M. L. JAIN, J. - (1.) THESE writ petitions are directed against the order of the Rajasthan Civil Services Appellate Tribunal dated 17th July, 1976, which shall be disposed of by this common order. The petitioners were third grade teachers. The Inspector of Schools, Jaipur, prepared a seniority list of third grade teachers as it stood on 1st September, 1961, in accordance with the Government of Rajas-than circular dated 15th January, 1966 In this seniority list, the petitioners were placed at number 1016, 1030 and 1024. On the strenghth of this placement, they come to be promoted as grade II teacher on 31st October, 1972. But their seniority was altered on 10th May, 1976 and the petitioners were brought down steeply to Nos. 2975, 2533 and 3267 respectively. As a consequence, they were also reverted to grade III. The petitioners appealed against this alteration in the seniority and reversion to the Tribunal mainly on the grounds that alteration has taken place without notice in violation of principles of natural justice and without recording any reasons. The contention of the respondents was that they were placed calier at a particular number on the asumption that they had attained intermediate qualification on 31st August, 1961. But later on, when it was discovered that in fact they passed the intermediate examination in a supplementary chance the result of which was declared on 9th September, 1951, and consequently a rectification had to be made. The learned tribunal rejected the appeals. Hence, these writ petitions.
(2.) THE learned counsel for the petitioners raised entirely a new contention before this court. What he now convasses is that according to sections 3 the Rajasthan Civil Services Appellate Tribunal Act, 1976, the tribunal was to consist of a chairman who shall be a super-tiem scale officer of the I. S. S. and at least two other members one of when shall be a member of the Rajasthan Higher Judicial Service. At the relevant time that is at the time of hearing and disposing of the appeal one of the members, namely, the judicial member, Shri G. K. Sharma had demitted office and there were only two members who could not constitute the Tribunal. THE learned counsel agrees that in virtue of section 5 (2), two members of the Tribunal can hear and dispose of the matter before in, but his argument is that there was no tribunal in existence on the relevant date as envisaged by the said section 3. Reading as I do, the provisions of section 3, I find that the Tribunal once properly constituted continues to exist inspite of the subsequent vacancies and it cannot be said that whenever any member or even Chairman has ceased to hold office, the Tribunal has ceased to exist even though the Act should have but has not specifically so provided. THE State Government notification dated 21th June, 1976, shows that it constituted the Tribunal consisting of three members in accordance with section 3. THE initial constitution therefore unassailable and the subsequent vacancies if remaining unfilled cannot affect was its coostitution or the continuance and it can dispose of all apeals relating to service matters as long as two members are there to do so. This view is supported by Collefor of Etha vs. Rani Gulab Kanwar (1 ). Section 101 of (he Government of India Act provided that at least one third of the High Court shall be barristers. It was held that if on account of certain reasons a vacancy occurs, the other judges of the High Court shall be deemed incompetent to carry on the work of the High Court till the vacancy has been filled up. Similarly when the office of the Chief Justice of Patna High Court fell vacant on account of the lamentable death of Sir Courtacy-Terrall, it was held in Emperor vs. Sohrai Koeri (2) that it could not be said that till the vacancy is filled, there no validly constituted High Court. THE main thrust of the attack even if permitted at this stage, thus miserably fails. The second ground of attack against the order of the Tribunal was that the learned Tribunal has erred in not upholding the objection of the Tribunal that the alteration in seniority was made after 8 years without notice to the petitioners. The learned counsel cited Krishna Gopal vs. Municipal Board (3 ). He also cited a decision of the Supreme Court reported in state of Mysore vs. Maneba Gowda (4 ). Upon the basis of these decisions if it urged it was necessary that the petitioner should have been given an opportunity to show cause why and what alternation in the final seniority list was going to be made. By not doing so, the principles of natural justice have been violated making the impugned alteration illegal and even non-est. The learned counsel for the state met this argument on two grounds. Firstly, by referring to Sahoodul Hague vs. Registrar Co-operative Societies. (5) and Board of Mining Examination vs. Ramjee (6) which show that where the facts are glaring, giving of any opportunity could serve no useful purpose. He urged that if a show cause notice were given, the petitioners could have said nothing, Secondly, as per the amended Article 226, no writ petition can succeed unless substantial failure of justice was alleged. This was a very simple matter based upon undisputed facts. The petitioners have themselves admitted that they had not passed intermediate examinations on 3ist August, 1961 and therefore, no body knew better than they did that there has been a mistake in placing them at higher positions. Therefore, there is no scope for complaining that there has been any substantial failure of justice or any substancial injury to the petitioners by allow ing the seniority without notice to them. I have considered over this aspect of the matter. In Wencho Gauda's case (4), the Supreme Court did purport to observe that the point is not whether there was any acceptable explanation but whether any opportunity has been given for explanation against any adverse decision being taken. It further observed, "we cannot accept the doctrine of "presumptive knowledge" or that of "purposeless inquiry" as their acceptance will be subversive of the principle of "reasonable opportunity. " But then these observations were made while explaining the constitutional obligation of reasonable opportonity to be extended under Article 311. Moreover, since the 42nd Amendment the jurisdiction under Article 226, can of the Constitution be invoked only if the petitioners could show that the illegality that is want of notice, has resulted in substantial failure of justice which there is none here. Further the rule which I adopted in Nemichand vs. State of Rajasthan (7) in this regard applies to* this case with full force, I noted, "the rules of natural justice depend to a great extent on the facts and circumstances of the case, framework of the relevant law and the constitution of the person or authority administering it. 'they cannot be stretched too far. Only too often, the people who have done wrong, seek to invoke the rules of natural justice so as to avoid the consequences', see In re H. K. (8) and R. V. Home Secretary' (9 ). " It is further fruitful to reproduce the comments of S. A. do Smith in his "judicial Review of Administrative Action" 3rd ed. p. 170 - "a prior hearing may be better than a subsequent hearing but a subsequent hearing is better than no hearing at all; and in some cases the courts have held that statutory provision for an administrative appeal or even full judicial review on the merits are sufficient to negative the existence of any implied duty to hear before the original decision is made. " The statutory appeal provided in the instant cases rectifies the branch of natural justice in the first instance. I, therefore, agree with the learned Government Advocate and reject this new argument of the petitioners. The learned counsel for the petitioners, then submitted that they have been discriminated against as there were several other teachers who had passed the intermedials examination later than 1st September, 1961, and yet were assigned higher seniority. May be so, but then this point should have been raised before the Tribunal where it could be examined in detail. The learned Government Advocate submitted that the respondents cannot be taken by surprise. He also maintained there was not only one criteria for fixing of the seniority and nothing could be urged in this regard unless the respondents had a chance to explain the seniority of other persons fixed higher than that of the petitioners, I agree and reject this contention also. The learned counsel then drew my attention to the Rajasthan Educational Subordinate Service Rules, 1971 and urged that these rules came into force in 1971 and seniority was to be fixed in accordance with Rule 29. According to this rule seniority should have been fixed or revised on the basis of substantive appoinments. The learned Government Advocate ha3 correctly repelled that this rule cannot be applied to the persons whose seniority stood determined before the initial constitution of the service. This argument, therefore, cannot be sustained.
(3.) THE result is that these writ petitions have no force and are here by dismissed. THEre shall, however, be no order as to costs. .;