Jang Bahadur Anand v. The Governing Body of Kalindi College & Ors

1. Whether the reporters of local papers may be allowed to see the judgment? No

2. To be referred to the reporter or not? No

3. Whether the judgment should be reported in the ‘Digest’? No REKHA SHARMA, J. (ORAL) The petitioner has challenged the appointment of respondent No.4 Shri M.M.Seth to the post of Administrative Officer on the ground that he was not a graduate which was one of the essential qualifications for appointment to the post as per the Circular of the University of Delhi dated September 12, 1989. Accordingly, he has prayed that the appointment of respondent No.4 be quashed. 2009:DHC:5342 However, he has not sought any further relief, such as, his own appointment to the post against which respondent No.4 was appointed. During the pendency of the writ-petition, both the petitioner and respondent No.4 have retired from service and before retirement, petitioner also came to be appointed as Administrative Officer. It is submitted by learned Senior counsel for respondent No.4 and by learned counsel for respondent No.5 who is representing the University of Delhi that since both petitioner and respondent No.4 have retired from service on attaining the age of superannuation and as the petitioner has only prayed for quashing of the appointment of respondent No.4 with no further relief, the question whether he was qualified to hold the post has been rendered academic in nature. According to the counsels, the writ-petition has become infructuous and the question raised need not to be gone into. In support, reliance has been placed upon a judgment of the Apex Court in the case of Shainda Hasan Versus State of Uttar Pradesh and Others, reported in (1990) 3 SCC 48. That was a case where the appointment of Principal in the Karamat Husain Muslim Girls College, Lucknow was challenged. The Supreme Court held that the Principal had already held the post for over 16 years and in view thereof observed that it was unjust to make her leave the post. Accordingly, it directed the Lucknow University and its Vice Chancellor to grant necessary approval to the appointment of the Principal from the date she was holding the post. It is contended by the learned Senior counsel for respondent No.4 and by the counsel for respondent No.5 that the present case stands on a better footing than the case before the Supreme Court, as respondent No.4 having already retired even the question of regularizing his appointment assuming it was irregular/illegal at the first instance does not arise. On the other hand, learned counsel for the petitioner wants this Court to give a finding on, whether the appointment of respondent No.4 was legal or illegal. According to him, in case it is held that the appointment was illegal, this Court can direct the College to recover the pay and allowances which respondent No.4 had received while he held the post of Administrative Officer. Having regard to the facts as noticed above, I feel that much water has flown under the bridge since the writ-petition was filed and at this stage, when both the petitioner and respondent No.4 have retired from service, it will be an exercise in futility to go into the question, whether appointment of respondent No.4 to the post of Administrative Officer way-back on December 11, 1989 was made in accordance with or in violation of the Rules, more so when, as noticed above, the petitioner never sought his own appointment to the post which was held by respondent No.4. There is no merit in the submission of learned counsel for the petitioner that in case a decision favourable to the petitioner is given, then this Court can direct respondent No.4 to refund the salary which he had already received as Administrative Officer. It is nobody’s case that after having been appointed as Administrative Officer, respondent No.4 did not discharge the duties of that post. He all along worked on that post and having worked on the same, he became entitled to the salary and allowances attached thereto. Therefore, assuming this Court was to hold that the appointment of respondent No.4 at the first instance was illegal, it would still not have passed an order directing the College to recover from him the salary and allowances which were paid to him while he worked as Administrative Officer. For the foregoing reasons, I hold that the writ-petition has become infructuous and is dismissed as such.

REKHA SHARMA, J. DECEMBER 10, 2009 PC/ka