Delhi High Court
Jang Bahadur Anand vs The Governing Body Of Kalindi ... on 10 December, 2009
Author: Rekha Sharma
UNREPORTABLE
* IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P. (C) No.53/1990
Date of Decision: December 10, 2009
JANG BAHADUR ANAND ..... Petitioner
Through Mr. Rajinder Dhawan, Advocate
with Ms. Shefali Dhawan, Advocate
versus
THE GOVERNING BODY OF KALINDI COLLEGE & ORS
....... Respondents
Through Mr. G D Gupta, Senior Advocate
with Mr. Vikram Saini, Advocate for
respondent No.4.
Mr. V P Chaudhary, Senior Advocate
with Ms. Sushma, Advocate for
respondent No.5.
Mr. Puneet Saini, Advocate for
respondents No.1 to 3/Kalindi College.
Mr. Anurag Mathur, Advocate.
CORAM:
HON'BLE MISS JUSTICE REKHA SHARMA
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.
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
