CW 5517/09 {1} In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.5517/2008 Banwarilal Verma Versus District Program Co-ordinator & District Collector, Sikar & Ors. Date of Order ::: 04/11/09 Hon'ble Mr. Justice Ajay Rastogi Mr. Amit Singh Shekhawat, for petitioner Mr. VD Gathala, for respondent-4 Mr. Jinesh Jain, Govt. Counsel for respondents Matter has come up on application U/Art. 226(3) of the Constitution of India seeking vacation of interim order dt.04/07/08 whereby operation of order dt.13/05/08 (Ann.4) was stayed and respondents were directed to allow the petitioner to continue to work on the post held prior to order impugned. Instant petition has been filed by petitioner with the grievance that his services were terminated from post of Gram Rojgar Sahyak vide order dt.13/05/08 (Ann.4) without affording opportunity of hearing, merely on the objection being raised by respondent-4 (Rajendra Kr. Meena) However, it has not been controverted that petitioner is a member of Scheduled Caste and the vacancy notified to be filled in of Gram Rozgar Sahyak was reserved for ST (woman), to which since there was no applicant but respondent-4 was only applicant available for CW 5517/09 {2} consideration from Scheduled Tribe (Male) who had submitted application pursuant to advertisement dt.05/03/08 (Ann.1) for the post of Gram Rozgar Sahyak, on which petitioner was appointed vide order dt.08/04/08 (Ann.2) disclosing him to be a member of Schedule Tribe, which is factually incorrect, as he belongs to Schedule Caste. Petitioner & respondent-4 both applied for the post of Gram Rozgar Sahyak in pursuance of advertisement dt.05/03/08 (Ann.1) for making appointment on contract basis in Gram Panchayat Shyam Garh (Sikar). Even under advertisement (Ann.1), vacancy was reserved for Scheduled Tribe (Female) candidate; pursuant to which only two applications were received of petitioner being a member of Scheduled Caste while of respondent-4 a member of Scheduled Tribe. However, petitioner was considered to be meritorious and was given appointment while treating him to be member of Scheduled Tribe, as is evident from order dt.08/04/08 (Ann.2), to which respondent-4 appears to have objected and at this stage matter was examined and it was revealed that petitioner was wrongly given appointment treating him as a member of Scheduled Tribe which was factually incorrect as he belonged to Scheduled Caste, whereas CW 5517/09 {3} respondent-4 being a member of Scheduled Tribe was available in case of female candidate belonging to Scheduled Tribe against reserved vacancy. Taking note whereof and after examining the record, respondents-authority revised the order by appointing respondent-4 as Gram Rozgar Sahyak vide order dt.13/05/08 vice petitioner whose services were terminated. At this stage, petitioner approached this Court by instant petition and while issuing notices vide interim order dt.04/07/08, he was allowed to continue on the post held prior to order impugned. Counsel for petitioner submits that once petitioner was appointed after having undergone process of selection, his services could not have been terminated without affording him opportunity of hearing vide order impugned, which is in violation of principles of natural justice. Per contra, Counsel for respondents submits that an error was committed by respondent State & its agency while the petitioner was given appointment under bonafide belief that he was a member of Scheduled Tribe (Male) which is factually incorrect as in fact he belongs to Scheduled Caste and since respondent-4 being a member of Scheduled Tribe CW 5517/09 {4} (Male) available in case of ST (Female) candidate, was certainly entitled for appointment against reserved vacancy under advertisement in question; thus no error has been committed in appointing him while revising petitioner’s appointment vide order impugned. In the opinion of this Court, submission made by Counsel for petitioner is without substance for the reason that as regards factual position, it remained un- controverted that vacancy under advertisement (Ann.1) was reserved for ST (Female), for which there was no candidate and respondent-4 was the only applicant of Scheduled Tribe (male) and the petitioner was a member of Scheduled Caste, having applied for the post of Gram Rozgar Sahyak in pursuance of advertisement (Ann.1). Appointments were to be made by respondents against reserved vacancy from amongst persons who belonged to respective category SC/ST/OBC or general, as the case may be. In instant case, petitioner is indisputable a member of Scheduled Caste and not of Scheduled Tribe; however was appointed treating him to be member of Scheduled Tribe as is evident from order dt. 08/04/08 (Ann.2). However, on complaint being made by respondent-4, matter was examined and on an error apparent being found, it was CW 5517/09 {5} rectified by giving appointment to respondent-4 vide order dt.13/05/08 vice petitioner whose services were terminated. As regards submission made on behalf of petitioner that before passing order impugned, principles of natural justice were not complied with, suffice it to say that it has been settled that if an order is passed causing prejudice, fair opportunity of hearing is a sine quo non; but it has not to be examined in a straight jacket in the instant case, where the fact remained uncontroversial that vacancy was reserved for Scheduled Tribe (Female), for which category no applicant was available and while petitioner despite being Scheduled Caste member was considered for appointment treating him as a member of Scheduled Tribe (Male), which was pointed out on a complaint made by respondent-4 and it being an error apparent, was rectified by respondents vide order impugned. It is true that opportunity of hearing has not been afforded to petitioner before dispensing with his service vide order impugned but in the facts narrated supra, affording an opportunity of hearing would be nothing but a mere empty formality which would not serve any purpose. Theory of useless formality has been examined by Apex Court in CW 5517/09 {6} Ashok Kumar Sonkar Vs. Union of India (2007(4) SCC 54) ad infra: “26. 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 what so ever 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. 27. 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. 28. 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 CW 5517/09 {7} 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 instant case, when this fact remains un- controverted that vacancies were served for Scheduled Tribe and the petitioner being member of Scheduled Caste could not have been considered for appointment when a member of Scheduled Tribe category was available with respondent and he was given appointment under belief that he was a member of Schedule Tribe, which was factually incorrect; in such circumstances it would have been nothing but a futile exercise to give him opportunity of being heard and this being an error apparent on record having been rectified while passing the order impugned, does not warrant interference by this Court in exercise of powers U/Art.226 of the Constitution. Consequently, writ petition being devoid of merit is hereby dismissed. Stay order dt.04/07/08 stands vacated. (Ajay Rastogi), J. K.Khatri/p.7/ 5517CW08Nov4-Ds.doc