G.S Sistani, J.:— In this petition under Art. 226 of the Constitution of India the petitioner has prayed for quashing of the order dated 30-3-2001, by virtue of which the petitioner was discharged from service and order dated 31-7-2002 by virtue of which the appeal of the petitioner dated 1-6-2002 was rejected.

2. The brief facts as set out in the petition are that the petitioner had passed his senior school examination in the year 1997 from All India Board of Secondary Education, Delhi under the Roll No. 6052. The petitioner was in the bona fide belief that the qualification/examination, which he had passed is recognized by the Government of India for the purpose of government service and, therefore, the certificate issued by the school was presented by the petitioner to the Army Recruiting Authority at the time of his entry into the army service. The petitioner was enrolled in the army on 24-7-2000 and at the time of his recruitment he had placed all certificates of his educational qualifications before the Army Recruiting Authority and only after the same were duly considered upon enquiries, the petitioner was enrolled. The petitioner was sent to the training centre for the initial military training and he was allotted service No. 15480609. While petitioner was undergoing his training at Armoured Corps Centre and School, vide letter dated 8-3-2001 it was pointed out that some recruits were undergoing training, have been enrolled from an unrecognized board of education i.e All India Board of Secondary Education. It was further stated in the letter that the All India Board of Secondary Education had been declared unrecognized by the competent authority for employment under the Central Government. That based on the aforesaid letter dated 8-3-2001 the Army Headquarters vide its letter dated 30-3-2001 ordered the Armoured Corps Centre and School to discharge the petitioner from service. The petitioner was not given any show cause notice and was discharged from service on 10-5-2001. The petitioner preferred an appeal dated 1-6-2002 to the Chief of the army staff under S. 26 of the Army Act 1950. The same was rejected vide order dated 31-7-2002 on the ground that the certificate produced by the petitioner was not from a recognized board.

3. The main thrust of the argument of Ms Mamta Mehra, learned counsel for the petitioner is that the certificates produced by the petitioner before the authorities at the time of recruitment were neither false nor forged. In fact the petitioner was under a bona fide belief that the qualification which the petitioner had passed is recognized by the Government of India for the purpose of Government service, and based on his bona fide belief he had submitted the certificate to the Army recruitment authority at the time of his entry into the Army service. Once the certificate was accepted by the respondents and they recruited the petitioner into service, they were estopped from raising any objection with respect to the certificate and the eligibility of the petitioner. The counsel for the petitioner has also laid stress on the fact that no show cause notice was given to the petitioner to explain his case and thus the respondents have violated the principles of natural justice and on this ground alone the writ petition should be allowed and the order of discharge dated 31-7-2003 should be set aside.

4. Further in support of her submissions, learned counsel for the petitioner has relied upon the cases of Union of India v. Sunil Kumar Rao WP (C) No. 3759/92, Krishan Kumar Rao v. Haryana Warehousing Corpn. reported at (1994) (5) SLR 87, Bhagwati Prasad v. Delhi State Mineral Development Corpn. reported at AIR (1990) Supreme Court 371, and Ex-CT Tara Chand v. Union of India WP (C) No. 5552/2000 and Ex. Constable Babulal v. Union of India LPA No. 147/2002 both the judgments of the Division Bench of the Delhi High Court.

5. It is submitted by the learned counsel for the respondents that since admittedly the petitioner did not fulfil the basic criteria of recruitment hence he has rightly been discharged. It would be useful to reproduce the stand taken by the respondents in their counter affidavit. Para 5 of the counter affidavit reads as under:

“5. It is further stated that the decision of the answering respondents to cancel the recruitment of the all such candidates including the petition is valid and proper. In fact the respondents on 6-11-1998, took a decision imposing a complete prohibition on making any recruitment of candidates whose educational qualification was from an unrecognized board. Since it was found that the recruitment of the petition was contrary to the rules, the authorities rightly after obtaining approval from the Army (Head Quarters) at the New Delhi cancelled the recruitment of the petitioner herein. It is humbly stated and submitted that there is no challenge to the validity or legality of the recruitment rules and thus the same are valid and binding. With regards to the allegations in the writ petition that no show cause notice was issued to the petitioner before cancellation of his recruitment by the respondent authority and that the same amount to violation of principals of natural justice, it is humbly stated that since the army authorities were to take a decision as to whether the board from which the petitioner has qualified his Matriculation Examination was recognised for the purpose of seeking recruitment in the army or not, the authorities rightly did not issue him notice. A decision was to be made solely on the basis of the certificate furnishd by the petitioner and as to whether the same was valid and proper as per the recruitment rules. Having examined the entire issue in its entirely the respondents rightly cancelled the recruitment of petitioner. It is, however, stated and submitted that the petitioner was all along aware of the proceedings and thus the same does not amount to violation of principal of natural principals. With regards to the Appeal filed by the petitioner under S. 26 of the Indian Army Act it is stated that after considering the entire facts the Army authorities rightly rejected his claim.”

6. The counsel for the respondents further submitted that petitioner has neither challenged the recruitment rules nor it is the case of the petitioner that he was eligible for recruitment and has been wrongly discharged from service. The entire case of the petitioner is that since he was under the bona fide belief that his certificate is from a Board which is recognized by the Government of India, therefore, he submitted the certificate and once the same is accepted by respondents, he could not have been removed.

7. We have heard learned counsel for the parties and given our thoughtful consideration to the matter. The facts of the case are undisputed to the extent that the petitioner submitted his secondary school certificate from the All India Board of Secondary Education and it was accepted by the respondents, consequent thereto the petitioner was enrolled in the Army. It is admitted case of the parties that the certificate which was submitted by the petitioner was from an unrecognized Board and thus the recruitment of the petitioner was contrary to rules.

8. In the case of Ravinder Sharma v. State of Punjab, JT (1994) 6 SC 531, the Hon'ble Supreme Court has held that where a person did not possess the requisite qualification, the appointment itself was bad and once the appointment is bad, no question of estoppel would arise. Para 13 of the aforesaid judgment reads as under:

“13. Admittedly, the appellant did not possess this qualification. That being so, the appointment is bad. The Commission recommended to the Government for relaxation of the qualification under Regulation 17 of the Regulations. The Government rejected that recommendation. Where, therefore, the appointment was clearly against Regulation 7, it was liable to be set aside. That being so, no question of estoppel would ever arise. We respectfully agree with the view taken by the High Court.”

9. A similar view has been expressed by the Division Bench of this Court in the case Guardsman Manar Ram v. Chief of the Army Staff, The Commanding Officer, (2003) II AD Delhi 126. Relevant portion of the aforesaid judgment reads as under:

“11. We have given our earnest consideration to the submission of the learned counsel for the appellant. We feel that it is not necessary to go into the question whether or not any misrepresentation was made by the appellant at the time of his enrolment. It is not disputed that the appellant was not a matriculate. Obviously, he did not met the qualification prescribed for the post. In the circumstances, we agree with the submission advanced on behalf of the respondent that, assuming without admitting, the appellant did not misrepresent about his educational qualification at the time of his recruitment and a mistake was made in recruiting him, even then the appellant cannot avail of the principle of estoppel. It seems to us that no vested right came into existence in favour of the appellant by his enrolment as an infantry man, since his entry into service was based on mistaken belief that he was a matriculate and fulfilled the minimum educational qualification required for recruitment in service. We agree with the view of the learned single Judge that as the appellant was not entitled to be enrolled as an infantry man because of lack of prescribed qualification, the mistake could always be corrected by the respondent and the principle of estoppel did not have any application to the instant case.”

10. There can be no dispute on the proposition that the principles of natural justice have not been followed and there is a clear violation of the same, as no show cause notice was issued to the petitioner before passing the order of discharge. There is consistent view that breach of principles of natural justice was in itself treated as prejudice and that no other de facto prejudice needed to be proved. It has also been consistently held that the theory of “useless formality” is an absolute exception. The Supreme Court in the case of S.L Kapoor v. Jagmohan, [1980] 4 SCC 379, while laying strong emphasis that the principles of natural justice should be complied with, observed as under:

“17. Linked with this question is the question whether the failure to observe natural justice does at all matter if the observance of natural justice would have made no difference, the admitted or indisputable facts speaking for themselves. 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 approves the non-observance of natural justice but because courts do not issue futile writs. But it will be a pernicious principle to apply in other situations where conclusions are controversial, however, slightly, and penalties are discretionary.”

11. The above observation is an exception which has been noted in the case of S.L Kapoor (supra). In the case of Aligarh Muslim University v. Mansoor Ali Khan, [2000] 7 SCC 529 while dealing with a case where no notice had been served on the petitioner, the Supreme Court reiterated that the theory of useless formality is an exception but where the facts are admitted and only one conclusion is possible, not following the principles of natural justice would in itself not be a ground for granting a writ. Para 19 of the aforesaid judgment reads as under:

“19. Coming back to the first case of Mr Mansoor Ali Khan, admittedly, no notice under R. 5(8)(i) of the 1969 Rules has been given. There is, therefore, violation of principles of natural justice as notice contemplated in R. 5(8)(i) has not been given. Question as to whether the order deeming that he vacated office is correct or not, will have to be then decided. We shall decide that point under Point 5. We decide accordingly, against Mr Murhsad Hussain Khan and partly in favour of Mr Mansoor Ali Khan under Point 4.

20. This is the crucial point in this case. As already stated under Point 4, in the case of Mr Mansoor Ali Khan, notice calling for an explanation had not been issued under R. 5(8)(i) of the 1969 Rules. Question is whether interference is not called for in the special circumstances of the case.

21. As pointed recently in M.C Mehta v. Union of India there can be certain situations in which an order passed in violation of natural justice need not be set aside under Art. 226 of the Constitution of India. For example, where no prejudice is caused to the person concerned, interference under Art. 226 is not necessary. Similarly, if the quashing of the order which is in breach of natural justice is likely to result in revival of another order which is in itself illegal as in Gadde Venkateswara Rao v. Govt. of A.P, it is not necessary to quash the order merely because of violation of principles of natural justice.

22. In M.C Mehta it was pointed out that at one time, it was held in Ridge v. Baldwin that breach of principles of natural justice was in itself treated as prejudice and that no other ‘de facto’ prejudice needed to be proved. But, since then the rigour of the rule has been relaxed not only in England but also in our country. In S.L Kapoor v. Jagmohan Chinnappa Reddy, J. followed Ridge v. Baldwin and set aside the order of supersession of the New Delhi Metropolitan Committee rejecting the argument that there was no prejudice though notice was not given. The proceedings were quashed on the ground of violation of principles of natural justice. But even in that case certain expectations were laid down to which we shall presently refer.

23. Chinnappa Reddy, J. in S.L Kapoor case laid down two exceptions (at SCC p. 395), namely, if upon admitted or indisputable facts only one conclusion was possible, then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. Of course, this being an exception, great care must be taken in applying this exception.

24. The principle that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. In K.L Tripathi v. State Bank of India Sabyasachi Mukharji, J. (as he then was) also laid down the principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed, quoting Wade's Administrative Law (5th Edn., pp. 472-75), as follows: (SCC p.58, para 31)

“It is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent....... There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the Tribunal is acting, the subject-matter to be dealt with, and so forth.”

Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other things taking the same view have been exhaustively referred to in State Bank of Patiala v. S.K Sharma. In that case, the principle of “prejudice” has been further elaborated. The same principle has been reiterated again in Rajendra Singh v. State of M.P

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. Gamer, Craig, de Smith, Waide, 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 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.”

26. It will be sufficient, for the purpose of the case of Mr Mansoor Ali Khan to show that his case will fall within the exceptions stated by Chinnappa Reddy, J. in S.K Kapoor v. Jagmohan, namely, that on the admitted or indisputable facts, only one view is possible. In that event no prejudice can be said to have been caused to Mr Mansoor Ali Khan though notice has not been issued.”

12. This view has been further fortified by a recent judgment of the Supreme Court in Mohd. Sartaj v. State of U.P, (2006) 2 SCC 315. Relevant portion of the Judgment reads as under:

“19. In the present case, the appellants' case falls with the exception laid down in S.L Kapoor case and other supporting cases, as admittedly, the appellants were not qualified and they did not possess BTC or Hindustani Teacher's Certificate or Junior Teacher's Certificate or Certificate of Teaching or certificate of any other training course recognized by the State Government as equivalent thereto at the time of their initial appointment. In view of the basic lack of qualifications, they could not have been appointed nor their appointment could have been continued. Hence the appellants did not hold any right over the post and therefore no hearing was required before the cancellation of their services...............”

13. In our view the case of the petitioner squarely falls fully within the doctrine of ‘useless formality’ for the reasons: (1) the petitioner has not challenged the recruitment rules; (2) the petitioner has stated in para 3 of the writ petition that he was under the bona fide belief that qualification which the petitioner had passed is recognized by the Government of India; (3) it is noticed that nowhere in the writ petition it has been stated that in fact petitioner was eligible and from a recognized Board/institution; and (4) the petitioner has failed to show that he has suffered some real prejudice as he was not issued a show cause notice. Thus the present case squarely falls in the exception of the ‘useless formality’, as it is a case of ‘admitted and undisputed facts’. It was only for the Government to see if the certificate submitted by the petitioner was from the Board recognized or not. Once it is clear that the petitioner did not possess the eligibility criteria, only one conclusion was possible. Therefore, this Court has no hesitation in holding that even if show cause notice was issued to the petitioner it would have been an absolutely useless formality as only there could be one conclusion. The Court must not issue further writs. Moreover, the petitioner has failed to show as to what actual prejudice has been caused to him for non issuing of the show cause notice. Thus on the admitted and undisputed facts only one view is possible. More so, a bare perusal of the appeal filed by the petitioner to the Chief of the Army Staff under S. 26 of the Army Act, 1950, copy of which has been filed along with the writ petition, shows that in fact the petitioner had taken all the points in it, which have now been taken as grounds in the present writ petition. So it cannot be said that the petitioner was not aware and/or was not in a position to know why he had been discharged.

14. Each case depends upon its own facts. None of the cases cited by the petitioner can come to the aid and rescue of the petitioner, as in the case of Tara Chand v. Union of India (Supra) while allowing the writ petition, it has been noticed by the Court that in fact the qualification in question was not the necessary educational requirement for obtaining employment in the post of constable. In the case of Ex. Const. Tailor Babu Lal v. Union of India (Supra) the petitioner had worked for about five years, however, the petition was allowed as it was clear from the notification dated 21-7-2001, recognizing ‘Prathama’ examination conducted by the Hindi Sahitya Sammelan, Allahabad (Hindi University), to treat the ‘Prathama’ as a matriculation for the purpose of employment under the Central Government for the purpose for which the desired qualification is merely a pass in matriculation. The prime consideration before the Court in the case of Krishan Kumar Rao v. Haryana Warehousing Corpn. (Supra) was that it would not be fair to throw the petitioner out of employment after a lapse of six (6) years and enquiry proceedings were quashed. And in the case of Union of India v. Sunil Kumar (Supra) the Supreme Court directed the respondents to treat the petitioner continuous in service as Security Assistants subject to a rider that they shall in future attain the qualification of matriculation from a source recognized by the department or a qualification higher than matriculation, within eighteen months.

15. The petitioner in the case in had joined as a recruit only and has hardly put in any amount of service. To permit a person to continue in service, having the knowledge that he does not have the basis qualification, merely because at the time of recruitment the authorities overlooked the eligibility criteria, cannot be a ground to continue in service.

16. For the reasons aforestated, we find no merit in this petition and the same is dismissed, while leaving the parties to bear their own costs.