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MAHENDRA MISHRA versus U.P. NIDESHAK (PRASHASAN) RAJYA KRISHISHI UTPADAN MANDI

High Court of Judicature at Allahabad

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Mahendra Mishra v. U.P. Nideshak (Prashasan) Rajya Krishishi Utpadan Mandi - WRIT - A No. 1648 of 1986 [2003] RD-AH 540 (18 December 2003)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc. Writ Petition No. 1648 of 1986.

Mahendra Mishra .................................................... Petitioner

Versus

Up Nideshak (Prashasan), Rajya Krishi Utpadan

Mandi Parishad, Allahabad and another .........................  Respondents.

Hon'ble R.B. Misra, J.

Heard Sri L.N. Pandey, learned Counsel for the petitioner and Sri B. D. Mandhyan, learned Counsel for the respondents and learned Standing Counsel.

(1) The writ petition was decided on 14.02.2003 in absence of learned counsel for the respondents as mentioned in the order dated 14.02.2003. An application for recalling the order dated 14.2.2003 on behalf of learned counsel for the respondent/ Rajya Krishi Utpadan Mandi Parishad, Sri B. D. Mandhyan has been filed enclosing the cause list of 14.02.2003 giving explanation and justifying the stand how he could not reach when the writ petition was decided on 14.2.2003. Counter affidavit to this recall application has also been filed by Sri L. N. Pandey, learned counsel for the petitioner. The cause shown in the recall application is sufficient, therefore, the Civil Misc. Application No.99813 of 2003 is allowed and the order dated 14.02.2003 passed by this Court is recalled and the writ petition is heard on the merits of the case.

(2) In this writ petition prayer has been made to quash the order dated 18.10.1985 (Annexure-6 to the writ petition), whereby the petitioner's service has been terminated after payment of one month advanced salary.

(3) The brief facts necessary for adjudication of the present writ petition are that Krishni Utpadan Mandi Samiti of Ballia had deployed the petitioner on a sanctioned post of Mali and sweeper in the office of respondent no.2 i.e. Krishi Utpadan Mandi Samiti Chit Bara Gaon, Ballia on 01.12.1984 on daily basis and seniority list was also maintained out of the available daily wager employees. The petitioner was deployed to work as a Chaukidar on 01.02.1983 on daily wage and he continued to work till 10.8.1985. The necessity of work of mali was essential to maintain the tree and plants in the Mandi Samiti area office, therefore, on the recommendation of the Secretary to the President of the Mandi Parishad, the petitioner was again given appointment as a mali. The petitioner was getting salary in the grade of Rs. 305-5-330-EB-6-360-EB-6-390 per month and subsequently the petitioner took the charge as a mali on 10.8.1985 and has been discharging the duty since then. The petitioner's service was terminated from the post of mali on 18.10.1985 by an order which prima facie appears to be order simplicitor, however, the petitioner had submitted that the post was still existing and there was no complaint at all against the petitioner and without affording opportunity to the petitioner and in derogation to the principles of natural justice, the petitioner's service was terminated. According to the petitioner he was appointed after being selected through the due process of selection and the petitioner's service was terminated arbitrarily.  

(4) Whereas, contents of paragraph 7 of counter affidavit reveals that the service of the petitioner has been terminated because the appointment of petitioner was not by observing the rules and bye laws, (first amendment) 1984, of the Mandi Samiti which required that any appointment to the post of class IV employees could be through the selection by the selection committee consisting of three members i.e. representative of the Director of the Krishi Utpadan Mandi Parishad, as Chairman, the Chairman of the concerned Mandi Samiti as member and the Secretary of the concerned Mandi Samiti as a member. The selection committee thereafter was to forward the name of the selected candidate to the Director of Mandi Parishad for approval and then only the person could be given appointment. A photostat copy of the covering letter dated 21.5.1985 with the first amendments of Bye Laws 1984 has been filed as Annexure C.A.-2. Consequent upon the said letter dated 21.5.1985, the Director sent a circular to the Regional Deputy Directors Administration indicating therein that all such adhoc appointments made after 30.6.1985 which were not in confirmity with the rules and bye laws are immediately to be cancelled. A photostat copy of the circular dated 19.8.1985 has been filed as Annexure C.A.-3 to the counter affidavit.

(5) The contents of para-7 of counter affidavit above had been denied in the para 5 of the rejoinder affidavit by saying that irregularity or deficiency was to be mentioned in the order of termination or his service could only be terminated by observing due procedure of law as the petitioner was appointed by following the due proper procedure of selection.

(6) Learned counsel for the respondents has also filed written note, according to which there were procedural deficiencies, irregularities and illegalities namely neither any advertisement was made, nor name of candidate was invited from the employment exchange, neither selection committee was ever constituted, nor selection process had ever commended, no approval of Director of Mandi Parishad was obtained, as such the appointment of the petitioner was absolutely illegal in violation of provisions of U.P. Agriculture Produce Market Committees (Centralised) Service Regulations, 1984 (in short called as Regulations, 1984), which came into effect on 1.8.1984. According to the respondents the petitioner has no right to the post, more so, when there was circular issued by the Director, Mandi Parishad dated 21.5.1985 indicating that persons appointed dehors the regulations after 30.6.1985, were to be discontinued.

(7) To deal the issue involved in the present case it would be necessary to consider very important aspects in the interest of justice, rule of law and in the great interest of public, when any particular process or selection or appointment has suffered from legal and procedural improprieties, deficiencies, irregularities, illegalities, foul-play, corruption, dubious, malpractice, fraud, forgery, falsity, scandal, misrepresentation, malafide, favouritism, non-availability of post/ vacancy, illegal and erroneous constitution of selection committee, selection being bad for lack of proper sanction of competent authority or for lack of competency of appointing authority and the said selection is defective for statutory procedural infirmities e.g. for non-publishing advertisement or not inviting names from employment exchange, selection made without interview, fake and ghost interviews, tempering with records, fabricating documents or non-observance of reservation policy, anomaly in preparation of select list, unauthorised appointments made beyond expiry of the select list, taking benefit of manipulation in date of birth and production of false certificates/degree, lack of eligibility criteria, deficiency in qualification, admission to a course or benefits/ gains in any form procured by foul means,  non-observance of other provisions or requirements of relevant Act, rules, regulations, bye-laws, norms, government orders, official memorandum, legal established pattern, (as some examples out of many more variety of defects) then selected beneficiary candidate as an outcome of such defective selection or spoiled system if appointed and has started working, acquiring legal right to the post , in such circumstances the following aspects shall be necessary for consideration.

(A) Whether the such beneficiary/ candidate is entitled for opportunity of hearing in consonance to the principles of natural justice before termination of his service in the above circumstances?  

(B) Whether the opportunity of hearing in consonance to the principle of natural justice shall be necessary to be given to the beneficiary candidate before termination of his service and to what extent? When suo-moto or on general or specific complaint made on behalf candidates participating in the selection or appointment or gain in question or on the basis of preliminary inquiry conducted for and on behalf of the appointing authority or on the basis of some audit report or inspection report, the State Government or competent authority or employer thereafter has made itself or got conducted a detailed inquiry through C.B.I. or an independent agency or Vigilance department or Committee, taking into consideration all the facts, circumstances, records, evidences and witnesses and on the basis of finding arrived at out of such inquiry or probe, the selection or appointment or gain in question is found to be defective on one or more out of above mentioned drawbacks/ grounds?

(i) when beneficiary candidate was already associated and heard in the inquiry or probe;

(ii)  when beneficiary candidate was not associated and not heard in the inquiry or probe at all;

(iii) when beneficiary candidate was provided opportunity of hearing in reference to the inquiry report or probe subsequently but before termination.

(C) Whether for one or many of the above mentioned drawbacks the said selection or appointment or gain is found defective and the termination of the service of the beneficiary candidate is set aside for not providing opportunity of hearing and non-observance of principles of natural justice before termination of his service, in those circumstances;

(i) Whether reinstatement of beneficiary candidate in service with consequential benefits shall be a usual phenomena? Or

(ii) Whether on reinstatement of beneficiary candidate in service, the above mentioned defects and drawbacks inherited in the selection or appointment or gain in question are to be ignored or overlooked or shall be redundant or shall be automatically deemed to have been rectified? Or;

(iii) Whether keeping in view the seriousness of defects and drawbacks occurred in the selection or appointment or gain in question, the Court at its pleasure in the interest of justice and to uphold the rule of law, may allow fresh inquiry or probe to be made allowing participation of the beneficiary candidate by providing opportunity of hearing in consonance to the principles of natural justice within a stipulated time?

(D) Whether for reinstatement of the beneficiary candidate the sympathy may be shown for his bonafide, or for no fault on his part?

(E) Whether the authorities or officials instrumental, involved in scandal and defective selection or appointment or gain are to be dealt with under law or their misdeeds and wrong on their parts are to be ignored?

(F) Whether providing of opportunity of hearing in consonance to the principle of natural justice is farce or statutory or mandatory or directory or requirement or ingredient or legal formalities only to be observed in all cases in respect of termination of beneficiary candidate as an outcome of defective selection or appointment or gain?

(G) Whether by different modes other than conventional modes, on adjudication over the pleadings of the parties any selection or appointment of gain is declared or proved before the Court/ Tribunal to have been suffering from inherent defects then consequence of upsetting the termination of the beneficiary candidate on the ground of non-observance of principle of natural justice would be to hear a fresh in terms of such declaration?

(H) When no inquiry conducted and in respect of selection or appointment or gain having acknowledged by Court/ Tribunal to have suffering from inherent defects as indicated in paragraph 7 and beneficiary candidate was not provided opportunity of hearing before termination?

(I) Whether providing of opportunity of hearing in consonance to the principle of natural justice shall be necessary when the defects, deficiencies, fraud or forgery in cases of illegal admissions, selection or appointment or in matters of benefits/ gains in any form derived or based on the documents said to be the verdict of the Court or in the name of institutions/ institutional head/ constitutional dignitaries?

(8) There are two principles of Natural Justice, which are universally recognised to be fundamental to the dispensation of justice. These are --

(i) Nemo Judex in causa sua literally meaning--' No one shall be a judge in his own cause'. In other words, the person deciding the matter must not have anything like personal interest in the case; and

(ii) Audi alteram partem literally meaning- 'Hear the other side' i.e., the person(s) likely to be affected should be heard before any adverse action is taken.

Lord Denning has summed up these rules as "impartiality" and "fairness" in Khanda v. Government of Malaya (1962) AC 322.

In Administrative Law, Rules of natural justice are foundational and fundamental and law is now well settled that the principles of natural justice are part of the legal and judicial procedures. [ 1993 AIR SCW 2400 (para 9) ( R.L. Sharma v. Managing Committee, Dr. Hari Ram (co-ed) H.S. School.)]

(9) The power of dismissal could not be exercised without giving a reasonable opportunity of being heard and without observing the principles of natural justice. Natural justice is not vague or non-existent as observed in 1964 A.C. 40= (1963) 2 All. E. R. 66 (Ridge v. Baldwin) "In modern times, opinions have sometimes been expressed to the effect that natural justice is so vague as to be practically meaningless. But, I would regard this tainted by the perenniual fallacy because something cannot be cut and dry or nicely weighed or measured, therefore, it does not exist." The idea of negligence is equally vague but everybody knows it is. Natural Justice is much more specific and definite.

(10) One of the fundamental principles of natural justice is 'Audi alteram partem', i.e., no man should be condemned unheard. In Dr. Bentley's case, i.e. R. v. University of Cambridge, (1723) 1 Str. 757, the King's Bench traced the history of principles of natural justice and observed that the first hearing in human history was given in the Garden of Eden and even "God himself did not pass sentence upon Adam, before he was called upon to make his defence".

(11) In Painter v. Liverpool Oil Gas Light Co., (1836) 3-A and E 433, it was held that " a party is not to suffer in person or in purse without an opportunity of being heard".

(12) Even, if there is no provision in the statute about giving of notice, if the order in question adversely affects the rights of an individual, the notice must be given. (Vide East India Commercial Co. v. Collector of Customs, AIR 1962 SC 1893). The notice must be clear, specific and unambiguous and the charges should not be vague and uncertain. (Vide Management of the N.R. Co-operative Credit Society Ltd. v. Industrial Tribunal, AIR 1967 SC 1182). The object of notice is to give an opportunity to the individual concerned to present his case and therefore, if the party is aware of the charges or allegations, a formal defect would not invalidate the notice, unless, the prejudice is caused to the individual. (Vide Bhagwan Datta Shastri v. Ram Ratanji Gupta, AIR 1960 SC 200 and Fazal Bhai Dhala v. Custodian General, Evacuee Property, AIR 1961 SC 1397). The party should also be given a reasonable time to file reply to the charges. (Vide State of J. and K. v. Haji Wali Mohammad and ors., AIR 1972 SC 2538).

(13) Where a notice regarding one charge has been given, the person cannot be punished for a different charge for which no notice or opportunity of being heard was given to him. [Vide Annamuthado v. Oilfields Workers, (1961) 3 All ER 621 and Govindsinh v. G. Subbarao, (1970) 1 GLR 89].

(14) It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifest and undoubtedly be seen to be done. [Lord Hewart C.J.in -R. v. Sussex JJ exparte McCarthy, (1924)1 KB 256]

(15) While great urgency may rightly limit such opportunity timeously, perhaps, severely, there can never be a denial of that opportunity if the principles of natural justice are applicable. [Durayappah v. Fernando, (1967) 2 AC 337]

(16) In respect of balance to be struck between urgency and giving opportunity it to be noted that in Wiseman v. Borneman, [(1967) 3 All ER 1945], there was a hint of the competitive claims of hurry and hearing. Lord Reid said : 'even where the decision has to be reached by a body acting judicially, there must be a balance between the need for expedition and the need to give full opportunity to the defendant to see material against him'.

(17) A similar view was reiterated in State of Orissa v. Dr. (Miss.) Binapani Dei, AIR 1967 SC 1269.

(18) Natural justice is a great humanising principle intended to invest law with fairness and secure justice. The sole of natural justice is fair play in action in view of Maneka Gandhi v. Union of India, AIR 1978 SC 597=(1978) 2 SCR 621, where the passport of the petitioner was impounded by the Government of India "in public interest", without according an opportunity of hearing to the petitioner before taking the impugned action, therefore, the order was found to be violative of the principles of natural justice.

(19) In Malik Ram v. State of Rajasthan, AIR 1961 SC 1575, the scope of hearing was confined by the enquiry officer only to the hearing of arguments and rejected the application of the appellant to lead oral or documentary evidence. The Supreme Court disapproved it observing that the delinquent should have been given an opportunity to lead evidence.

(20) In Bishambhar Nath Kohli v. State of U.P., AIR 1966 SC 573, in revision proceedings, the Custodian General accepted new evidence produced by one party, but no opportunity was given to the other side to meet the same. The Supreme Court held that the order stood vitiated for non-observance of the principles of natural justice.

(21) In State of Kerala v. K.T. Shaduli Grocery Dealer etc., AIR 1977 SC 1627, right of cross-examination of witnesses was held to be necessary.

(22) The settled legal proposition, remain that principles of natural justice are inbuilt in the statutory rules and require observance unless the same stand excluded by the rules itself. The adjudicating authority must be impartial and without any interest or bias of any type; where the Adjudication Authority is exercising judicial or quasi-judicial power, the order must be made by that authority and that power cannot be delegated or sub-delegated to any other officer; the adjudicating authority must give full opportunity to the affected person to produce all the relevant evidence in support of his case; the adjudicating authority must disclose all material placed before it in the course of the proceedings and cannot utilize any  material unless the opportunity is given to the party against whom it is sought to be utilized; the adjudicating authority must give an opportunity to the party concerned to rebut the evidence and material placed by the other side; and in disciplinary proceedings under Article 311 of the Constitution  against the civil servants and in cases of domestic inquiries by employers against their employees under the factory laws.

(23) The principle of natural justice had to be considered in the context of the fact-situation and in view of the scheme and the rules applicable in a particular case. If an employee, remains absent for more than a stipulated period and statutory rules or standing orders provide for automatic termination of his services in such an eventuality, without holding inquiry or giving opportunity of being heard, observance of principle of natural justice is mandatory proposition. The Supreme Court has categorically held in a catena of decisions that a statutory rule is void if it stipulates for automatic termination of services of an absenting employee after expiry of a stipulated period. [Vide Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer, Labour Court and ors., (1990)3 SCC 682; Gujarat State Road Transport Corporation and Anr. V. Mulu Amra, AIR 1994 SC 112; Scooters India Ltd. v. Vijay E.V. Eldred, (1998) 6 SCC 549; Uptron India Ltd. v. Smt. Shammi Bhan, AIR 1998 SC 1681 and Scooters India Ltd. v. Mohammad Yaqub and Anr., (2001) 1 SCC 61].

(24) However, there may be circumstances where absence from duty, at the start, may not be a misconduct but absence of the employee stretches abnormally giving rise to a presumption that the employee is no more interested to continue in service or has voluntarily abandoned the job. Whether in such a case, before termination, a notice or inquiry is required? In M/s. Jeewan Lal/(1929) Ltd. Calcutta v. Its Workmen, AIR 1961 SC 1567 and Shahoordul Haque v. The Registrar, Co-operative Societies, Bihar and another, AIR 1974 SC 1890, the Supreme Court held that in such a case, "long unauthorized absence may reasonably give rise to an inference that such service is intended to be abandoned by the employee." Being a case of abandonment of service, no notice/ inquiry is required.

(25) Similar view has been reiterated by the Supreme Court in Barckingham and Carnotic Co. Ltd. v. Venkatiah and Anr., AIR 1964 SC 1272 and S.T. Lad and ors. V. Chemicals and Fibres India Ltd., AIR 1979 SC 582.

(26) In Syndicate Bank v. General Secy., Syndicate Bank Staff Association and Anr., AIR 2000 SC 2198 and Aligarh Muslim University and ors. V. Mansoor Ali Khan, AIR 2000 SC 2783, the Supreme Court ruled that if a person is absent beyond the prescribed period for which leave could be granted, he should be treated to have resigned from service. In such a case, there is no need to hold an enquiry or observe principles of natural justice as it would amount to useless formality.

(27) In Chairman, Board of Mining Examination and Chief Inspector of Mines and Anr. V. Ramjee, AIR 1977 SC 965, the Supreme Court observed as under:-

" Natural justice is not unruly horse, no lurking land line, nor a judicial cure all. If fairness is shown by the decision/maker to the man proceeded against, the form, features and fundamentals of such essential process properly being conditioned by facts and circumstances of each situations, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt- that is the conscience of the matter."

(28) The Supreme Court has reiterated time and again that the doctrine of natural justice cannot be imprisoned within the strait-jacket of rigid formula and its application would depend upon the scheme and policy of the statute and relevant circumstances involved in a particular case. [Vide Union of India v. P.K. Roy and Ors., AIR 1968 SC 850; Channabasappa Basappa Happali Vs. State of Mysore, AIR 1972 SC 32 and Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pandey and Ors., (2001) 1 SCC 182].

(29) In S.K. Kapoor v. Jag Mohan, AIR 1981 SC 136, the Supreme Court has observed that where on admitted or undisputed fact, only on conclusion is possible and under the law only one penalty is permissible, the Court may not issue the writ to compel the observance of the principles of natural justice as it would amount to issuing a futile writ. Similarly, in State of U.P. v. O.P. Gupta, AIR 1970 SC 679, the Supreme Court has observed, that the Courts have to see whether non-observance of any of the principles enshrined in statutory rules or principles of natural justice have resulted in deflecting the course of justice. Thus, it can be held that even if in a given case, there has been some deviation from the principles of natural justice but which has not resulted in grave injustice or has not prejudiced the cause of the delinquent, the Court is not bound to interfere. This Court does not function as a Court of Appeal over the findings of the Disciplinary Authority, rather it has limited power of judicial review to the departmental proceedings in which appreciation of evidence is not permissible. The Court can review only to correct the error of law or fundamental procedural requirements which lead to manifest injustice or Court can interfere with the impugned order if the same has been passed in flagrant violation of the principles of natural justice. (Vide Rae Bareli Kshetriya Gramin Bank v. Bhola Nath Singhand ors., AIR 1997 SC 1908).

(30) In Syndicate Bank (supra), the Supreme Court dealt with a similar case and held that where a show cause notice is served upon the delinquent employee and the employee chooses not to respond to the said notice even after expiry of the notice-period, the employer has a right to presume that the employee does not want to say anything and he is no more interested in the services of the employer. The Court observed as under:-

" It is no point laying strength on the principles of natural justice without understanding their scope of real manner. There are two essential elements of natural justice which are: (a) no man shall be a Judge in his own cause; and (b) no man shall be condemned either civilly or criminally without being afforded an opportunity of being heard in answer to the charge made against him. In course of time by various judicial pronouncements .... the  Bank had followed the requirement (of law)..... Under these circumstances, it was not necessary for the Bank to hold an enquiry before passing the order. An enquiry would have been necessary if Dayananda had submitted his explanation which was not acceptable to the Bank or contend that he did report for duty but was not allowed to join by the Bank. Nothing of the like has happened here. Assuming for a moment that enquiry was initiated, evidence led before the Tribunal clearly showed that notice was given to Dayananda and it is he who defaulted and offered no explanation for his absence from duty and did not report on duty within thirty days of the notice...... It is undoubtedly relevant on the principles of natural justice by the Tribunal and even by the High Court has certainly led to a miscarriage of justice as far as the Bank is concerned. The conduct of Dayananda, as an employee of the Bank, had been outstanding."

(31) In Punjab and Sindh Bank and ors. V. Sakattar Singh, (2001) 1 SCC 214, the Supreme Court impliedly approved the law laid in Syndicate Bank (supra) and held that if the employee has no intention to join duty and does not turn up inspite of notice, nor gives an explanation for his absence satisfying the management that he has not taken up another employment or avocation and that he has no intention of joining the duty, the employee will be deemed to have retired from service on expiry of the time fixed in the notice. If the employee furnishes satisfactory explanation and comes after expiry of the notice, he may be allowed to work without prejudice to the right of the employer to take action against him under the law. In such a case, termination of service will not amount to punishment but would be a discharge simplicitor from the service. The Court observed as under:-

"Thus, there is no punishment for misconduct but only to notice the realities of the situation resulting from long absence of employee from work with no satisfactory explanation thereto. The principles of natural justice cannot be examined in vacuum without reference to the fact-situation arising in the case...... It also realises, the futility of continuation with a situation when no employee, without appropriate intimation to the Management, is playing trount. If the respondents had submitted an explanation regarding his unauthorised absence or placed any material before the Court that he did report for duty but was not allowed to join the duty, enquiry may have been initiated but not otherwise."

(32) In Dharmarathmakara Raibahadur Arcot Ramswamy Mudaliar Educational Institution v. Educational Appellate Tribunal and Anr.,(1997) 7 SCC 332, the Supreme Court observed as under:--

"Giving an opportunity or an enquiry is a check and balanced concept that no one's right be taken away without giving him/her opportunity or when enquiry in a given case or where the statute requires. But this cannot be in a case where allegations and charges are admitted and no possible defence is placed before the authority concerned. What enquiry is to be made when one admits violations..... In a case where the facts are almost admitted, the case reveals itself and is apparent on the face of the record, and inspite of opportunity no worthwhile explanation is forthcoming as in the present case, it would not be a fit case to interfere with the termination order."

(33) In Aligarh Muslim University (supra) the Supreme Court has held that holding of enquiry in a case, where there can be no answer to the charges, would be useless formality. Similar view has been reiterated in Union of India and Anr. V. Mustafa and Najibai Trading Co. and Ors., (1998) 6 SCC 79; Dr. J. Shashidhara Prasad v. Governor of Karnataka and Anr.,(1999) 1 SCC 422; M. C. Mehta v. Union of India, (1999) 6 SCC 237 and Designated Authority (Anti-Dumping Directorate) Ministry of Commerce v. Haldor Topsoe A/S, (2000) 6 SCC 626.

(34) In H.C. Sarin v. Union of India, AIR 1976 SC 1686 the Supreme Court placed reliance upon the judgement of Lord Denning in R. v. Secretary of State for the Home Department ex-parte Mugal, (1973) 3 All. ER 796,wherein it has been observed as under:--

"The rule of natural justice must not be stretched too far. Only too often, the people who have done wrong seek to invoke 'the rule of natural justice' so as to avoid the consequences."

(35) Well-settled legal proposition is that every action complained of is to be tested and analysed one the touchstone of doctrine of prejudice. [Vide Maj. G.S. Sodhi v. Union of India and ors., (1991) 2 SCC 382; State Bank of Patiala and Ors. v. S.K. Sharma, (1996) 3 SCC 364, S.K. Singh v. Central Bank of India and ors., (1996) 6 SCC 415; Rajendra Singh v. State of M.P., AIR 1996 SC 2736; Mansoor Ali Khan (supra) and Manika Jain Vs. State of Rajasthan and ors., 1998 (1) RLW 71].

(36) In K. L. Tripathi v. State Bank of India, AIR 1984 SC 273, the Supreme Court observed as under:--

" 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 requirement of natural justice must depend on the facts and circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject matter to be dealt with, and so on so forth."

(37) In view of the above, the law on the issue can be summarised as under:-

"For any misconduct, the employer must initiate disciplinary proceedings as per the law and conclude the same, even if the statutory provisions provide for automatic termination of service holding an enquiry is mandatory. In exceptional circumstances where the absence from duty becomes very long and it can be assumed that the employee had abandoned the service. No enquiry is necessary as it would be a case of abandonment of service voluntarily. In a case where the fact remains undisputed and undeniable, an employee cannot submit any reply, holding an enquiry would be a futile exercise where an employee is absent from duty and he is given notice by the employer to join the duty within a stipulated period and he has thus not joined the service, no enquiry is needed for passing the order of termination. As the facts stand proved and it would be assumed that the employer is no more interested to serve."

 

(38) Just as principles of natural justice ensure fair decision where the function is quasi-judicial, the doctrine of fairness is evolved to ensure fair action where the function is administrative. [(1994) 4 SCC 104 (124) (Assistant Excise Commr. V. Issac Peter)]

(39) The principles of Natural Justice are integral part of the guarantee of equality assured by Art. 14 of the Constitution.[ 1993 AIR SCW 1995 = (1993) 3 SCC 259 (D.K. Yadav v. J.M.A. Industries Ltd.)]. Principles of Natural Justice are applicable to both law relating to procedure and rule of substantive law. In State of West Bengal v. Anwar Ali Sarkar, 1952 SCR 284, per majority, a seven Judge bench of the Supreme Court held that the rule of procedure laid down by law comes as much within the purview of Art. 14 of the Constitution as any rule of substantive law. In Maneka Gandhi v. Union of India, (1978) 2 SCR 621 another bench of seven Judges held that the substantive and procedural laws and action taken under them will have to pass the test under Art. 14. [D. K. Yadav (supra)].

(40) Strict adherence to rules of Natural Justice essential while taking decision affecting rights of a person as observed in (1986) 3 SCC 103 para 22 (Ram Chander v. Union of India) "It is a fundamental rule of law that no decision must be taken which will affect the rights of any person without first giving him an opportunity of putting forward his case. Both the Privy Council as well as this Court have in a series of cases required strict adherence to the rules of natural justice where a public authority or body has to deal with rights."

(41) The observance of the rules of natural justice is not referable to the fatness of the stake but is essentially related to the demands of a given situation. It does not supplant but supplement the law, (1988) 3 SCC 579 para 12 (Jain Exports (P) Ltd. v. Union of India).

(42) A fair hearing must be given before taking decision affecting rights of any person as observed in AIR 1987 SC 2257 (O.P. Gupta v. Union of India) (para 16)" It is a fundamental rule of law that no decision must be taken which will affect the rights of any person without first giving him an opportunity of putting forward his case. Both the Privy Council as well as this Court have in a series of cases required strict adherence to the rules of natural justice where a public authority or body has to deal with rights... there is always 'the duty to act judicially' wherever the rules of natural justice are applicable. There is therefore the insistence upon the requirement of a 'fair hearing'."

(43) In respect of curtailment of existing rights the principles of natural justice is attracted as observed in (1989) I SCC 764, para 11 (H.L. Trehan v. Union of India) " It is now a well established principle of law that there can be no deprivation or curtailment of any existing right, advantage or benefit enjoyed by a government servant without complying with the rules of natural justice by giving the government servant concerned an opportunity of being heard. Any arbitrary or whimsical exercise of power prejudicially affecting the existing conditions of service of a government servant will offend against the provision of Article 14 of the Constitution."

(44) Principles of Natural Justice must be applied in the unoccupied interstices of the statue unless there is a clear mandate to the contrary.  In Institute of Chartered Accountants of India v. L.K. Ratna, (AIR 1987 SC 71), Charan Lal Sahu v. Union of India, (1990) 1 SCC 613: (AIR 1990 SC 1480), (Bhopal Gas Leak Disaster case) and C.B. Gautam v. Union of India, (1993) 2 SCC 78, the doctrine that the principles of natural justice must be applied in the unoccupied interstices of the statute unless there is a clear mandate to the contrary, is re-iterated. [AIR 1994 SC 1074 (1089) = (1993) 4 SCC 727 (Managing Director, ECIL v. B. Karunakar)]

(45) The statute providing for observance of Natural Justice in a particular manner then it has to be observed in that manner and no other as observed in AIR 1981 SC 818 (Swadeshi Cotton Mills v. Union of India), "Where authority functions under a statute and the statute provides for the observance of the principles of natural justice in a particular manner, natural justice will have to be observed in that manner and no other. No wider right than that provided by the statute can be claimed nor can the right be narrowed." Where the statute is silent about the observance of Natural Justice, presumption is in favour of following it. The implication of the natural justice being presumptive it may be excluded by express word of statute or by necessary intendment. Where the  conflict is between the public interest and the private interest, the presumption must necessarily be weak and may, therefore, be readily displaced.

(46) Rules of natural justice are not rigid rules, they are flexible and their application depends upon the setting and the background of statutory provision, nature of the right, which may be affected and the consequences which may entail, its application depends upon the facts and circumstances of each case. [AIR 1987 SC 593, para 25 (R.S. Dass v. Union of India)]

(47) As observed by the Supreme Court in Suresh Koshi George v. University of Kerala, Civil Appeal No. 990 of 1968, D/- 15.7.1968, the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the inquiry is held and the constitution of the tribunal or body of persons appointed for that purpose. The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision in the facts of that case. [AIR 1970 SC 150, para 20 ( A.K. Kraipak v. Union of India)]

(48) The rules of natural justice are not embodied rules the question whether the requirements of natural justice have been met by the procedure adopted in a given case must depend to a great extent to the facts and circumstances of the case in point, the constitution of the Tribunal and the rules under which in functions. [AIR 1969 SC 198,para 7 (Suresh Koshi v. University of Kerala)]

(49) The soul of audi alteram partem rule is fair-play in action. Its essence is good conscience in a given situation: nothing more but nothing less-[AIR 1978 SC 851 (Mohinder Singh Gill v. Chief Election Commissioner)]. "Fairness itself is flexible, pragmatic and relative concept, not a rigid ritualistic or sophisticated abstraction"- the Court observed in this case, and also added that there was no ground to be frightened of delay, inconvenience and expense, if natural justice gained access.

(50) Whatever standard of Natural Justice is adopted, one essential is that the person concerned has a reasonable opportunity of presenting his case. "Lord Denning expressed the paramount policy consideration behind this rule of public law (while dealing with the nemo judex aspect) with expressiveness: "Justice must be rooted in confidence; and confidence is destroyed when right minded-people go away thinking 'the judge was biassed'." We  may adopt it to the audi alteram situation: "justice must be felt to be just by the community if democratic legality is to animate the rule of law. And if the invisible audience sees a man's case disposed of unheard, a chorous of 'no-confidence' will be heard to say, ' that man had no chance to defend his stance'." That is why Tucker L.J. in Russal v. Duke of Norfolk, (1949) 1 All. ER 109, 118, emphasised that 'whatever standard of natural justice is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case'. What is reasonable in given circumstances is in the domain of practicability; not formalised rigidity."  Para 56, Mohinder Singh Gill (supra).

(51) Right to be heard does not necessarily include a personal hearing. In the absence of any prescription in the statute itself, it may be sufficient in a particular case to consider the written representation. [AIR 1966 SC 671 (M. P. Industries Ltd. v. Union of India)]

(52) Situations in which 'audi alteram partem' rule may be excluded has been observed in AIR 1985 SC 1416 (Union of India v. Tulsiram Patel) that not only, therefore, can the principles of natural justice be modified but in exceptional cases they can even be excluded. There are well defined exceptions to the nemo judex in causa sua rule as also to the audi alteram partem rule. The nemo judex in causa sua rule is subject to the doctrine of necessity and yields to it as pointed out by this Court in J. Mohapatra & Co. v. State of Orissa, (1985) 1 SCR 322, 334-5. So far as the audi alteram partem rule is concerned, it is well established that where a right to a prior notice and an opportunity to be heard before an order is passed would obstruct the taking of prompt action, such a right can be excluded where the nature of action to be taken, its object and purpose and the scheme of the relevant statutory provisions warrant its exclusion; nor can the audi alteram partem rule be invoked if importing it would have the effect of paralysing the administrative process or where the need for promptitude or the urgency of taking action so demands, as pointed out in Maneka Gandhi (supra) at page 681. If legislation and the necessities of a situation can exclude the principles of natural justice including the audi alteram partem rule a fortiorari so can a provision of the Constitution, for a Constitutional provision has a far greater and all-pervading sanctity than a statutory provision. (para 101)

(53) The Writ will not be issued if the effect of issuing a writ would be to sustain or restore an illegal order, AIR 1966 SC 828 (Venkateswara v. Government of Andhra Pradesh).

(54) The equality clause cannot be invoked to perpetuate an illegal order, State of Haryana v. Ram Kumar, J.T. (1997) 8 SC 171.

(55) Non-observance of the rules of natural justice.

(a) An administrative body vested with quasi judicial power is not bound to follow the rules of judicial procedure, such as to examine witnesses or even to hear the parties orally. Local Govt. Board v. Arlidge, (1951) SC 120, 132

(b) But there is a minimum standard to be observed "by any one who decides anything"; Board of Education v. Rice, (1911) AC 179.

(c) The requirements of natural justice vary with the varying Constitution of the different quasi judicial authorities and the statutory provisions under which they function.

Hence, the question whether or not any rule of natural justice has been contravened in any particular case should be decided not under any preconceived notions, but in the light of the relevant statutory provisions, the Constitution of the tribunal and circumstances of each case.

(56) Fairness: The requirement of 'fairness' implies that even an administrative authority must not act arbitrarily or capriciously and must not come to a conclusion which is perverse or is such that no reasonable body of persons properly informed could arrive at; Nally v. State of Bihar, (1990) 2 SCC 48, paragraphs 13-15, 19.

Once the test of 'fairness' is substituted for a 'hearing' in this area of administrative decisions, it would follow that it cannot require that much of hearing when a person is charged with some offence or misconduct. Notice of the penalty sought to be imposed with an opportunity for making a representation and consideration of that representation in a fair and just manner, would suffice.

Where the administrative function is statutory the court must read into the statute the requirement of fairness, which means the minimum principles of natural justice; Union of India v. Nambudri, (1991) 2 UJSC 303, paragraph 9.

(57) According to the respondents in view of A.I.R. 2001(SC) 102 = J.T. 2000 Suppl. 2 SC 417 (Nazira Begum Lashkar and others Vs. State of Assam and others), where in reference to Rule-3 of Assam Elementary Education (Provincilisation) Rules, 1977 the appointment of the assistant teachers made dehorse the statutory rules without any advertisement for calling the applications and without any proper constitution of selection committee and without any interview cancelled after giving notice to the appointees, were held not illegal by the Supreme Court as such appointments did neither confer any right on the appointee nor any such appointee could claim any equitable relief from any Court as the appointments stood annulled hardly after six months from the date of appointments, therefore, no direction for adjustment of equities in favour of the appointees were to be given. In the case of Nazira Begum Lashkar (supra) the appointment of assistant teachers of Primary Schools made dehorse the norms, rules etc. were cancelled after serving them the show cause notice, whereas in the present case the impugned order dated 18.10.1985 apparently appears to be an order simplicitor, but in the background the basis of such order required notice to be given to the petitioner. Learned counsel for the respondents has also submitted that in view of 2002 All. L.J. 1216 (Dharmendra Kumar Tiwari Vs. State of U.P. and others) the temporary appointee has no right to continue even if the post was existing and this Court in Dharmendra Kumar Tiwari (supra) following 1991 (1) SCC 691 (State of U.P. Vs. Kaushal Kishore) has held that : -

" There is no such legal principle that a temporary employee has a right to continue on the post till a regularly selected candidate is available for that post. Rather the legal position is just the reverse, namely that a temporary employee has no right to continue even if the post continues to exist. An ad hoc appointee is also a temporary appointee. The expression 'temporary appointee' is a general expression under which there are several sub-categories, e.g. casual appointee, daily wage appointee, ad hoc appointee and even a probationer. All such sub-categories fall within the general category of a temporary appointee, as contrasted to a permanent appointee. The legal position is that a temporary appointee has no right to the post and it is not correct to say that a temporary appointee has a right to continue till a regularly selected candidate is available for the post.

1991 AIR SCW 793 Foll."

(58) In Dharmendra Kumar Tiwari (supra) in paras 3, 4, 5 and 7 this Court has observed as below: -

"3. Learned counsel for the petitioner submitted that the petitioner has a right to continue till the regularly selected candidate is available for the post. We do not agree with this submission. There is no such legal principle that a temporary employee has a right to continue on the post till a regularly selected candidate is available for that post. Rather, the legal position is just the reverse, namely, that a temporary employee has no right to the post, and hence he has no right to continue even if the post continues to exist. An ad hoc appointee is also a temporary appointee. The expression 'temporary appointee' is a general expression under which there are several sub-categories, e.g. casual appointee, daily wage appointee, ad hoc appointee and even a probationer. All such sub-categories fall within the general category of a temporary appointee, as contrasted to a permanent appointee. The legal position is that a temporary appointee has no right to the post and it is not correct to say that a temporary appointee has a right to continue till a regularly selected candidate is available for the post."

"4. Learned counsel for the petitioner has brought to our notice certain interim orders passed by the Lucknow Bench of this Court vide Annexure 3 and 4 to the writ petition. These are interim orders and hence are no precedents. The law is well settled by the Supreme Court in various decisions that a temporary employee has to right to the post vide State of U. P. v. Kaushal Kishore (1991) 1 SCC 691: (1991 AIR SCW 793) Triveni Shankar Saxena v. State of U.P. AIR 1992 SC 496: (1992 All. L.J. 230) etc. Since the law has been clearly laid down on this point by the Supreme Court anything contrary held by the Lucknow Bench of this Court is not good law."

"5. Learned counsel for the petitioner has then invited our attention to a Division Bench decision of this Court in Shiv Chandra Misra v. District Inspector of Schools 1986 UPLBEC 248 where on interpreting Section 18 of the U.P. Secondary Education Services Commission Act, 1982 it was held that a teacher appointed on ad hoc basis has a right to continue till a regularly selected candidate is available. We are of the opinion that this decision is only on the interpretation of Section 18 of the aforesaid Act, and hence the principle laid down therein has to be confined to teachers of Intermediate Colleges appointed in ad hoc capacity under Section 18, but no universal principle can be derived from the aforesaid decision that every ad hoc appointee in any service must be allowed to continue till a regularly selected candidate is available. The correct position, as already stated above, is just the reverse."

"7. In our opinion, this Rule does not help the petitioner, because it only states that the Government may also make ad hoc appointments or temporary officiating arrangements for the posts falling vacant substantively or temporarily. This Rule does not say that such ad hoc or temporary appointee has a right to continue till a regularly selected candidate is available. Rather as held by the Supreme Court Kaushal Kishore's caseand Triveni Shankar Saxena's case (1992 All. L.J. 230) (Supra) a temporary or ad hoc appointee has no right to continue even for a single day as he has no right to the post."  

 

(59) As submitted by the learned counsel for the respondent that in light of (1999) 2 UPLBEC 1040 (Arvind Kumar Vs. The Director, Rajya Krishi Utpadan Mandi Parishad, U.P. and others) and in reference to the Regulations 11, 14, 15 and 16 of ' Regulation, 1984' any appointment made in violation of the prescribed procedure does not create any right to the appointee and even the observation of the High Court made under Article 226 of the Constitution of India " to give preference in appointment". In case of State of Himachal Pradesh Vs. Suresh Kumar Sharma, 1996 (2) SLR 321 the Supreme Court had held that the judicial process cannot be utilized to support in mode of recruitment dehorse the rules. As contended on behalf of Sri B. D. Mandhyan, learned counsel for the respondents that this Court has to consider the observations of the Supreme Court made in the case of State of Haryana Vs. Piara Singh, AIR 1992 SC 2130, where the entry into service through back door has been depricated. As contended on behalf of the respondents, this Court in 1999 All. L.J. 2433 (Sarita Singh Vs. State of U.P. and others) has held that where temporary employee whose service was extended from time to time if removed from service on the ground that he was not appointed against regular post through regular selection, cannot claim any right to assert under the writ jurisdiction to protect his appointment and the Court can not support the entry in service through back door.

(60) According to the petitioner, petitioner's service apparently had been terminated by an order dated 18.10.1985 i.e. by an order simplicitor, but the foundation is procedural deficiencies, irregularities and illegalities as described in the foregoing paragraphs, moreso, without affording opportunity of hearing, therefore, the termination order is bad in view of  2002 (2) A.W.C. 1550 (Neeraj Bharadwaj Vs. Marathwada Institute of Technology and others), 2001 (1) UPLBEC 908 (K.P. Giri Vs. State of U.P. and others) and 1998 (6) Judgement Today (SC) 464 (Basudeo Tiwary Vs. Sido Kanhu University and others).

(61) As contended on behalf of the petitioner the order of dismissal was passed without affording opportunity of hearing to the petitioner and in gross violation of the principle of natural justice as such the order of dismissal is to be set aside, in view of AIR 1999 SC 22 (Whirlpool Corporation Vs. Registrar of Trade  Marks, Mumbai and others.

(62) According to the petitioner in the facts and circumstances before cancellation of the appointment the opportunity of hearing was to be given in consonance to principle of natural justice and for this purpose the reliance has been placed by the petitioner on the following cases:-

(I )      Shridhar Vs. Nagar Palika, Jaunpur, AIR 1990 SC 307.

(II)     Shrawan Kumar Jha  Vs State of Bihar, AIR 1991 (Suppl) (1 ) SCC   330.

(III) Basudeo Tiwary  Vs Sido Kanhu University and others, AIR 1998   Supreme Court 3261.

(IV) Pancham Ram and others Vs. Chief Engineer, U.P.Jal Nigam and others, 1999 (1) ESC 490 ( All.) ; ( 1999 ) 1 UPLBEC 537.

(V) Sanjeev Kumar and others Vs State of U.P. and others, 1999 (1) ESC 754 ( All.) : ( 1999 ) 1 UPLBEC 575.

(63)  In Shridhar  Vs. Nagar Palika, Jaunpur ( supra ) the Supreme Court has held that it is elementary principle of natural justice that no person should be condemned without hearing. In paragraph 8 it was held:

" 8.  The High Court committed serious error in upholding the order of the Government dated 13.2.1980 in setting aside the appellant's appointment without giving any notice or opportunity to him.  It is an elementary  principle of natural justice that no person should be condemned without hearing.    The order of appointment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording opportunity of hearing to him. Any order passed in violation of principles of natural justice is rendered void. There is no dispute that the Commissioner's order had been passed without affording any opportunity of hearing to the appellant, therefore, the order was illegal and void. The High Court committed serious error in upholding the Commissioner's order setting aside the appellant's appointment. In this view, order of the High Court and the Commissioner are not sustainable in law."

(64) In Shravan Kumar's case the appointments were cancelled by the Deputy Development Commissioner on the ground that the Deputy Superintendent Education had no authority to make appointment. The Supreme Court had held that the impugned order of cancelling the appointment was liable to be quashed on the ground that the appellant therein had not been given opportunity of hearing before cancelling his appointment.

(65) Basudeo Tewari (Supra) is a case in which in accordance with the provisions of Section 35 (3) of the Bihar University Act, 1951 service of writ petitioner was terminated on the ground that the appointment was irregular. Section 35 (3) of the 'Act 1951'  provides;

" 35 (3) Any appointment or promotion made contrary to the provisions of the Act, Statutes, Rules or Regulations or in any irregular or unauthorised manner shall be terminated at anytime without notice."

Exercising the power under Section 35 (3) of the 'Act 1951' the order was passed which was challenged before the High Court. The Supreme Court in paragraph 12 of the said judgement has observed :

"12. The said provision provides that an appointment could be terminated at anytime without notice if the same had been made contrary to the provisions of the Act, Statutes, Rules or Regulations or in any irregular or unauthorised manner. The condition precedent for exercise of this power is that an appointment had been made contrary to Act, Rules, Statutes and Regulations or otherwise. In order to arrive at a conclusion that an appointment is contrary to the provisions of the Act, Statutes, Rules or Regulation etc. a finding has to be recorded and unless such a finding is recorded, the termination cannot be made, but to arrive at such a conclusion necessarily an enquiry will have to be made as to whether such appointment is contrary to the provisions of the Act etc. If in a given case such exercise is absent, the condition precedent stands unfulfilled. To arrive at such a finding necessarily enquiry notice will have to be issued to him. If notice is not given to him then it is like playing Hamlet without the Prince to Denmark, that is if the employee concerned whose rights are affected, is not given notice of such a proceeding and a conclusion is drawn in his absence, such a conclusion would not be just, fair or reasonable as noticed by this Court in D. T. C. Mazdoor Sabha's case, AIR 1991 SC 101. In such an event we have to hold that in the provision there is an implied requirement of hearing for the purpose of arriving at a conclusion that an appointment had been made contrary to the Act, Statutes, Rules or Regulations etc. and it is only on such a conclusion being drawn, the services of the person could be terminated without further notice. That is how section 35 (3) in this case will have to be read."

The other judgements referred by the Counsel for the petitioner do support the contention of the petitioner that he was entitled for notice and hearing before cancelling his appointment. In the present case since the petitioner has joined and was working, the cancellation of his appointment would have adversely affected his legal right which required a notice so that the petitioner ought to have given an opportunity to have his say. May it be, that the petitioner in his reply could not have stated any fact which would have dispelled the charges levelled, against the selection proceedings but justice must not only be done but should always seems to be done. In all fairness and in conformity with the principle of natural justice notice ought to have been given to the petitioner.

(66) According to the petitioner in 2002 (1) U.P.L.B.E.C. 352, Ram Vikas Vs. State of U.P. and others the appointment of employee writ petitioner of Government Medical Hospital was cancelled on the basis of the alleged irregularities in the selection process and on enquiry made for the purpose by higher authorities the Government passed order of cancellation of appointment of writ petitioner. Such cancellation of appointment was held illegal having been passed without opportunity of hearing to the writ petitioner. This Court in para 11 in the said Ram Vikas (Supra) has observed as below: -

" In the present case since the petitioner has joined and was working, the cancellation of his appointment would have adversely affected his right which required a notice on the issues which have been raised in the enquiry report dated 20.4.1996. Petitioner ought to have given an opportunity to have his say. May it be, that the petitioner in his reply could not have stated any fact which would have dispelled the charges levelled against the selection proceedings but justice must not only be done but should always seem to be done. In all fairness and in conformity with the principle of natural justice notice ought to have been given to the petitioner."

(67) In 2001 Lab. I.C. 36 (Jaswant Singh and others Vs. State of Madhya Pradesh and others) the Supreme Court in reference to the decisions in 1996 AIR SCW 3979= (1996) 6 SCC 216 (Excise Superintendent Malkapatnam Vs. K. B.N. Visweshwara Rao) and AIR 1987 SC 1227 = 1987 Lab IC 915= (1987) 3 SCC 308 (Union of India Vs. N. Hargopal) has set aside the cancellation of the appointments of the appointees, who joined as Lower Division Clerk in Panchayat Raj Department, on the ground that the cancellation of the appointment was made without affording opportunity of hearing to the appointees, with further liberty to the Collector to pass a fresh order in reference to the provisions of M.P. Panchayat Adhiniyam, 1981.

(68) In (2003) 2 UPLBEC 1738 (Shashi Kant Pandey Vs. Executive Engineer, Anusandhan Avam Niyojan, Jal Sansadhan Prakhand, Varanasi and another) where the appointment, alleged to have been obtained on production of forged and fabricated documents by the petitioner, was terminated and the entire facts indicated that order of suspension was passed without giving any proper hearing and in violation of principles of natural justice, therefore, the Court directed Chief Engineer concern to issue notice stating alleged allegations of forgery and fabrication in producing documents for getting appointment and to provide writ petitioner the proper opportunity of hearing in accordance with principles of natural justice, before taking any decision in the matter. This Court in the case of Shashi Kant Pandey (supra) in para 23 observed as below:

" This Court finds that in view of the serious allegations against the selection grave doubt has been raised with regard to the selection, appointment and alleged involvement of forgery on the part of the petitioner, although the order dated 20.11.1998 is not legally sustainable for lack of providing opportunity of natural hearing, therefore, it is directed that before the petitioner is permitted to join the post a decision is to be taken by the Competent Authority on issues raised after giving proper opportunity to the petitioner. In view of the above this Court directs the Chief Engineer of Anusandhan Avam  Niyojan, Jal Sansadhan Prakhand, Varanasi to issue a notice to the petitioner regarding the allegation against the selection and alleged forgery in the appointment and after considering the records, documents and earlier enquiry and explanation and material submitted by the petitioner take a proper decision in the matter. If the petitioner wants oral hearing he may be allowed to do so and if petitioner gives only written statement/ submission that would be treated to be sufficient that he has been heard properly. The petitioner's continuance to the post and providing other benefits will depend upon the decision to be taken by the Chief Engineer of the above department. The Chief Engineer will issue proper notice to the petitioner within a period of two months from the date of receipt of certified copy of this judgement and after receiving the explanation from the petitioner after hearing the petitioner, after providing opportunity of hearing or after considering the written submission of the petitioner shall pass final order within a period of six months from today."

The similar view was taken by this Court in the order dated 16.7.2003 passed in Civil Misc. Writ Petition No. 3240 of 1992 (Om Prakash SinghVs. Nagar Palika, Ram Nagar, Varansi).

(69) In JT 1998 (6) SC - 55, State of U.P. Versus Shatrughan Lal and another it was held :

" One of the principles of natural justice is that a person against whom an action is proposed to be taken has to be given an opportunity of hearing. This opportunity has to be an effective opportunity and not a mere pretence. In departmental proceedings where charge sheet is issued and the documents which are proposed to be utilised against that person are indicated in the charge sheet but copies thereof are not supplied to him in spite of his request, and he is, at the same time, called upon to submit his reply, it cannot be said that an effective opportunity to defend was provided to him.         (Para 4)"

The case depended on records of the Department only and Director General, Anti-Corruption Bureau had pointed out that no witnesses had been examined before he gave his report.  The Inquiry Officers, who had been appointed one after the other, had just to examine the records to see if the alleged deviations and constructions were illegal and unauthorised and then as to who was responsible for condoning or approving the same against the bye-laws.

(70) It is also relevant to note that in A.I.R. 1994 SC 2166 Krishan Yadav and another Vs. State of Haryana and others, where the selection of Taxation Inspectors was cancelled because the selection process was stinking, conceived in fraud and delivered in deceit, therefore, cancellation of the entire selection was upheld and the plea of innocence of selectees was found not tenable and selectees were not required to repay salary and perks.  It was observed in Krishan Yadav ( supra ) as below:-

" As regards the selection made without interview, fake and ghost interviews, tempering with the final records fabricating documents, forgery, an inference that all was motivated by extraneous considerations can be drawn.  The entire selection thus is arbitrary and is liable to be set aside.  The plea that innocent candidates should not be penalised for the misdeeds of others in not applicable to such cases.  The effect of setting aside the selection would mean the selectees will have no right to go to the office.  Normally they will have to repay the entire salary and perks which they have received from the said office.  The Court however refused to order repayment in this case."

(71) Learned Standing counsel has placed reliance on A.I.R. 1997 SC 1629 = JT 1997 (1) SC 243 = 1997 (2) SCC 1, (Ashwani Kumar and others Vs State of Bihar and others), where the recruitment in T.B. Eradication Programme of State Government to the post of Class-III and Class - IV employee made in derogation to the prescribed procedure for the recruitment laid down by the State Government and without sanctioned post backed by financial budget approval was found ex-facie illegal and not binding on the State Government and was found not contradictory to the provisions of Article 16 of the Constitution and the employees so recruited and for regularisation in service were treated to be illegal in respect of their entry into service and as a total disregard of recruitment rules or being not an existing vacancy, as such no case of regularisation was possible.  The Supreme Court in Ashwani Kumar (supra ) observed as below:-

"16. So far as the principles of natural justice are concerned it has to be stated at the outset that principles of natural justice cannot be subjected to any strait-jacket formula.  They will vary from case to case, from circumstance to circumstance and from situation to situation.  Here is a case in which 6000 employees were found squatting in the Tuberculosis Scheme controlled and monitored by Dr. Mallick for the entire State of Bihar  and there was no budgetary sanction for defraying their expenditure. At least out of 6000 employees as seen earlier 3750 were totally unauthorised and were squatting against non-existing vacancies.  A grave situation had arisen which required immediate action for clearing the stables and for eradicating the evil effects of these vitiated recruitment's so that the Tuberculosis Eradication Scheme could be put on a sound footing.

         xxxx                    xxxx                xxxx                    xxxx  

Whatever was submitted by the concerned employees was taken into consideration and then the committee came to a firm decision to the effect that all these appointments made by Dr. Mallick were vitiated from the inception and were required to beset aside and that is how the impugned termination orders were passed against the appellants.  On the facts of these cases, therefore, it cannot be said that principles of natural justice were violated or full opportunity was not given to the concerned employees to have their say in the matter before their appointments were recalled and terminated.  Point No.3 is, therefore, answered in the negative."

" 17.   The initial entry of the employees is itself unauthorised being not against sanctioned vacancies nor was Dr. Mallick entrusted with the power of creating vacancies or posts for the schemes under the Tuberculosis Eradication Programme.  Consequently the termination of the services of all these appellants cannot be found fault with. Nor any relief as claimed by them of reinstatement with continued service can be made available to them."

(72) In my respectful consideration the decision of Ashwani Kumar and others (supra) is not applicable to the facts of the present case. As Ashwani Kumar's case (supra) the Supreme Court while dealing with the question of natural justice had observed that  public notices were given to the petitioners as well as all other effected employees who had submitted their explanations. In that case, the High Court had directed the State Government to appoint the committee to thoroughly investigate the entire matter in pursuance of which the committee in question had issued notices to all the affected persons and thus after providing opportunity of hearing the report of Committee was finalised. In Ashwani Kumar's case against 2500 posts appointments of 6000 persons were made and the Supreme Court in Ashwani Kumar (supra) has observed:

" Thus the basic principle of natural justice cannot be said to have been violated by the Committee which ultimately took decision on the basis of the personal hearing given to the concerned employees and after considering what they have to say regarding their appointments. Whatever was submitted by the concerned employees was taken into consideration and then Committee came to a firm decision to the effect that all these appointments made by Sri Malik were vitiated from the inception and were required to be set aside and that is how impugned termination orders were passed against the appellant. On the facts of these cases, therefore, it can not be said that principles of natural justice were violated or full opportunity was not given to the concerned employees to have their say in the matter and before their appointments were recalled and terminated."

(73) In para 10 of the said decision of Nazira Begam Lashkar (supra) the verdict of Ashwani Kumar (Supra) and two cases were referred on behalf of the beneficiaries the first one namely  Arun Kumar Rout and ors. Vs. State of Bihar and ors., ( JT 1998 (4) SCC 490 = 1998 (9) SCC 71 ), wherein this Court had indicated that the appointees deserve sympathetic consideration in getting appointment against sanctioned posts on humanitarian consideration and secondly the judgement of  H.C. Puttaswamy and ors., Vs. The Hon'ble Chief Justice of Karnataka High Court, Bangalore and Ors.,( J.T. 1990 (4) SC 474= 1991 Supp.(2) SCC 421 ), whereunder the Supreme Court reviewed the earlier orders of the Court and treated the services of the appointees to be regularly appointed and also after considering the material aspect and observations of the High Court on the following effect that the High Court was persuaded to appoint an Inquiry Committee, in view of the allegations of gross irregularities and illegalities committed in the matter of appointment of teachers in different primary schools in different Districts and the said Committee has gone into details and recorded findings that the provisions of the Recruitment Rules have not at all been followed, the High Court has even gone to the extent of recording a finding that there has been no selection, no interview or even fake or ghost interviews and there has been tampering of records and fabricating of documents and  since the appointments to the posts were governed by the set of statutory rules, and the prescribed procedure therein had not been followed and, on the other hand, appointments have been made indiscriminately, immediately after posts were allotted to different Districts at the behest of some unseen  hands, such appointments were not to confer any equitable relief from any Court and with these observation the Supreme Court has also held that it cannot be said that principles of natural justice were violated or full opportunity was not given to the employees concerned to have their way in the matter before their appointments were recalled and terminated.

 

(74) Similar question arose in (2001) 3 UPLBEC 2652 (Sadiq Ali and others Vs. State of U.P. and others), where following the decisions of the Supreme Court this Court (D.B.) has held that opportunity of hearing was not required to be given to the appointees before cancellation of their appointments/ selection, the same being illegal and bad. In Sadiq Ali (supra) the appointment of the candidates were cancelled despite the fact that they have worked for about 10 months, and claim of the appointees were also rejected in view of the facts and circumstances when the recruitment of the appointees was made on the Group 'D' post by the Chief Medical Officer without publishing the posts/ vacancies in the newspaper of wide circulation and by committing irregularities in violation of the procedure prescribed for selection and the selection having been found absolutely illegal and irregular on the inquiry made on the complaints.

(75) In the case of Krishna Yadav (supra), the Supreme Court had set aside the entire selection and the appointment after finding the whole examination and interview having termed to be a fraud. The relevant paras 20 and 21 of the judgement rendered in the said case are reproduced below:

"20. It is highly regrettable that the holders of public officers both big and small have forgotten that the offices entrusted to them are sacred trust. Such offices are meant for use and not abuse. From a Minister to a menial every one has been dishonest to gain undue advantages. The whole examination and the interview have turned out to be farcial exhibiting base character of those who have been responsible for this sordid episode. It shocks our conscience to come across such a systematic fraud. It is somewhat surprising that High Court should have taken the path of least resistance stating in view of the destruction of records, it was helpless. It should have helped itself. Law is not that powerless."

"21. In the above circumstances, what are we to do? The only proper course open to us is to set aside the entire selection. The plea was made that innocent candidates should not be penalised for the misdeeds of others. We are unable to accept this argument. When, the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place as "Fraud unravels everything." To put it in other words, the entire selection is arbitrary. It is that which is faulted and not the individual candidates. Accordingly, we hereby set aside the selection of Taxation Inspectors."  

(76) In JT 1996 (6) SC 515 (Biswa Ranjan Sahoo and others Vs. Sushanta Kumar Dinda and others), the Supreme Court has held that no notice is required to be issued to the persons affected in the case of mass scale malpractice in the selection process. In para 13 of the said judgement the Supreme Court has held as under:

"13. A perusal thereof would indicate the enormity of malpracticed in the selection process. The question, therefore, is, whether the principle of natural justice is required to be followed by issuing notice to the selected persons and hearing them. It is true, as contended by Mr. Santosh Hedge, learned Senior Counsel appearing for the petitioners, that in the case of selection of an individual his selection is not found correct in accordance with law, necessarily, a notice is required to be issued and opportunity be given. In a case like mass malpractice as noted by the Tribunal, as extracted hereinbefore, the question emerges whether the notice was required to be issued to the persons affected and whether they needed to be heard? Nothing would become fruitful by issuance of notice. Fabrication would obviously either be not known or no one would come forward to bear the brunt. Under these circumstances, the Tribunal was right in not issuing notice to the persons who are said to have been selected and given selection and appointment. The procedure adopted are in fragrant breach of the rules offending Articles, 14 and 16 of the Constitution."

(77) In (1996) 7 Supreme Court Cases 118 (State of M.P. and others Vs. Shyama Pardi and others), the Supreme Court has held that the question of violation of principle of natural justice does not arise in a case where the persons are not possessing the prerequisite qualifications prescribed by the statutory rules. In para 5 of the said judgement, the Supreme Court has held as under:

"5. It is now an admitted fact across the Bar that the respondents had not possessed the prerequisite qualification, namely 10+2 with Physics, Chemistry and Biology as subjects. The Rules specifically provide that qualification as a condition for appointment to the post of ANM. Since prescribed qualifications had not been satisfied, the initial selection to undergo training is per se illegal. Later appointments thereof are in violation of the statutory rules. The Tribunal, therefore, was not right in directing the reinstatement of the respondents. The question or violation of the principles of natural justice does not arise. The ratio of Shrawan Kumar Jha v. State of Bihar, strongly relied on, has no application to the facts of this case. That was a case where the appellants possessed initial qualifications but they did not undergo the training. Since the appointment was set aside on the ground of want of training, this Court interfered with, directed the Government to reinstate them into service and further directed them to send the appellants therein for training."

(78) In JT 1996 (8) SC 510 (Hanuman Prasad and others Vs. Union of India and another), the Supreme Court has held that if the authorities have taken the decision on the basis of the report submitted by the investigating agency, containing proof in support of the allegations of malpractice committed in writing the examination, no prior opportunity need be given in such cases. In para 4 of the said judgement, the Supreme Court has held as under:

"4. It is then contended that though the selected candidates have no vested right, they had got a legitimate expectation for appointment when they were selected for being appointed. They should be given prior opportunity and also know the reasons for cancellation. In support of this contention, he placed reliance on paragraph 8 of the judgment of this Court in Asha Kaul and another v. state of Jammu & Kashmir and others, JT 1993(2) SC 688. It is unexceptionable that when duly constituted selection committee makes recommendation for appointment of the selected candidates the candidates do not get any vested right or legitimate expectation until they are given appointment according to the Rules; they have a chance to be appointed as have been selected by the recruitment agency. In that case, the Government had cancelled the select list without any reasons. This Court has laid the above rule in that backdrop. The ratio therein has no application for the reason that after the perusal of the report submitted by the investigating agency, the competent authority had cancelled the selection so that the regular and proper examination could be conducted giving opportunity to every one in a fair manner. No prior opportunity need be given in the case of mass copying. It is not the case where a named candidate committed copying. Accordingly, we do not find any illegality in the order passed by the Tribunal."

(79) In 1990 (4) SCC 633 ( U.P.Junior Doctors' Action Committee Vs. Dr. B.Sheetal Nandwani and others, where for getting admission in post graduate course a fake judgement of one bench of High Court, Allahabad aborting entrance examination was produced, pursuant to which an order was issued by an another bench of the High Court Allahabad (Lucknow Bench) thereby cancelling the examination of entrance to P.G. course and directing State Government to grant admission on the basis of M.B.B.S. results, such bogus judgement of earlier bench  was found not existent therefore order issued pursuant thereto having been made on the basis of misrepresentation was set aside.  The Supreme Court in para 5 of B. Sheetal Nandwani (supra) has observed as below:-

"5.  We are satisfied that there is a deep-seated conspiracy which brought about the fake order from Allahabad, the principal seal of the High Court and on the basis thereof a subsequent direction has been obtained from the Lucknow Bench of the same High Court.  The first order being non-existent has to be declared to be a bogus one.  The second order made on the basis of the first order has to be set aside as having been made on the basis of misrepresentation.  We are alive to the situation that the persons who have been taken admission on the basis of the MBBS results are not before us.  The circumstances in which such benefit has been taken by the candidates concerned do not justify attraction of the application of rules of natural justice of being provided an opportunity to be heard.."

(80) The selection process must be fair and impartial in view of judgment in AIR 1992 SC 1806, para 6, (National  Institute of Mental Health Vs. Dr. K. Kalyana Raman), where the Supreme Court observed that the procedural fairness is the main requirement in the administrative action. The 'fairness' or 'fair procedure' in the administrative action ought to be observed. The Selection Committee cannot be an exception to this principle. It must take a decision reasonably without being guided by extraneous or irrelevant consideration.

(81) No rights or status can accrue from an order made by an authority not legally competent to make it in the light of judgment in AIR 1964 SC 521 (para 8) (State of Punjab Vs. Jagdip Singh), where the Supreme Court observed that where an appointment/ promotion is made in contravention of the statutory rules or by an authority not competent to make it or the irregularity in making it goes to the very root for instance there were no vacancies, there is no legal foundation of the order and no rights are created.

(82) An appointment dehors of statutory provisions is invalid ab initio in view of judgment in AIR 1974 SC 238 (para 8) (University of Kashmir Vs. Mohd. Yasim) where the Supreme Court observed when a statue created a body and vested the powers of appointment in the University council by prescribing the manner of its exercise of power, the appointment made dehors of these provisions could not be valid. It cannot be validated on the theory of factum valet, also.

(83) In respect of examining the effect on those, who are employed by virtue of irregular appointments by the authorities the Supreme Court in AIR 1965 SC 1293 (C. Channabasavaiah Vs. State of Mysore) observed that a selection was made by the Mysore Public Service Commission for appointment to Class I and II posts in the State Administrative Service. 98 persons were declared successful and given appointment. Subsequently the State Government sent a list of 24 candidates for consideration of the Commission who approved it. These 24 persons were also appointed. 16 candidates who had not been selected filed a writ petition in the Mysore High Court. As a compromise, the State Government undertook to appoint them also. Three of them had not been called for interview at all. Thereafter some other candidates who had not been selected approached the Supreme Court. The Supreme Court set aside the appointments made at the instance of the Government and the 16 writ petitioners. While setting aside the selection and appointments the Court observed: " It is very unfortunate that these persons should be uprooted after they had been appointed but if equality and equal protection before the law have any meaning and if our public institutions are to inspire that confidence which is expected of them we would be failing in our duty if we did not, even at the cost of considerable inconvenience to Government and the selected candidates do the right thing."(page 1296)

(84) In AIR 1988 Patna High Court Court (Full Bench) 26, para 46,(Rita Mishra Vs. Director, Primary Education, Bihar), where the appointments were said to have obtained on the basis of forgery, no right was held to be created and accrued to the beneficiaries in respect of payment of salary even though the persons appointed have rendered work.

(85) In 1995 Supp. (1) SCC 188 (Gurdeep Singh Vs. State of J. & K.) it was held by the Supreme Court that the selection procured by illegal means should not be permitted to continue even on human consideration.

(86) In AIR 1992 SC 1806 (National Institute of Mental Health and Neuro Science Vs. Dr. Kalyana Raman) the Supreme Court has held that the Selection Committee must observe procedural fairness and that its decision must be reasonable, non-arbitrary and not based on extraneous or irrelevant consideration.

(87) In (1996) 7 SCC 333 (Paschim Banga Prathamik Shikshak Shikshan etc. Samity Vs. President, W.B. Primary Schools/ Council) the Supreme Court held that selection vitiated by gross irregularities is liable to be cancelled.

(88) In (2003) 2 UPLBEC 1527 this High Court (Division Bench) in Ram Briksh Prasad Vs. Member-Secretary, Regional Administrative Committee/ Assistant General Manager/ Regional Manager, U.P. Co-operative Bank Ltd., Regional Office, Gorakhpur and another, where the termination of a bank employee from service in reference to Rule 59-B (3) U.P. Primary Agricultural Credit Co-operative Societies Rules, 1975 and in reference to U.P. Primary  Agricultural Credit Co-operative Societies Centralised Service Regulations, 1976 on the ground of embezzlement of about 5 lakhs rupees, such employee was found absconded and did not attend the duty despite publication in local newspaper, such employee was suspended, thereafter terminated and had earlier filed writ petition, which was dismissed to avail alternative remedy of appeal, which too was dismissed, after examining the entire facts relating to termination, this Court found that the order of termination was only proper step and there was no illegality while terminating the service of the writ petitioner.

(89) The question of selections and appointments made dehors the 'Rules' have been considered from time and again and the Hon'ble Supreme Court has held that such appointments are unenforceable and inexecutable. It is settled legal proposition that any appointment made dehors the 'Rules' violates the Public Policy enshrined in the rules and, thus, being void, cannot be enforced. (Vide Smt. Ravinder Sharma & Anr. Vs. State of Punjab & ors. (1995) 1 SCC 138; Smt. Harpal Kaur Chahal Vs. Director, Punjab Instructions, 1995 (Suppl) 4 SCC 706; State of Madhya Pradesh Vs. Shyama Pardhi, (1996) 7 SCC 118; State of Rajasthan Vs. Hitendra Kumar Bhatt, (1997) 6 SCC 574; Patna University Vs. Dr. Amita Tiwari, AIR SC 3456; Madhya Pradesh Electricity Board Vs. S.S. Modh & ors., AIR 1997 SC 3464; Bhagwan Singh Vs. State of Punjab and ors., (1999) 9 SCC 573;  and Chancellor Vs. Shankar Rao & ors., (1999) 6 SCC 255.

(90) An appointment dehors the 'Rules' violates the mandate of the provisions of Article 14 and 16 of the Constitution as held by the Hon'ble Supreme Court in  Delhi Development Horticulture Employees' Union Vs. Delhi Administration, AIR 1992 SC 789; and  State of Haryana & ors. Vs. Piara Singh, AIR 1992 SC 2130. In Delhi Transport Corporation Vs. D.T.C., Mazdoor Congress &ors., AIR 1991 SC 101.  The Hon'ble Supreme Court recognised the public employment as public property and held that all persons similarly situated have a right to share in it, though its enjoyment is subject to the recruitment rules which must be in consonance to the Scheme of the Constitution of India.

(91) In Dr. M.A. Haque & ors. Vs. Union of India & ors., (1993) 2 SCC 213, the Supreme Court observed as under:-

"........ We cannot lose sight of the fact that the recruitment rules made under Article 309 of the Constitution have to be followed strictly and not in breach. If a disregard of the rules and by passing of the Public Service Commissions are permitted, it will open a back-door for illegal recruitment without limit. In fact this Court has, of late, been witnessing a constant violation of the recruitment rules and a scant respect for the constitutional provisions requiring recruitment to the services through the Public Service Commission. It appears that since this Court has in some cases permitted regularisation of the irregularly recruited employees, some governments and authorities have been increasingly resorted to irregular recruitments. The  result had been that the recruitment rules and the Public Service Commissions have been kept in cold storage and candidate dictated by various considerations are being recruited as a matter of course."

(92) Depricating the practice of making appointment dehors the 'Rules' by the State or other State instrumentalies in the case of Dr. Arundhati A. Pargaonkar Vs. State of Maharashtra, AIR 1995 SC 962, the Court rejected the claim of the petitioner therein for regularisation on the ground of long continuous service by observing as under: -

" Nor the claim of the appellant, that she having worked as Lecturer without break for 9 years' on the date the advertisement was issued, she should be deemed to have been regularised appears to be well founded. Eligibility and continuous working for howsoever long period should not be permitted to over-reach the law. Requirement of rules of selection.....cannot be substituted by humane considerations. Law must take its course."

(93) The Hon'ble Supreme Court in State of U.P. & ors. Vs. U.P. State Law Officers Association & ors., AIR  1994 SC 1654 has observed as under:-

" This being so those who come to be appointed by such arbitrary procedure can hardly complain if the termination of their appointment is equally arbitrary. Those who come by the backdoor have to go by the same door. .......The fact that they are made by public bodies cannot best them with additional sanctity. Every appointment made to a public office, howsoever made, is not necessarily vested with public sanctity. There is, therefore, no public interest involved in saving all appointments irrespective of their mode. From the inception some engagements and contracts may be the product of the operation of the spoils system. There need be no legal anxiety to save them."

(94) Even if there are no 'Statutory Rules' or 'Bye-laws' of the society providing a mode of appointment, the Executive Instructions/ Policy adopted by the respondent- society must be there, providing for a mode of appointment. Even if no such Executive Instructions/ Policy/ Guidelines/Circulars etc. are in existence then a fair procedure for appointment has to be adopted in consonance to the provisions of Articles 14 and 16 of the Constitution. (Vide Nagpur Improvement Trust Vs. Yadaorao Jagannath Kumbhare, (1998) 8 SCC 99.

(95) In Ramesh Kumar Sharma & Anr.  Vs. Rajashtan Civil Services Appellate Tribunal & ors., AIR  2000 SCW 4206,  the Supreme Court held that expression 'Service Rules' cannot be given a restrictive meaning in the absence of the definition of the said terms and, therefore, it would include within its sweep, the necessary government orders providing the method of recruitment.

(96) A Constitution Bench of the Supreme Court, in B.R. Kapoor Vs. State of Tamil Nadu, (2001) 7 SCC 231, (Jayalalitha case) has observed that it is the duty of the Court to examine whether the incumbent possesses qualification for appointment and the manner in which the appointment came to be made or the procedure adopted was fair, just and reasonable and if not, appointment should be struck down.

(97) The Supreme Court (Constitution Bench) in Ajit Singh (II) Vs. State of Punjab & ors., (1999) 7 SCC 209,  has held that Articles 14 and 16 (1) are the basic features of the Constitution. The same view has been reiterated in Ashok Kumar Gupta Vs. State of U.P. and ors., (1997) 5 SCC 201;  and  Indra Sawhney Vs. Union of India & ors., (2000) 1 SCC 168, thus, strict adherence is required thereto.

(98) In Kumari Shrilekha Vidhyarthi etc. Vs. State of U.P. and others, AIR 1991 SC 537; and A.P. Aggarwal Vs. Government (NCT) of Delhi & ors., (2000) 1 SCC 600, the Supreme Court has held that every State action, in order to survive, must not be susceptible to vice, the arbitrariness which is a crux of Article 14 of the Constitution and the very basis of the 'Rule of Law'.  

(99) Therefore, any appointment made by a 'Statutory Authority', which may be a State within the meaning of Article 12 of the Constitution, if found to have been made by a person without any competence or without following the procedure prescribed by law and in case the procedure is not prescribed and the procedure adopted by the Authority is not in consonance to the provisions of Articles 14 and 16 of the Constitution, the incumbent cannot claim any benefit as in such a case the contract of service becomes unenforceable and inexecutable.

(100) If the view contrary to the above is accepted, the same would override the mandate of the Constitution also, it will take away the powers of the High Court to issue a writ of quo warranto, wherein the appointment of an incumbent can be challenged not only by an aggrieved persons but a stranger also. Invalidity of an appointment may arise not only from want of qualification, but also from the violation of such legal conditions or procedure for appointment as mandatory and as a result of which the appointment becomes void. (Vide  M. Pantiah & ors. Vs. Muddala Veeramallappa & ors., AIR 1961 SC 1107; University of Mysore Vs. C.D. Govinda Rao, AIR  1965 SC 491; and P.N. Lakhanpal Vs. A. N. Roy, AIR 1975 Del. 66).

(101)  It is well settled that the appointment made from selection dehors the rules or provisions or the 'Act' applicable are unenforceable and inexecutable, thus, are to be set aside as the rule of law. The system and the public at large become susceptible, could never tolerate such illegality and the illegally appointed person being product of spoiled system, however, the declaration of such appointment of the beneficiary candidate to be a defective output or ingenuine  product is to be made undergoing a process or by making inquiry or probe, needed in facts and circumstances in reference to the complaint or on the information to the State or competent authority. However, such probe or inquiry is for the specific purpose unlike disciplinary inquiry, nevertheless is to be exhaustive and broad based to such an extent so that in its optimum amplitude and horizon the effected party being a beneficiary candidate may also be given a chance by associating himself to consider his stand or say treating him a necessary ingredient or component and also in order that all possible aspects might be taken care of indicated above in the process and no scope is left or nothing remains or desired to be placed or incorporated on the part of the beneficiary candidate before finalisation of the verdict or declaration in respect of the ingenuinity or defectiveness or illegalities of selection or appointment or benefits/ gains in any form. The social order, healthy system, interest of justice and interest of public requires that if any person has procured appointment by utilising forged degree or certificate or wrong date of birth or erroneous qualification or has used concocted documents to procure employment then service of such person if terminated by the Court on the sole ground of non-providing of opportunity of hearing or principle of natural justice then this may give unusual message tantamounting acknowledging such deficiencies and illegalities being completely ignored or rectified because the ingenuinity and misdeeds and foul play in the background persists in gain or appointment of such beneficiary candidate and it shall always pinch to the  system as thorn to the healthy body. Likewise also, if one or many of the persons have procured appointment on the basis of some G.O., notification or order or circular, which later on after inquiry or probe turned out to be bogus, fake and non-existent then before declaring the selection or appointment as ingenuine or defective, if any person out of lot has been inquired into and defectiveness of appointment and selection has been proved then beneficiaries in mass are not to be heard separately. The principle of natural justice need not to be stretched too far so as to include in its ambit and scope of providing of opportunity of hearing a full fledged detail inquiry in respect of deficiencies mentioned in paragraph-7 above. It all depends on the facts and circumstances. If some document, order, notification, circular found to be ingenuine and illegal, however, has been utilised for the purpose of procuring  employment then the declaration that such order, document, notification or circular is bogus, forge, fake, non-existent by author or competent authority in whose name these are said to be issued, then beneficiary candidates need not be given opportunity of hearing in the light of the verdict of Supreme Court in B. Sheetal Nandwani (supra).

(102) The defects as referred in paragraph 7 above are few examples only, there may be many more cause depending upon the facts and circumstances affecting the sanctity of appointment or selection or gains derived in any form. Need of hour and public demand is to get best calibre, output or product from the system, for which in deed the productive system has to be made healthy, clean, genuine. In any case everyone discards defective piece as product of spoiled system. If the drawbacks and flaws have cropped up since inception and structural defects inherited in the system of production making it spoiled system, the output / product is bound to be imperfect and defective one, therefore, the defects as indicated or conceived of in paragraph 7 above are to be eradicated on administrative or judicial side, however, in both fairness and observance of principle of natural justice shall be necessary. The competent authority might refer the inquiry report, so made earlier, or look at the proposed inquiry or probe or proceeding to be conducted subsequently taking into consideration records and documents and fixing also specific date, time and place and allowing the beneficiary candidate to avail oral/ personal hearing and to adduce evidences and further permission to examine or cross-examine the witnesses. The beneficiary candidate has to be heard so that truth may be arrived at and it could not be said at any stage that something was left from consideration or desired to be incorporated on the part of the beneficiary candidate. The opportunity of hearing to beneficiary candidate is neither farce, nor mandatory or directory, in every case but is most essential ingredient and legal requirement to be adopted to arrive at truth and to achieve finality and precision in the finding or declaration. The hearing of the beneficiary candidate is in order to bring perfection in the finding on the issue of appointments or selection or gains derived, by covering vital aspects and broad based parameters, and giving weightage on different parameters involved in inquiry or probe and in hearing before or after in reference to the defects depending upon the facts and circumstances. Sometimes the competent authority or inquiry officer may concentrate or contemplate much on the documents or records, sometimes on the oral or written evidences only. Sometimes more weightage over the statement of witnesses may be vital. However, all these shall depend upon the requirement of the case and on the wisdom of the competent authority. In order to ensure precision and fairness in the finding of the inquiry or probe, the beneficiary candidate as an affected party, is to be heard treating him to be an essential component of the inquiry or the declaration. Providing of opportunity of hearing to the beneficiary candidate in reference to the inquiry or probe or declaration may not be so casual, as the beneficiary candidate may drag on hearing unnecessarily. However, depending on the facts and circumstances in a particular case, even a written submission preferred at the choice of the beneficiary candidate may serve the purpose or may be treated as sufficient for observance of principle of natural justice. If by other than conventional mode, during adjudication by the Court/ Tribunal while considering the pleadings of the parties, if the selection or appointment in question is proved or declared as defective then it shall be necessary to hear the affected party in reference to such declaration. If the declaration of the selection or appointment to be defective is not based on inquiry or probe, the beneficiary candidate being affected party may be heard even on subsequent stage, in any case, before passing termination order. In conspectus, the beneficiary candidate being an outcome of such selection, which has been noted to be defective or spoiled selection, on the basis of inquiry or probe acknowledged as such by the Court or Tribunal, shall have no legal right to remain in the employment and is bound to be ceased or ousted in any case but in accordance with law and the affected beneficiary person is either to be heard by associating him in reference to such inquiry or probe or declaration, so that the stand of affected party may be incorporated before taking the decision of ousting him by the competent authority.

(103) In view of the foregoing analysis and observations, now, it is clear when any selection/recruitment or appointment to some post was made or benefits/ gains are procured illegally and it is noticed on the complaint or at subsequent stage that illegalities, irregularities, improprieties, procedural infirmities and deficiencies and defects have occurred, forgery or foul-play adopted or non observance of Act, rules, norms were made in process then the beneficiary candidate, who has become output and product of such defective and bad selection or outcome of spoiled system process shall have no right or claim to the post or salary or any consequential benefits in the service by virtue of such selection or appointment or gains in any form being illegal or void or nonest and being violative of mandate of provisions of articles 14 and 16 of Constitution, but before termination or dismissal of such persons or beneficiaries, a proper inquiry associating with such beneficiary candidates shall have to be made by providing them opportunity of hearing in consonance to the principle of natural justice.  If at the instance of some complaint or at the instance of competent authority or of the State Government or employer, the proper inquiry or probe taking into consideration the facts, circumstances, records, evidences or witnesses has already been made by any of the competent authority and person being a beneficiary candidate has been associated in the said inquiry or probe or investigation and such inquiry has been made in consonance to the principle of natural justice then termination of beneficiary candidate in such circumstances shall not be said to be illegal and such beneficiary candidate is not to be given opportunity of hearing any more, but in the circumstances indicated above if the beneficiary candidate by virtue of being a product of a defective selection or process is dismissed or terminated and no inquiry was ever made as indicated above and such termination order if set aside on the ground of not providing of opportunity of hearing in consonance to the principle of natural justice, the Court at its pleasure may direct a fresh inquiry or probe to be made in accordance with law keeping in view the gravity of defects, charges, drawbacks, allegations involved in the said selection as narrated in paragraph (7) above inherited in the said selection or process or appointment or illegal gains and in order to eradicate defects and evils, which had cropped up or had insinuated from its  inception. If the beneficiary candidate is heard in reference to the inquiry or probe or report by providing him adequate opportunity of hearing in consonance to the principle of natural justice before termination of his service then subsequent another opportunity of hearing shall not be necessary.

(104) In view of the foregoing analysis and observations, the legal propositions are summarised, when the selection or appointment or benefits/ gains in any form procured by one individually or by many collectively on one or other drawbacks or grounds as mentioned above in paragraph-7 are found to be defective or noted as output of spoiled system then following steps are necessary to be observed:

(i) Keeping in view the facts and circumstances of the particular case and the nature of defects, deficiencies, drawbacks in the process, selection or appointment or in the matters of benefits/ gains in any form derived, the Court may evolve any suitable mode and modalities for making inquiry or probe or investigation in order to arrive at truth.

(ii) The beneficiary/ candidate is entitled to opportunity of hearing in consonance to the principles of natural justice before termination of his service.

(iii) If there exists multiple deficiencies out of what have been narrated in the paragraph-7 above or defects are complicated and mixed or issues are infricate for instance, the matter involving bribery, financial irregularities, misuse of powers and offences under Prevention of Corruption Act or involving deep rooted conspiracy then at the command of the relevant Court or at the instance of the State Government or competent authority the inquiry or probe or investigation could be made exhaustively, like, disciplinary proceedings as per applicable relevant rules in a particular case apart from examining and investigating other related documents, records, materials or persons relevant and necessary in the finalisation of controversion and scandal, but for that purpose text of allegations with documents, records, evidences relied upon, evidences and witnesses to be adduced, providing of opportunity of oral hearing, and opportunity to cross-examine the witnesses to the affected parties at fixed date, time and place and such inquiry or probe or investigation to be made in consonance to the principle of natural justice.

(iv) If the defects, deficiencies, irregularities etc. are apparent and not complicated consisting of one or more drawbacks as narrated in paragraph-7 above then only summary inquiry or probe or investigation unlike disciplinary inquiry in consonance to the principle of natural justice in respect of the allegations or defects could be made by examining and having documents, records, materials or persons and taking the responsibility of affected beneficiary party, providing opportunity of hearing to him in consonance to the principle of natural justice.

(v) Where defects, deficiencies, irregularities, fraud or forgery or admissions in a course or benefits/ gains in any form, selections or appointments are referable to the verdict of the Hon'ble Judge or any institutions or institutional head, for instance High Court or Head of Department of the State Government or Constitutional dignitaries, then the controversion or denial of existence of such documents by concerned author are sufficient to annul the benefits/ gains in any form derived in selection or appointment by one or many beneficiary candidates and no opportunity of hearing or observance of principle of natural justice shall be necessary in those cases.    

(vi) When the beneficiary candidate was already associated and heard by observing principle of natural justice in the inquiry or probe in respect of the selection or appointment or in respect of gains in any form and when the inquiry or probe was made suo-moto or on general or specific complaint made on behalf candidates participating in the selection in question or on the basis of preliminary inquiry conducted for and on behalf of the appointing authority or on the basis of audit or inspection report, the State Government or competent authority or employer thereafter has made itself or got conducted a detailed inquiry through C.B.I. or an independent agency or Vigilance department or Committee, taking into consideration all the facts, circumstances, records, evidences and witnesses and on the basis of finding arrived at out of such inquiry, and the selection in question is found to be defective on one or more out of above mentioned drawbacks/ grounds, then further opportunity of hearing to the beneficiary candidate before termination of service is not necessary to be given.

(vii) When for one or many of the drawbacks and grounds mentioned in above 'paragraph 7', the gains or selection or appointment is found defective and the termination of the service of the beneficiary candidate is set aside for not providing opportunity of hearing or for non-observance of principles of natural justice, in those circumstances reinstatement of beneficiary candidate in service with consequential benefits shall not be a usual phenomena.

(viii) Keeping in view the seriousness of defects and drawbacks occurred in the selection or appointment in question, the Court at its pleasure and in the interest of justice and in order to uphold the rule of law, may direct inquiry or probe to be made afresh, allowing the participation of the beneficiary candidate with a view to provide opportunity of hearing in consonance to the principles of natural justice and to take decision within a stipulated time and the Court at its pleasure may not allow the reinstatement of such beneficiary candidate being an output of defective selection till a fresh inquiry is conducted and decision is taken in consonance to the directions of the Court.

(ix) The above mentioned drawbacks or defects cropped up or inherited in the selection or appointment or insinuated from its inception could never be ignored, or overlooked or treated as redundant and could never automatically be said to be rectified or could not be dulcified on the reinstatement of the beneficiary candidate in service when the termination of such beneficiary candidate is set aside on the ground of principle of natural justice.

(x) For reinstatement it is not necessary to show sympathy to the beneficiary candidate for his bonafide, or for claim of no fault on his part or for his innocence.

(xi) When the selection or appointment is found to be defective for one or on many grounds or drawbacks mentioned 'paragraph 7' above, the beneficiary candidate is bound to be brought under penal action even if the misdeeds was not directly attributable on his part and the effect of the setting aside the selection in question would mean and cannote that the selectee / beneficiary candidate shall have no right to the post or to the salary and the salary and perks received by him by virtue of such illegal and unauthorised appointment is normally to be repaid to the State Government or the employer unless the Court for reasons to be recorded does not pass any order for withholding of repayment in a particular case.

(xii) The Court in the interest of justice and to uphold the dignity of rule of law and to maintain fairness in administration, may indicate or may give liberty to the State Government or employer to proceed to take proper action in accordance with law against those authorities or officers, who were instrumental or involved in such defective and  scandalous selection or appointment or illegally extending benefits/gains in any form, so that wrong doers and persons involved might not be ignored for their misdeeds and  misconduct.

(105) According to learned counsel for the respondents, in the facts and circumstances providing of opportunity is not necessary before passing the order dated 18.10.1985 as after careful consideration the termination order has been passed. This stand of the respondents, in my respectful consideration, is not correct. If the petitioner's initial appointment is suffering from procedural deficiencies, irregularities and illegalities and the petitioner has been allowed to serve, legal right was already temporarily accrued to him, therefore, service of the petitioner could never be taken away except in accordance with law. In present case no inquiry was ever conducted to arrive at the finding that the selection or appointment was defective, had an inquiry was made for declaring the selection or appointment in question to be defective, the participation of the petitioner was necessary before inquiry or probe. Even if no inquiry or probe was held, the petitioner may be afforded opportunity of hearing at later stage on such declaration of selection as defective one but before finalisation of decision in respect of termination of his service. The order dated 18.10.1985 is not only an order simplicitor, but the foundation of the said order is also procedural deficiencies, irregularities and illegalities and the said order was passed without affording proper opportunity of hearing to the petitioner. In these circumstances the order dated 18.10.1985 is set aside. However, keeping in view the peculiar facts and circumstances and in view of the fact that the said above alleged defects had cropped up from its inception, it is directed that a fresh decision is to be taken by the Deputy Director, Rajya Krishi Mandi Utpadan Parishad, U.P., for that he shall issue a notice within one month from the date of production of certified copy of this order to the petitioner regarding the declaration or allegations about the selection or appointment or gains in any form or manner and alleged irregularities and procedural deficiencies in the selection or appointment and after considering the records, documents and the explanation and material submitted by the petitioner and by fixing date, time and place for hearing and examining or cross-examining witnesses and if the petitioner wants oral hearing he may be allowed to do so and if the petitioner gives only written statement/ submission that would be treated to be sufficient that he has been heard properly and thereafter a reasoned order shall be passed within six months from the date of notice in accordance with law and in view of observations made above. The petitioner is, however, expected to render all possible cooperation in expediting the above-indicated inquiry or probe. The petitioner's reinstatement to the post and his entitlement for other benefits shall depend upon the decision to be taken by the Deputy Director, Rajya Krishi Mandi Utpadan Parishad, U.P., and the petitioner however shall not be reinstated into service till the decision of said Deputy Director.

In the light of the above observations the writ petition is disposed of.

No order as to cost.

Dated: 18.12.2003

SKT/-    


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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