Matriculation examination
from Uttar Pradesh. As noticed hereinbefore, the Appellant in F
"' view of the reply of the College to the learned Advocate for the
appellant must have knowledge that one of the requisite
qualifications required for his appointment was that he must had
Pnnjabi as a subject in VIII class.
G
12. In his writ petition, however, the appellant did not state
that he possessed the said qualification. Even in the special
' leave petition he did not make any statement that he holds the
requisite qualification. If he does not possess the requisite
qualification, this Court and also for that matter the High Court,
H
1022 SUPREME COURT REPORTS [2008] 3 S.C.R.
A could not issue a writ, which would be futile in nature.
13. · It may be that the respondents had taken different
stands at different stages but the fact remains that his services
have not been approved by the Director of Public Instructions.
He does not possess the requisite qualification. Unless an
8 express approval of the competent authority is granted, he cannot
be permitted to continue in services with the College.
14. For the reasons aforementioned, we are of the opinion
that it is not a fit case where this Court could exercise its
c jurisdiction under Article 136 of the Constitution of India. The
·appeals fails and is accordingly dismissed. In he facts and
circumstances of the case, however, there shall be no order as
to costs.
B.B.B. Appeal dismissed.
D ..•
I
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