http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11

CASE NO.:

Appeal (civil) 4761 of 2006

PETITIONER:

Ashok Kumar Sonkar

RESPONDENT:

Union of India & Others

DATE OF JUDGMENT: 23/02/2007

BENCH:

S.B. Sinha & Markandey Katju

JUDGMENT:

J U D G M E N T

S.B.SINHA, J :

Banaras Hindu University (for short, 'the University) issued an

advertisement on 25.03.1995, iner alia, for filling up a vacant post of

lecturer in Tridosa Vigyan in the Department of Basic Principles. Relevant

clauses of the said advertisement are as under :

"Those who have applied earlier are required to

apply again on the prescribed format for the post,

otherwise their candidature will not be considered. They

will, however, be exempted from any payment against

the application. Their cases will be considered according

to the up-dated qualification."

Essential qualifications prescribed for the said post are :

"70. Lecturer in Tridosa Vigyan (One) [Department of Basic

Principles]

Qualifications :

Essential 1. ABMS or equivalent examination

from any recognized institution.

2. M.D. in Sharir-Kriya

Desirable 1. Standard publication in the filed of

Neurophysiology, Neurochemistry,

related to Tridosa Vigyan.

2. Knowledge of Modern Medical

Science and Sanskrit."

Appellant applied for the said post on 30.05.1995. As on that day, he

had not completed his M.D. in Sharir Kriya, with his application he enclosed

a certificate issued by Professor and Head of the Department of Basic

Principles, Institute of Medical Sciences, Banaras Hindu University, which

reads as under :

"This is to certify that Dr. Ashok Kumar Sonkar

son of Dr. K.P. Sonkar, is a bona fide student of the

Department of Basic Principles. He was admitted for the

Degree of M.D. (Ay.) Basic Principles (Sharir-Kriya) on

1st August, 1992 and his final examination will be held in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11

October, 1995. His thesis entitled "Clinical evaluation of

therapeutic potential of certain indigenous drugs in

seizure disorders" will be submitted in the month of June,

1995.

He is sincere, hard working young man, zealous

and outwitted scholar and sound character of this

department. He is fit to be entrusted for clinical,

research, teaching and administrative responsibilities.

I wish him all success in future life."

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 the requisite qualification till the date of filing of such application. He,

however, was selected and offered an appointment. He joined the said post.

In the meanwhile, Respondent No. 4 filed a writ petition before the

Allahabad High Court, which was marked as Writ Petition No. 20883 of

1997. The High Court by reason of an order dated 17.02.1998 dismissed

the said writ petition on the premise that he had an alternative remedy.

Respondent No.4 thereafter moved the President of India in his capacity of

the 'Visitor' of the said University. The 'Visitor' was of the opinion that the

selection process was illegal. The selection proceeding, therefore, was set

aside. However, before the said order was passed, the comments of the

University were called for. The University offered its comments. The order

of the Visitor was communicated by the Desk Officer, Ministry of Human

Resource Development (Department of Secondary Education and Higher

Education), Government of India, by a letter dated 18.10.2000, intimating

the Registrar of the University that the President of India in his capacity as

the Visitor of the University had annulled the appointment of the appellant

in exercise of the power conferred upon him under Section 5(7) of the

Banaras Hindu University Act, 1915 (for short, 'the Act'), the relevant

portion of the said letter is as under :

"Kindly refer to your letter No.AA/VI-SC/1460

dated the 15 July, 2000 forwarding therewith 1460 a

reply of the University to the show cause Notice issued in

exercise of the powers conferred upon the President of

India in his capacity as the Visitor of the University

under Section 5(7) of the Banaras Hindu University Act,

1915. The Visitor, after considering the reply of the

University, pleased to annul the appointment of Dr.

Ashok Kumar Sonkar as Lecturer in Tridosh Vigyan

IMS, Banaras Hindu University with immediate effect.

This issue on the basis of communication received

from President's secretariat vide their No. 28(2)(xiii) 98-

CA (II), dated 21.03.2000. The University may take

further necessary action immediately after intimation to

this Department."

A writ petition was filed by the appellant before the Allahabad High

Court. By reason of the impugned judgment dated 26.05.2006, the said writ

petition has been dismissed.

Mr. V. Shekhar, the learned counsel appearing on behalf of the

appellant, in support of this appeal, would submit :

1) In absence of any cut-off date having been specified in the

advertisement and in view of the fact that the statute or statutory rules

in this behalf are also silent in regard to the question as to whether the

Selection Committee could allow the appellant to take part in the

selection process as he had completed his M.D. before he was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11

considered therefor, the High Court committed a manifest error in

arriving at the finding.

2) In view of the fact that the appellant was confirmed in the post of

lecturer, it was obligatory on the part of the Visitor to give an

opportunity of hearing to the appellant.

3) The University having taken a definite stand before the High Court in

the earlier writ petition that the appellant was selected in terms of the

prevailing practice, the impugned judgment is unsustainable.

4) The jurisdiction of the Visitor being limited under sub-section (2) of

Section 5 of the Act, new appointment could not have formed subject-

matter of his decision.

5) Respondent No. 4 being himself ineligible, he did not have any locus

standi to maintain the writ petition or make a representation before the

Visitor of the University.

6) In any event, keeping in view the facts and circumstances of the case,

it was obligatory on the part of the High Court in equity to refuse to

exercise its discretionary jurisdiction.

Mr. G.E. Vahanvati, the learned Solicitor General and Dr. Rajeev

Dhawan, the learned Senior Counsel, appearing on behalf of the

respondents, however, supported the impugned judgment.

Section 5 of the Act provides that the President of India shall be the

Visitor of the University. Sub-section (7) of Section 5 of the Act, however,

confers power upon the Visitor of the University, without prejudice to the

other provisions contained in the said Section, by order in writing, to annul

any proceeding of the University which is not in conformity with the said

Act, the Statutes or the Ordinances. Proviso appended thereto, however,

mandates the Visitor to call upon the University to show cause why such an

order should not be made and if any cause is shown within a reasonable time

shall consider the same, before making any such order.

Indisputably, the recruitment of the academic staff of the University is

governed by the provisions of the said Act and the Statutes and Ordinances

framed thereunder.

The question as to what should be the cut-off date in absence of any

date specified in this behalf either in the advertisement or in the reference is

no longer res integra. It would be last date for filing application as would

appear from the discussions made hereinafter.

The question came up for consideration, inter alia, before a 3-Judge

Bench of this Court in Ashok Kumar Sharma and Another etc. v. Chander

Shekher and Another etc. [(1993) Supp. (2) SCC 611], wherein Thommen, J.

speaking for himself and Ramaswami, J. opined :

"13. It is true Rule 37 is in terms applicable only to

Public Service Commission candidates and due notice of

provisional entertainment of their application, subject to

their passing examination before the date of interview, is

a requirement peculiar to Rule 37 and is not applicable to

the present case.

14. If the principle of Rule 37 is by analogy applicable,

the fact that notice of provisional entertainment of

applications, subject to passing of the examination before

the date of interview, is a requirement in the interests of

candidates who fell within that category. The appellants

are by analogy persons of that category, but they have no

complaint on any such ground.

15. The fact is that the appellants did pass the

examination and were fully qualified for being selected

prior to the date of interview. By allowing the appellants

to sit for the interview and by their selection on the basis

of their comparative merits, the recruiting authority was

able to get the best talents available. It was certainly in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11

the public interest that the interview was made as broad

based as was possible on the basis of qualification. The

reasoning of the learned Single Judge was thus based on

sound principle with reference to comparatively superior

merits. It was in the public interest that better candidates

who were fully qualified on the dates of selection were

not rejected, notwithstanding that the results of the

examination in which they had appeared had been

delayed for no fault of theirs. The appellants were fully

qualified on the dates of the interview and taking into

account the generally followed principle of Rule 37 in the

State of Jammu & Kashmir, we are of opinion that the

technical view adopted by the learned Judges of the

Division Bench was incorrect and the view expressed by

the learned Single Judge was, on the facts of this case,

the correct view. Accordingly, we set aside the impugned

judgment of the Division Bench and restore that of the

learned Single Judge. In the result, we uphold the results

announced by the recruiting authority. The appeal is

allowed in the above terms. However, we make no order

as to costs."

Sahai, J., however, gave a dissenting note, stating :

"\005The notification, therefore, provided not, only, the

conditions which a candidate was required to possess

when applying for the post mentioned in the notification

but he was also required to support it with authenticated

certificate and if he failed to do so then the application

was not liable to be entertained. In legal terminology

where something is required to be done and the

consequences of failure to do so are also provided then it

is known as mandatory. The mandatory character of

possessing the requirements as provided in the first part

of the notification stands further strengthened from the

third and last part of the notification which prohibited the

candidates from applying if they did not possess the

requisite qualifications. In view of these clear and

specific conditions laid down in the advertisement those

candidates who were not possessed of the B.E.

qualifications were not eligible for applying nor their

applications were liable to be entertained nor could they

be called for interview. Eligibility for the post mentioned

in the notification depended on possessing the

qualification noted against each post. The expression,

shall be possessed of such qualifications, is indicative of

both the mandatory character of the requirement and its

operation in praesenti. That is a candidate must not only

have been qualified but he should have been possessed of

it on the date the application was made. The construction

suggested by the learned counsel for the appellant that

the relevant date for purposes of eligibility was the date

of interview and not the date of application or July 15,

1982 the last date for submission of forms is not made

out from the language of the notification. Acceptance of

such construction would result in altering the first part of

the advertisement prescribing eligibility on the date of

applying for the post as being extended to the date of

interview. If it is read in the manner suggested then the

requirement that incomplete applications and those not

accompanied by the requisite certificates shall not be

entertained, shall become meaningless. Purpose of filing

certificate along with application was to prove that the

conditions required were satisfied. Non-filing of any of

the certificates could have resulted in not entertaining the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11

application as the requirements as specified would have

been presumed to be non-existent. Fulfilment of

conditions was mandatory and its proof could be

directory. The former could not be waived or deferred

whereas the defect in latter could be cured even

subsequently. That is proof could be furnished till date of

interview but not the eligibility to apply for the post. Any

other construction would further be contrary to the last

part of the notification."

A review application was filed which was admitted. The matter was

again placed before a 3-Judge Bench of this Court in Ashok Kumar Sharma

and Others v. Chander Shekhar and Another [(1997) 4 SCC 18]. One of the

issues which fell for consideration of the Bench being Issue No. 1 reads as

under :

"(1) Whether the view taken by the majority

(Honble Dr Thommen and V. Ramaswami, JJ.) that it is

enough for a candidate to be qualified by the date of

interview even if he was not qualified by the last date

prescribed for receiving the applications, is correct in law

and whether the majority was right in extending the

principle of Rule 37 of the Public Service Commission

Rules to the present case by analogy?"

It was held :

"\005So far as the first issue referred to in our Order dated

1-9-1995 is concerned, we are of the respectful opinion

that majority judgment (rendered by Dr T.K. Thommen

and V. Ramaswami, JJ.) is unsustainable in law. The

proposition that where applications are called for

prescribing a particular date as the last date for filing the

applications, the eligibility of the candidates shall have to

be judged with reference to that date and that date alone,

is a well-established one. A person who acquires the

prescribed qualification subsequent to such prescribed

date cannot be considered at all. An advertisement or

notification issued/published calling for applications

constitutes a representation to the public and the

authority issuing it is bound by such representation. It

cannot act contrary to it. One reason behind this

proposition is that if it were known that persons who

obtained the qualifications after the prescribed date but

before the date of interview would be allowed to appear

for the interview, other similarly placed persons could

also have applied. Just because some of the persons had

applied notwithstanding that they had not acquired the

prescribed qualifications by the prescribed date, they

could not have been treated on a preferential basis. Their

applications ought to have been rejected at the inception

itself. This proposition is indisputable and in fact was not

doubted or disputed in the majority judgment. This is

also the proposition affirmed in Rekha Chaturvedi v.

University of Rajasthan. The reasoning in the majority

opinion that by allowing the 33 respondents to appear for

the interview, the recruiting authority was able to get the

best talent available and that such course was in

furtherance of public interest is, with respect, an

impermissible justification. It is, in our considered

opinion, a clear error of law and an error apparent on the

face of the record. In our opinion, R.M. Sahai, J. (and the

Division Bench of the High Court) was right in holding

that the 33 respondents could not have been allowed to

appear for the interview.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11

The said decision is, therefore, an authority for the proposition that in

absence of any cut-off date specified in the advertisement or in the rules, the

last date for filing of an application shall be considered as such.

Indisputably, the appellant herein did not hold the requisite

qualification as on the said cut-off date. He was, therefore, not eligible

therefor.

In Bhupinderpal Singh & Others v. State of Punjab & Others [(2000)

5 SCC 262], this Court moreover disapproved the prevailing practice in the

State of Punjab to determine the eligibility with reference to the date of

interview, inter alia, stating :

"13. Placing reliance on the decisions of this Court in

Ashok Kumar Sharma v. Chander Shekhar, A.P. Public

Service Commission v. B. Sarat Chandra, District

Collector and Chairman, Vizianagaram Social Welfare

Residential School Society v. M. Tripura Sundari Devi,

Rekha Chaturvedi v. University of Rajasthan, M.V. Nair

(Dr) v. Union of India and U.P. Public Service

Commission U.P., Allahabad v. Alpana the High Court

has held (i) that the cut-off date by reference to which the

eligibility requirement must be satisfied by the candidate

seeking a public employment is the date appointed by the

relevant service rules and if there be no cut-off date

appointed by the rules then such date as may be

appointed for the purpose in the advertisement calling for

applications; (ii) that if there be no such date appointed

then the eligibility criteria shall be applied by reference

to the last date appointed by which the applications have

to be received by the competent authority. The view

taken by the High Court is supported by several decisions

of this Court and is therefore well settled and hence

cannot be found fault with. However, there are certain

special features of this case which need to be taken care

of and justice be done by invoking the jurisdiction under

Article 142 of the Constitution vested in this Court so as

to advance the cause of justice."

[See Jasbir Rani and Others v. State of Punjab & Another [JT 2001 (9) SC

351 : (2002) 1 SCC 124].

Yet again in Shankar K. Mandal and Others v. State of Bihar and

Others [(2003) 9 SCC 519], this Court held that the following principles

could be culled out from the aforementioned decisions :

" (1) The cut-off date by reference to which the eligibility

requirement must be satisfied by the candidate seeking a

public employment is the date appointed by the relevant

service rules.

(2) If there is no cut-off date appointed by the rules then

such date shall be as appointed for the purpose in the

advertisement calling for applications.

(3) If there is no such date appointed then the eligibility

criteria shall be applied by reference to the last date

appointed by which the applications were to be received by

the competent authority."

In M.A. Murthy v. State of Karnataka & Others [(2003) 7 SCC 517], a

contention was made that Ashok Kumar-II (supra) was to operative

prospectively or not. The said contention was rejected, stating :

"\005It is for this Court to indicate as to whether the decision

in question will operate prospectively. In other words,

there shall be no prospective overruling, unless it is so

indicated in the particular decision. It is not open to be held

that the decision in a particular case will be prospective in

its application by application of the doctrine of prospective

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11

overruling. The doctrine of binding precedent helps in

promoting certainty and consistency in judicial decisions

and enables an organic development of the law besides

providing assurance to the individual as to the

consequences of transactions forming part of the daily

affairs. That being the position, the High Court was in

error by holding that the judgment which operated on the

date of selection was operative and not the review

judgment in Ashok Kumar Sharma case No. II. All the

more so when the subsequent judgment is by way of

review of the first judgment in which case there are no

judgments at all and the subsequent judgment rendered on

review petitions is the one and only judgment rendered,

effectively and for all purposes, the earlier decision having

been erased by countenancing the review applications. The

impugned judgments of the High Court are, therefore, set

aside."

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.

Recently, this Court in Kendriya Vidyalaya Sangathan and Others v.

Sajal Kumar Roy and Others [(2006) 8 SCC 671], opined that the conditions

laid down for exercising the power of relaxation must be scrupulously

followed, stating :

"\005The appointing authorities are required to apply their

mind while exercising their discretionary jurisdiction to

relax the age limits. Discretion of the authorities is

required to be exercised only for deserving candidates

and upon recommendations of the Appointing

Committee/Selection Committee. 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 jurisdiction could be

exercised for relaxation of age provided for in the rules

and within the four corners thereof. ..."

Therein, this Court noticed the decision in Food Corporation of India

and Ors. v. Bhanu Lodh and Ors. [(2005) 3 SCC 618], wherein, inter alia, it

was held :

"\005The power of relaxation is intended to be used in

marginal cases where exceptionally qualified candidates

are available. 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\005"

We, therefore, see no infirmity in the judgment of the High Court, in

this behalf.

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11

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. Section 17 provides for a statute making power, including clause

(l), which reads as under :

"(l) the classification and the manner of appointment

of teachers in the University and the colleges;"

Submission of Mr. Shekhar that the Visitor committed an error in

passing the impugned judgment as 'any irregularity in the procedure by any

authority shall not render the same invalid, unless the same affects the merits

of the case' is stated to be rejected. Appointment of a teacher must conform

to the constitutional scheme as adumbrated under Articles 14 and 16 of the

Constitution of India and the terms of the Act or the statute or ordinances

governing the field. Any violation of the provisions thereof would entitle

the Visitor to exercise his jurisdiction under sub-section (7) of Section 6. It

is also beyond any cavil that in exercising the said power, the statutory

provisions interpreted by this Court must be followed.

This bring us to the question as to whether the principles of natural

justice were required to be complied with. 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.

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.

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.

In Aligarh Muslim University and Others v. Mansoor Ali Khan

[(2000) 7 SCC 529], the law is stated in the following terms :

"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

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11

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.

In Karnataka State Road Transport Corporation and Another v. S.G.

Kotturappa and Another [(2005) 3 SCC 409], this Court held :

"\005The question as to what extent, principles of natural

justice are required to be complied with would depend

upon the fact situation obtaining in each case. The

principles of natural justice cannot be applied in vacuum.

They cannot be put in any straitjacket formula. The

principles of natural justice are furthermore not required

to be complied with when it will lead to an empty

formality. What is needed for the employer in a case of

this nature is to apply the objective criteria for arriving at

the subjective satisfaction. If the criteria required for

arriving at an objective satisfaction stands fulfilled, the

principles of natural justice may not have to be complied

with, in view of the fact that the same stood complied

with before imposing punishments upon the respondents

on each occasion and, thus, the respondents, therefore,

could not have improved their stand even if a further

opportunity was given\005"

In Punjab National Bank and Others v. Manjeet Singh and Another

[(2006) 8 SCC 647], this Court opined :

"\005The principles of natural justice were also not

required to be complied with as the same would have

been an empty formality. The court will not insist on

compliance with the principles of natural justice in view

of the binding nature of the award. Their application

would be limited to a situation where the factual position

or legal implication arising thereunder is disputed and not

where it is not in dispute or cannot be disputed. If only

one conclusion is possible, a writ would not issue only

because there was a violation of the principle of natural

justice."

In P.D. Agrawal v. State Bank of India and Others [(2006) 8

SCC 776], this Court observed :

"The Principles of natural justice cannot be put in

a straight jacket formula. It must be seen in

circumstantial flexibility. It has separate facets. It has in

recent time also undergone a sea change."

It was further observed :

"Decision of this Court in S.L. Kapoor vs.

Jagmohan & Ors. [(1980) 4 SCC 379], whereupon Mr.

Rao placed strong reliance to contend that non-

observance of principle of natural justice itself causes

prejudice or the same should not be read "as it causes

difficulty of prejudice", cannot be said to be applicable in

the instant case. The principles of natural justice, as

noticed hereinbefore, has undergone a sea change. In

view of the decision of this Court in State Bank of

Patiala & Ors. vs. S.K. Sharma [(1996) 3 SCC 364]

and Rajendra Singh vs. State of M.P. [(1996) 5 SCC

460], the principle of law is that some real prejudice must

have been caused to the complainant. The Court has

shifted from its earlier concept that even a small violation

shall result in the order being rendered a nullity. To the

principal doctrine of audi alterem partem, a clear

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11

distinction has been laid down between the cases where

there was no hearing at all and the cases where there was

mere technical infringement of the principal. The Court

applies the principles of natural justice having regard to

the fact situation obtaining in each case. It is not applied

in a vacuum without reference to the relevant facts and

circumstances of the case. It is no unruly horse. It

cannot be put in a straightjacket formula. [See Viveka

Nand Sethi vs. Chairman, J. & K. Bank Ltd. & Ots.

(2005) 5 SCC 337 and State of U.P. vs. Neeraj Awasthi

& Ors. JT 2006 (1) SC 19. See also Mohd. Sartaj vs.

State of U.P. (2006) 1 SCALE 265.]"

The principles of equity in a case of this nature, in our opinion, will

have no role to play. Sympathy, as is well-known, should not be misplaced.

In Maruti Udyog Ltd. v. Ram Lal & Others. [(2005) 2 SCC 638], a

Division Bench of this Court, wherein one of us was a member, noticing

some decisions, observed :

"44. While construing a statute, sympathy has no role to

play. This Court cannot interpret the provisions of the said

Act ignoring the binding decisions of the Constitution

Bench of this Court only by way of sympathy to the

workmen concerned.

45. In A. Umarani v. Registrar, Coop. Societies this Court

rejected a similar contention upon noticing the following

judgments: (SCC pp. 131-32, paras 68-70)

68. In a case of this nature this Court should not even

exercise its jurisdiction under Article 142 of the

Constitution of India on misplaced sympathy.

69. In Teri Oat Estates (P) Ltd. v. U.T., Chandigarh it is

stated: (SCC p. 144, paras 36-37)

36. We have no doubt in our mind that sympathy or

sentiment by itself cannot be a ground for passing an order

in relation whereto the appellants miserably fail to

establish a legal right. It is further trite that despite an

extraordinary constitutional jurisdiction contained in

Article 142 of the Constitution of India, this Court

ordinarily would not pass an order which would be in

contravention of a statutory provision.

37. As early as in 1911, Farewell, L.J. in Latham v.

Richard Johnson & Nephew Ltd. observed: (All ER p. 123

E)

We must be very careful not to allow our sympathy with

the infant plaintiff to affect our judgment. Sentiment is a

dangerous will o the wisp to take as a guide in the search

for legal principles.

70. Yet again, recently in Ramakrishna Kamat v. State of

Karnataka this Court rejected a similar plea for

regularisation of services stating: (SCC pp. 377-78, para 7)

We repeatedly asked the learned counsel for the appellants

on what basis or foundation in law the appellants made

their claim for regularisation and under what rules their

recruitment was made so as to govern their service

conditions. They were not in a position to answer except

saying that the appellants have been working for quite

some time in various schools started pursuant to

resolutions passed by Zila Parishads in view of the

government orders and that their cases need to be

considered sympathetically. It is clear from the order of the

learned Single Judge and looking to the very directions

given, a very sympathetic view was taken. We do not find

it either just or proper to show any further sympathy in the

given facts and circumstances of the case. While being

sympathetic to the persons who come before the court the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11

courts cannot at the same time be unsympathetic to the

large number of eligible persons waiting for a long time in

a long queue seeking employment."

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.

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.

Mr. Shekhar is also not correct in contending that the University had

supported the case of the appellant. It was categorically stated by the

University in its counter affidavit that the writ petition being devoid of any

merit should be dismissed. In any event, we have ourselves taken into

consideration the merit of the matter and in that view of the matter the stand

of the University either before the Visitor or in the writ proceedings initiated

by Respondent No. 4 is wholly irrelevant.

For the reasons aforementioned, we do not find any merit in this

appeal, which is dismissed. However, in the facts and circumstances of the

case, there shall be no order as to costs.