IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8950 of 2010 1. LALJI SINGH S/O SRI SURUD SINGH R/O VILL.- GARAHA, P.S. UDWANT NAGAR, IN THE DISTRICT OF BHOJPUR 2. BINOD KUMAR SINGH S/O SRI RAMESHWAR SINGH R/O VILL.- JAITPUR, P.S. UDWANT NAGAR IN THE DISTRICT OF BHOJPUR Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA 2. THE DIRECTOR, PRIMARY EDUCATION, GOVT. OF BIHAR, PATNA 3. THE DISTRICT MAGISTRATE-CUM-COLLECTOR, BHOJPUR 4. THE DISTRICT SUPERINTENDENT OF EDUCATION, BHOJPUR 5. THE BLOCK DEVELOPMENT OFFICER, UDWANT NAGAR BLOCK IN THE DISTRICT OF BHOJPUR 6. THE GRAM PANCHAYAT, SONPURA UNDER UDWANT NAGAR BLOCK, IN THE DISTRICT OF BHOJPUR THROUGH PANCHAYAT SECRETARY 7. THE PANCHAYAT SECRETARY, SONPURA GRAM PANCHAYAT UNDER UDWANT NAGAR BLOCK, IN THE DISTRICT OF BHOJPUR 8. THE MUKHIYA, SONPURA GRAM PANCHAYAT UNDER UDWANT NAGAR BLOCK IN THE DISTRICT OF BHOJPUR 9. THE DISTRICT TEACHERS EMPLOYMENT APPELLATE AUTHORITY, BHOJPUR THROUGH ITS SECRETARY 10. THE CHAIRMAN, DISTRICT TEACHERS EMPLOYMENT APPELLATE AUTHORITY, BHOJPUR AT ARRAH ----------- For the Petitioner : Mr. Sunil Kumar For the State : Mr. Subhash Pd.Singh 2 16.7.2010 By this writ application two petitioners have challenged the order dated 6.5.2010 passed by Teachers Employment Appellate Authority, Bhojpur in Appeal Case no. 10 of 2009.By the said order the tribunal has held that initial appointment of petitioners as Shiksha Mitra in the year 2003 was void by reasons of two petitioners being minors at that time . The ground for challenge before this Court is that the petitioners had made no misrepresentation and as would be evident - 2 - from their own applications, as contained in Annexure 2 series, the two petitioners have themselves shown to be minors at the time when they made applications. It is not in dispute that they were minors even though they were selected and appointed . Thus, there is no concealment and their appointments could not be held as void. It is next contended that in view of notification providing for appointment of Shiksha Mitra, there is only upper age limit of 36 years. Thus there being no lower age limit even a child with matriculation qualification should have been appointed as Shiksha Mitra . The third contention is that the petitioners having been appointed in 2003,their appointments as Shiksha Mitra having been twice renewed and then they having been absorbed as Panchayat Teachers, their appointments could not be challenged in view of judgment of this Court in the case of Alok Kumar –v- State of Bihar since reported in 2009(Vol-2)PLJR 929 and lastly it was contended that even though their appointments were impugned, they were not made party and not heard in the matter. Having heard the parties, I am not inclined to interfere in the matter as the writ petition is fit to be dismissed. Coming to the first contention that the petitioners had not concealed any fact. All I can say is that the petitioners were minors admittedly and undisputedly when they made applications. The appointments, as per notification itself are contractual .Petitioners were required to enter into contract of employment for a period of eleven months. Petitioners being minors, in view of the provisions of the Contract Act they have no capacity to contract. That is the matter that - 3 - cannot be disputed. That being so, their applications cannot be entertained at all. They could not have signed the applications seeking employment on their own being minors. Thus, whether they concealed this fact is totally irrelevant. This submission , therefore, has no leg to stand. Next it is submitted that under notification providing for appointment of Shiksha Mitra, there is only mention of upper age limit but no mention of minimum age. For the reasons , as discussed, the answer is self evident. The employment being contractual, a person must have the capacity to contract apart from other disability of capacity to contract. The first disability is of a person being minor. Thus, it is inherent in the terms of appointment that a person, who is minor cannot apply much less be considered. The second submission has also no leg to stand. Coming to the third issue in relation to the judgment of this Court in the case of Alok kumar (supra), in my view, the same would not apply and would not come in age of the petitioners for two reasons. Firstly, the appointment of petitioners was void ab initio. Petitioners being minors, their applications and their selections were void as distinct from voidable. Had it been a case where petitioners were otherwise qualified and right of the objector was otherwise defeated, then their appointments could be assailed by the objector and only upon such challenge petitioners appointment be held to be bad. If it was not challenged then the petitioners would continue . That would be a voidable appointment. A void appointment is an appointment, which has - 4 - no existence in eye of law. The minor’s appointment would be a void ab initio appointment. Thus, not being voidable appointment, the principle laid down in the case of Alok kumar (Supra) would not apply. The second reason for not applying the said decision will be discussed when we come to the last issue ,as raised by the petitioners. The last issue being of violation of principle of natural justice. Petitioners are right in contending that no order could be passed as adverse to them without they being granted opportunity of hearing. The order, so passed, behind their back would ordinarily be void and unenforceable but the facts of the case being what they are. A hearing is not at all necessary . On the fact that the petitioners were admittedly and undisputedly minors on the date when they made applications and when they were initially appointed would lead to their appointments being null and void. There is no other option available. In this connection I may notice the judgment of the Apex Court in the case of S.L.Kapoor –v- Jagmohan and orhers sine reported in AIR 1981 SC 136 in which decision various facets of principle of natural justice have been discussed at length. Their lordships in para 24 of the report have held as under: “ Where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs.” There is yet another reason for not interfering .If the order - 5 - is set aside it would bring right to an order by which appointment has been illegally made. It would give right illegal appointment. It is well established principle that no Court would interfere in the matter where interference would give right to an illegality. Court do not perpetuate illegality. In such a situation, two options are available to the Court either they interfere and set aside both the orders i.e. the order of appointment as well as the order of tribunal or they do not interfere at all. I chose later as the effect in either case would be the same . Thus, the writ petition merits no consideration and dismissed. singh (Navaniti Prasad Singh,J)